Citation: Coban v. Allstate Insurance, 2024 ONLAT 21-012430/AABS

Licence Appeal Tribunal File Number: 21-012430/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:

Josef Coban

Applicant

and

Allstate Insurance

Respondent

DECISION

ADJUDICATOR: Rachel Levitsky

APPEARANCES:

For the Applicant: Joseph Obagi, Counsel

For the Respondent: Jennifer Griffiths, Counsel

HEARD: By way of written submissions

OVERVIEW

1Josef Coban, the applicant, was involved in an automobile accident on October 6, 2018, 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, Allstate Insurance, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute, as outlined in the Case Conference Report and Order (“CCRO”) of March 28, 2022, are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) of $276.04 per week from October 13, 2018, to date and ongoing, less any amounts paid by the respondent?

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

3The parties’ submissions are limited to whether the applicant was “employed” at the time of the accident, although this was never formally added as a “preliminary issue”. Neither party made submissions with respect to the applicant’s substantive entitlement to IRBs, the quantum of the benefit, or his entitlement to interest. The respondent submits that the parties agreed that they would only make submissions regarding whether the applicant was “employed” as of the date of the accident. This is in line with the applicant’s submissions and is not disputed by the applicant. I am accordingly unable to make a determination with respect to the issues as they are listed in the CCRO. Instead, I find that the decision I must make at this hearing is whether the applicant was “employed” at the time of the accident, pursuant to s. 5(1)(1) of the Schedule.

RESULT

4The applicant was not “employed” prior to the accident pursuant to s. 5(1)(1) and is accordingly not entitled to IRBs.

ANALYSIS

Facts agreed upon by the parties

5Since April 3, 2015, and through to the date of the accident, the applicant was in receipt of payments from the Workplace Safety & Insurance Board (“WSIB”) following a workplace injury which occurred on December 15, 2014.

6At the time of the accident, the applicant was in receipt of a gross weekly payment from WSIB in the amount of $651.61.

7Following his workplace injury but prior to the accident, the applicant became enrolled in a two-year program at Algonquin College to be retrained as an Architectural Technician as part of his Work Transition Plan (“WTP”) through WSIB. After the completion of this program, he pursued a third year of study to obtain his Architectural Technologist Diploma with an expected graduation date of April 2019. The WSIB approved an amendment to his WTP to accommodate this change of plans.

8In addition, in consultation with the WSIB, he pursued and was offered a summer job at COLE & Associates Architects Inc. (“COLE”) as a Project Administrator with a start date of July 3, 2018. WSIB accordingly amended his WTP as follows:

i. The applicant would work 37.5 hours per week from July 3, 2018, through August 31, 2018;

ii. COLE would not pay the applicant directly for his work; and

iii. WSIB would continue to make payments to the applicant in the amount of $651.61 per week while he was working at COLE.

9Although the work placement came to an end on August 31, 2018, the applicant and COLE agreed to continue his work placement, which was approved by WSIB. The WTP was amended as follows:

i. The applicant would work 8 hours per week over the fall semester up to December 21, 2018;

ii. Cole would not pay the applicant directly for his work; and

iii. WSIB would continue to make payments to the applicant in the amount of $651.61 per week while he was working at COLE.

10The applicant fully complied with all of the conditions of the WTP through to the date of the accident and worked the mandated weekly hours with COLE.

11As a result of the injuries sustained by the applicant in the accident, he was no longer able to continue work at COLE and was therefore unable to comply with the WTP.

12On October 19, 2018, the WSIB informed the applicant that since he was no longer able to comply with the WTP, he would not longer be entitled to his regular weekly payments from WSIB in the amount of $651.61. The amount would be reduced to $257.27 per week effective November 5, 2018. This reflects a change from full to partial benefits based on the wage he could earn in a suitable occupation without training.

Was the applicant “employed” at the time of the accident?

13I find that the applicant was not “employed” prior to the accident pursuant to s. 5(1)(1) and is accordingly not entitled to IRBs.

14In order for an insured person to be eligible to receive an IRB, s. 5(1)(1) of the Schedule specifies that they must have been employed at the time of the accident, or for at least 26 of the 52 weeks prior.

15The term “employed” is not defined in the Schedule. However, the term “gross employment income” in s. 4(1) refers to “salary, wages and other remuneration from employment, including fees and other remuneration for holding office, and any benefits received under the Employment Insurance Act (Canada), but excludes any retiring allowance within the meaning of the Income Tax Act (Canada) and severance pay that may be received”.

16The Divisional Court in Kawa Arab v. Unica Insurance, 2022 ONSC 5761 [“Kawa Arab”], which is binding on me, interpreted the definition of “employed” as being “connected to income-earning and receiving wages in exchange for services being rendered.” The Court further clarified:

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.

17I agree with the applicant that he had an employment relationship with COLE. Although WSIB oversaw the arrangement, he submitted an application to COLE, he was interviewed by COLE, he filled an actual position at COLE, he was required to work a set amount of hours per week, and his day-to-day tasks were decided by COLE. However, for the following reasons, I find that he did not receive remuneration in exchange for the services he provided to COLE.

18Prior to the start of the WTP, the applicant received $651.61 per week. The original WTP included the applicant’s enrolment in a college program, job search training, and employment placement services; the applicant was not employed anywhere, and he still received $651.61 per week. After he began working at COLE, the weekly amount did not change. I do not accept that the applicant received remuneration in exchange for the services he provided when the remuneration was not dependent on whether he was actually providing those services.

19Further, as outlined in the agreed statement of facts, the applicant was the one who sought to continue his work placement with COLE after his summer job had ended, and this required approval by the WSIB. His continued work at COLE was not mandated by the WSIB in order for him to continue receiving payments.

20In a letter from WSIB dated January 4, 2019, it was noted that the applicant was forced to discontinue his studies due to his motor vehicle accident. The WSIB advised the applicant that it was closing the WTP, and that he should contact the WSIB when he believed he could start to plan for a return to his studies. The applicant’s ability to work was not mentioned. The WTP in place at the time of the accident included the applicant being able to work for COLE, and after the accident the applicant was no longer able to comply with the WTP. However, based on the wording of this letter and the fact that the applicant was the one who requested a continued work placement with COLE, it stands to reason that if the applicant were to return to his studies, the WTP would not necessarily include a requirement that he also engage in employment activities. I find that this letter is further evidence that the payments the applicant was receiving (and their subsequent reduction) were not contingent on the applicant providing services to COLE or any other employer.

21The applicant submits that by not recognizing his employment with COLE, he becomes entirely disentitled to IRBs. He argues that an interpretation of the Schedule which would result in inadequate, unjust, and unfair compensation is an interpretation which should be rejected in favour of one that complies with the nature of the legislative scheme as being one of consumer protection. However, the applicant agrees that the determination of whether he is “employed” involves an analysis of whether he received remuneration in exchange for services rendered, as outlined in Kawa Arab. Regardless of the outcome, I am bound to engage in a factual analysis in that respect.

22As I have found that the applicant did not receive remuneration in exchange for his services to COLE, I accordingly find that he was not “employed” pursuant to s. 5(1)(1) and is therefore not entitled to IRBs.

ORDER

23The applicant was not “employed” prior to the accident pursuant to s. 5(1)(1) and is accordingly not entitled to IRBs.