Licence Appeal Tribunal File Number: 21-000224/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:
Hamad Nouracham
Applicant
and
Aviva General Insurance Company
Respondent
DECISION AND ORDER
ADJUDICATOR:
Christopher Evans
APPEARANCES:
For the Applicant:
Jade Borne, Paralegal Samia Alam, Counsel
For the Respondent:
Leanne Zabudsky, Counsel
Interpreters (Arabic):
Bayan Qandla Rawdha Abed Amal Khoury
Court Reporter:
Jason Nebelung
HEARD: by Videoconference:
October 3-6, 2022
BACKGROUND
1Hamad Nouracham (the “applicant”) was involved in an automobile accident on March 21, 2018, and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”).1 The applicant was denied certain benefits by Aviva General Insurance Company (the “respondent”) and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service.
2The respondent paid the applicant an income replacement benefit (“IRB”) of $145.91 per week until January 14, 2019. The applicant alleges that she continued to be entitled to an IRB. The respondent submits that the applicant was never entitled to an IRB, and that it paid the benefit up to January 14, 2019 in error. It does not seek repayment of the amount paid.
ISSUES
3The issues in dispute are as follows:
Is the applicant entitled to an IRB of $145.91 per week from January 14, 2019 to date and ongoing?
Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant does not meet any of the eligibility criteria for an IRB set out in s. 5(1) of the Schedule. Consequently, she is not entitled to an IRB or interest.
ANALYSIS
1. Is the Applicant Entitled to an IRB?
5Section 5(1) of the Schedule sets out the eligibility criteria for an IRB. To be eligible under s. 5(1)(1)(i), the insured person must have been employed at the time of the accident.
6Prior to the accident, the applicant worked on an “on call” basis at a pasta factory. A company called Blitz Personnel would call her if work was available. She worked nine of the 17 weeks between October 9, 2017 and February 6, 2018 in varying amounts, from 11 hours per week to 29 hours per week.2
7The applicant submits that she was employed at the time of the accident and qualifies for an IRB under s. 5(1)(1)(i). She argues that although she was not earning wages at the time of the accident, an employment relationship existed between her and Blitz.
8The respondent submits that the applicant is not eligible for an IRB because she was not earning wages in return for services at the time of the accident. It argues that the existence of an employment relationship is insufficient in itself to satisfy s. 5(1)(1)(i).
9The Divisional Court interpreted the requirement that an insured person be employed at the time of the accident in Kawa Arab v Unica Insurance, 2022 ONSC 5761 (Div Ct) (“Arab”). In that case, the applicant had been absent from work for approximately seven months before the accident, but was not formally terminated until approximately two and a half months after the accident. He argued that he was employed at the time of the accident even though he was not working because an employment relationship still existed. The Court rejected this argument, holding that to be employed within the meaning of s. 5(1)(1)(i), an insured person must receive remuneration in exchange for services over a defined period of time:
[29] Although the legislation does not define the term “employed”, when the term is read in its ordinary grammatical sense and considered within the context of Part II of the Schedule it is clear and unambiguous that section 5(1) is not just about the existence of a formal employment relationship. Its purpose is to determine the eligibility to income replacement benefits with reference to the exchange of wages, salary, or other remuneration for services, over a defined period.
10In this case, the accident did not occur during a period when the applicant was receiving remuneration for services. Her last day worked was six weeks and one day before the accident. Given that the availability of work varied considerably from week to week, it appears that when Blitz offered her work, it was for a period of one or several days at most. The accident did not occur during one of those periods. The same would be true even if Blitz had offered work on a weekly or monthly basis.
11The applicant argues that Arab is distinguishable on three grounds:
In Arab the applicant was voluntarily absent from work, but in this case the applicant was willing to do work when it was available;
In Arab the applicant’s employer issued five Records of Employment and sent the applicant a termination letter, but in this case Blitz did neither; and
In Arab the applicant did not return to work, but in this case the applicant returned to work at Blitz in October 2018.
12The respondent argues that the applicant makes factual claims that are unsubstantiated or that misconstrue the evidence, but in any event, the alleged distinctions do not change the fact that s. 5(1)(1)(i) requires there have been an exchange of remuneration for services.
13I agree with the respondent. The existence of an ongoing employment relationship does not satisfy s. 5(1)(1)(i) if the accident does not occur during a period when the applicant is receiving remuneration for services. Even if the applicant’s circumstances differ from those in Arab as she claims, they do not establish that she is entitled to an IRB.
14Because the applicant was not employed at the time of the accident within the meaning of s. 5(1)(1)(i), she is not entitled to an IRB.
2. Is the Applicant Entitled to Interest?
15As there are no overdue payments, the applicant is not entitled to interest.
ORDER
16The applicant is not entitled to an IRB or interest.
17The application is dismissed.
Released: February 3, 2023
__________________________
Christopher Evans
Adjudicator
Footnotes
- O Reg 34/10.
- Employer’s Confirmation Form (OCF-2) dated August 27, 2018. Exhibit 1, Tab 19 at 482; Blitz Personnel Pay Stubs. Exhibit 1, Tab 24.