Citation: Bolshan v. TD Insurance Meloche Monnex, 2023 ONLAT 21-008601/AABS

Licence Appeal Tribunal File Number: 21-008601/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:

Yuri Bolshan

Applicant

and

TD Insurance Meloche Monnex

Respondent

DECISION

ADJUDICATOR:

Stephanie Kepman

APPEARANCES:

For the Applicant:

Tina Lubman, Paralegal

For the Respondent:

Priyanka Monpara, Counsel

HEARD:

In writing

OVERVIEW

1Yuri Bolshan (the “applicant”) was involved in an automobile accident on June 19, 2019, 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 the respondent, TD Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) of $400.00 per week from March 2, 2020, to June 7, 2020, less applicable deductions?

ii. Is the applicant entitled to interest on any overdue payment of benefits?

RESULT

3The applicant is not entitled to an IRB because he failed to comply with section 33(1) of the Schedule and the Tribunal’s order. The applicant is not entitled to interest.

ANALYSIS

The applicant is not entitled to an IRB

4The applicant submits that he is entitled to an IRB in the amount of $400.00 per week less applicable deductions, from July 15, 2019, to June 7, 2020. The respondent noted that the start date of the IRB was agreed to at the Case Conference as being March 2, 2020.

5Upon my review of the Case Conference Report and Order, the respondent is correct and the period of dispute for the IRB that shall be considered is from March 2, 2020, until June 7, 2020.

6The applicant submits that the issue in dispute is not his entitlement to an IRB, but the quantum in light of deductions and that, due to the respondent’s miscalculations, he is owed $10,782.57 in total for an IRB for the disputed period.

7The applicant relies on his Employment Confirmation Form (“OCF-2”), his employment paystubs from March 30, 2020, until June 29, 2020, his Sun Life Financial Return to Work Plan for March 2, 2020, until June 8, 2020, and a chart he created titled “IRB Weekly Calculation Table”, which he submits substantiates his position.

8The applicant also relies on the case of State Farm Mutual Automobile Insurance Company v. Kumuthakumary Kulaveerasingam, 2018 ONFSCDRS 110. In this matter, the Financial Services Commission of Ontario (“FSCO”) found that the applicant was entitled to an IRB based on 70 percent of the applicant’s gross weekly employment income, which was used to find the “weekly base amount” and then made deductions based on the applicant’s Canada Pension Plan (“CPP”) from the applicant’s weekly base amount.

9Here, the applicant submits that he was receiving collateral, short-term and long-term disability payments, similar to a CPP, and, based on the applicant’s paystubs and his IRB calculation chart, the applicant ought to be entitled to the disputed IRB in the amount he proposes.

10The respondent submits that the applicant has not shown that he is entitled to any “shortfall” in IRB payments. The respondent also submits that the applicant has failed to comply with section 33 of the Schedule and that his application ought to be dismissed.

11The respondent submits that the applicant was receiving short-term disability payments but is not aware of how much of said payments were made by the applicant’s employer versus his collateral benefits provider. The respondent submits that, based on section 7 of the Schedule, the breakdown of these payments will determine if the applicant is entitled to any IRB payments due to the deductions prescribed by the Schedule.

12The respondent submits that the applicant has failed to provide his income tax records, employment file and collateral insurance/benefits including his short-term and long-term disability file and coverage booklet. The respondent relies on the applicant’s employment paystubs from March 30, 2020, until June 29, 2020, his Sun Life Financial Return to Work Plan for March 2, 2020, until June 8, 2020, the Case Conference Report and Order dated September 13, 2022, and its section 33 letters sent to the applicant on December 6, 2021, March 29, 2022, April 27, 2022, and June 8, 2022, requesting the above-listed information.

13The respondent submits that the applicant was earning 75 percent of his salary during the disputed period, and therefore, is not entitled to an IRB due to deductions related to his employment and collateral benefit payments. The respondent also submits that the applicant has miscalculated his weekly short-term and long-term disability payments in his chart by his net figures, not his gross.

14The respondent also relies on the matter of 17-001274 v Unifund Assurance Company, 2017 CanLII 85688 (ON LAT), where the Tribunal found that collateral benefits under the Schedule were implemented with a deduction to prevent “double recovery” and that was the reason IRB payments were based on an applicant’s gross earnings.

