Ann O’Boyle v. Co-Operators General Insurance Company, 2023 CanLII 72649

22-008794/AABS-PI

Licence Appeal Tribunal File Number: 22-008794/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Ann O’Boyle

Applicant

and

Co-Operators General Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR:

Kate Grieves

APPEARANCES:

For the Applicant:

Gordon Harris, Counsel

For the Respondent:

Emily Schatzker, Counsel

Heard:

By Way of Written Submissions

OVERVIEW

1Ann O’Boyle, the applicant, was involved in an automobile accident on June 30, 2020, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant was denied benefits by Co-Operators General Insurance Company, the respondent, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2The sole issue to be decided in this preliminary issue hearing is whether the Applicant was eligible to receive income replacement benefits pursuant to s. 5(1) of the Schedule.

RESULT

3The applicant is not eligible for income replacement benefits pursuant to s. 5(1) of the Schedule.

THE LAW

4Section 5(1)1. of the Schedule provides the criteria an insured person must meet in order to be eligible to claim income replacement benefits, as follows:

a. The insurer shall pay an income replacement benefit to an insured person who sustains an impairment as a result of an accident if the insured person satisfies one or both of the following conditions:

1. The insured person,

(i) was employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment, or

(ii) was not employed at the time of the accident but,

A. was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident,

B. was at least 16 years old or was excused from attending school under the Education Act at the time of the accident, and

C. as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of the employment in which the insured person spent the most time during the 52 weeks before the accident.

ANALYSIS

5I find that the applicant is not eligible for income replacement benefits because she was not employed at the time of the accident and had not worked at least 26 weeks during the 52 weeks before the accident or was receiving EI benefits at the time of the accident.

6The applicant had stopped working prior to the accident, took a period of leave, and then retired. She received payment for her banked hours. The accident occurred approximately five months later. The applicant takes the position that she is entitled to income replacement benefits as a result of having received income in 26 or more weeks in the 52 weeks prior to her accident. She relies on s. 5(1)1.(ii)(A) of the Schedule to claim eligibility for the IRB.

7The crux of the applicant’s argument is that she was still employed and receiving remuneration for services rendered because she received payments for her banked hours.

8The question to be determined is whether, during the period she was on leave but received remuneration, she meets the 26-week requirement of employment.

9The applicant was employed as a nurse for many years. She stopped working on September 5, 2019 and went on a medical leave. The applicant received Employment Insurance benefits for 17 weeks until the end of December 2019. The applicant submitted a letter to her employer dated December 17, 2019, resigning from her position effective January 1, 2020. This date was extended to February 2, 2020, as she was paid out 216 hours of time she had banked during the course of her employment. The OCF-2, prepared by the employer, confirms that she received other compensation, but the total number of weeks worked in the 52 weeks before the accident was 10.

10The question of whether an applicant qualifies as “employed” when they have ceased working before the accident was decided by the Divisional Court in Arab v. Unica, 2022 ONSC 5761 (“Arab”). In that case, the applicant was involved in an accident in September 2016. He last worked in February 2016 and received Employment Insurance benefits until June 2016, but his employment was not formally terminated until after the accident, in November 2016.

11The Divisional Court upheld this Tribunal’s finding that the applicant did not qualify for income replacement benefits, and that it was clear and unambiguous that “employed is connected to income-earning and receiving wages in exchange for services being rendered”. The Court further noted that the current Schedule changed the language of the pre-1996 version which had specifically contemplated a temporary layoff, noting “had the legislature intended for income replacement benefits to be paid during temporary and/or prolonged absences from employment, it could have included that in the legislation, but it did not”. Moreover, although the Schedule is consumer protection legislation, and should be interpreted broadly, “interpreting the term to capture anyone in an employment relationship independent of their income-earning situation does not accord with the overall parameters” of the Schedule.

12I am bound by the Divisional Court’s decision.

13The applicant submits that Arab is distinguishable because she received remuneration until February 2, 2020. She submits that she was being paid wages in exchange for services being rendered. I disagree. Neither the applicant in this case nor the claimant in Arab had rendered services for the 26 weeks of the 52 before the accident. As in Arab, the applicant’s contract was not yet terminated but her services had ceased. She was paid out banked time, she was not receiving wages for services being rendered. The applicant did not render any services after September 5, 2019. Her own OCF-2 does not support her contention.

14The applicant relies on the Tribunal’s decision Coban v. Allstate, 2023 CanLII 40118 (“Coban”). I find that case is distinguishable on the facts. The claimant was found to be employed at the time of the accident because he received compensation for services rendered at that time. The Tribunal found it was not necessary for him to be remunerated by an employer (as WSIB provided the payments) to meet the definition. It was on that basis – who provided the remuneration – that the Tribunal interpreted the term “employed”.

15Although not binding on me, I am persuaded by Nouracham v. Aviva, 2023 CanLII 7274 (“Nouracham”) in which the Tribunal held that the ongoing employment relationship between that claimant and her employer did not make her “employed” when she was not receiving remuneration for services at the time of the accident. The timing of the services must be considered, as well as the remuneration.

16In this case, the applicant was not employed on the date of the accident. She had stopped attending her workplace approximately 9 months prior to the accident. The Employment Insurance benefits ended approximately six months prior to the accident. The Applicant was not receiving wages in exchange for services rendered for more than 10 weeks of the 52 weeks prior to the accident. Although she was paid out for banked time until February 2, 2020, I find that this does not amount to an exchange of remuneration for services being rendered. She had already resigned and was not providing services during that period. She was simply being paid out for past services.

CONCLUSION AND ORDER

17The applicant is not eligible for income replacement benefits pursuant to s. 5(1) of the Schedule.

18Given my finding on this preliminary issue, it is therefore not necessary to address the substantive issues in dispute. The application is dismissed.