15Section 33(1)1 of the Schedule states that an applicant shall, within 10 business days of receiving a request from an insurer, provide the insurer with any information reasonably required to assist the insurer in determining the applicant’s entitlement to a benefit. Section 33(6) of the Schedule states that the insurer is not liable to pay a benefit for any period where the insured person fails to comply with section 33(1).

16Section 4(5) of the Schedule provides that when an insured is required to report his income for an IRB, it shall be determined based on his income taxes.

17Section 7(1) of the Schedule states that the amount of an income replacement payable to an insured person who becomes entitled to the benefit before his 65th birthday is the lesser of “A” and “B” where, A is the weekly base amount found in section 7(2) of the Schedule, less all other income replacement assistance for the week the benefit is payable, and B is $400.

18Section 7(2)1 of the Schedule states that to determine the weekly amount of income replacement benefit payable to an insured person, it is the greater amount of section 7(2)1 i., meaning the weekly base amount is determined by calculating 70 percent of the amount of the sum of the insured person’s gross weekly employment income for the first 104 weeks of disability or, under subsection ii, $185 if the weekly IRB is for a week for which the person is entitled to receive an IRB after the first 104 weeks of disability.

19Section 47(1)1 of the Schedule states that an insurer may deduct any temporary disability benefit the insured person receives from his IRB amounts payable.

20I find that the applicant is not entitled to an IRB because he failed to comply with the respondent’s section 33 requests. After reviewing the parties’ evidence and positions, I must respectfully disagree with the applicant’s argument that his paystubs and return-to-work plan provide the respondent with the information the applicant was ordered to provide.

21I note that the Case Conference Report and Order dated September 13, 2022, ordered the applicant to provide his income tax returns, employment file and information related to his collateral benefits, short-term and long-term disability and benefit booklet. I also agree that the respondent has shown that the applicant failed to comply with the Tribunal’s Order.

22I reject the applicant’s arguments that his paystubs, return to work plan and chart provide the respondent and the Tribunal with the information it requires to determine if the applicant is entitled to any IRB payment after deductions. Based on sections 4 and 7 of the Schedule, the applicant’s IRB is subject to different deduction rates depending on whether he is receiving payments from his employer versus from his collateral benefits provider.

23I reviewed the applicant’s paystubs and back-to-work plan and was unable to determine the breakdown of the applicant’s employment versus collateral benefit payments. I also agree there were errors related to using the applicant’s net collateral benefit payments in his calculation chart.

24I note that the respondent is entitled to a copy of the applicant’s income taxes, employment file and collateral benefits issued, based on the Case Conference Report and Order. Had the applicant taken issue with this request, he ought to have raised this at the Case Conference or via motion to the Tribunal. The applicant’s unilateral decision to deprive the respondent of properly requested and ordered productions cannot be ignored.

25I did not find the matter of State Farm Mutual Automobile Insurance Company v. Kumuthakumary Kulaveerasingam, persuasive, as in that matter, there was no issue with the applicant providing his income taxes and payment details, unlike the current matter. Therefore, I reject the applicant’s argument related to this matter and, in any event, FSCO decisions are not binding on the Tribunal.

26Instead, I found 17-001274 v Unifund Assurance Company was similar to the current matter before the Tribunal because the applicant was receiving a monthly income payment, aside from the IRB, where deductions were possible. I also agree that the issues related to collateral benefits in the Schedule serve the purpose of preventing double recovery.

27Moreover, in the subject matter, because the applicant has failed to provide the required, financial information to determine his earnings and applicable deductions, the respondent has been deprived of the opportunity to fully understand the potential for double recovery. For these reasons, I found this matter persuasive.

28I agree that since the applicant has not provided the respondent with the document the respondent requires, which the applicant was ordered to provide and was requested under section 33(1), the respondent is not liable to pay for the IRB.

Interest

29Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are outstanding, no interest is found to be payable.

ORDER

30The applicant is not entitled to the IRB because he failed to comply with section 33 of the Schedule.

31The applicant is not entitled to interest.