Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-014816/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:
Andrei Zodian Applicant
and
Continental Casualty Insurance Company Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Harry Steinmetz, Counsel
For the Respondent: Lisa Armstrong, Counsel
HEARD: By way of written submissions
OVERVIEW
1Andrei Zodian, the applicant, was involved in an automobile accident on November 21, 2017, 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, Continental Casualty Insurance Company, 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”) in the amount of $185.00 per week from November 29, 2017 to September 5, 2024?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
iii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
RESULT
3The applicant is entitled to an IRB in the amount of $185 per week from April 7, 2021 to December 9, 2021.
4The applicant is entitled to interest on this amount in accordance with s.51 of the Schedule.
5The applicant is not entitled to an award under s. 10 of Reg. 664.
ANALYSIS
6To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed at the time of the accident and, as a result of and within 104 weeks after the accident, suffer a substantial inability to perform the essential tasks of that employment. The applicant must identify the essential tasks of their employment, which tasks they are unable to perform and to what extent they are unable to perform them. The applicant bears the burden of proving, on a balance of probabilities, that they meet the test.
7The applicant was involved in an accident on November 23, 2017. At the time he was self-employed working for Uber, DoorDash and Favor Delivery as a food delivery driver. He also operated as a sole proprietor, providing voice over internet protocol (“VOIP”) services.
8The respondent agrees the applicant was self employed at the time of the accident.
9The applicant submitted an application for accident benefits on February 8, 2018.
10On February 13, 2018, the insurer made a request pursuant to s. 33 of the Schedule for the applicant’s proof of income.
11On April 9, 2018, the applicant failed to attend a s.44 examination. In a letter dated April 18, 2018, the insurer suspended the IRB as of April 9, 2018 due to non-compliance with s.44 of the Schedule.
12On April 26, 2018, the insurer again requested that the applicant provide proof of income pursuant to s.33 of the Schedule.
13On September 5, 2019, the insurer sent a letter to the applicant confirming that the s.44 assessor found medical eligibility for an IRB. The insurer reiterated their request under s.33 for pre-accident and post accident financial documents.
14The insurer referenced s. 33(6) of the Schedule, which states that they are not liable to pay a benefit in respect of any period of time during which the applicant fails to comply with a request made under s.33 of the Schedule.
15On October 11, 2019, the respondent sent a letter to the applicant suspending the IRB effective September 24, 2019 due to non-compliance with the s.33 request made on September 5, 2019.
16On November 16, 2020, the insurer again requested financial documents pursuant to s.33 of the Schedule.
17There is no further correspondence submitted as evidence or referenced in submissions until April 7, 2021.
The April 7, 2021 letter is not a denial letter
18The applicant submits a letter dated April 7, 2021. In this letter, the respondent informs the applicant that per s.4(5) of the Schedule the quantum of the IRB payable is $0.00 as the applicant has not reported his pre-accident income to the Canada Revenue Agency (“CRA”).
19The letter further states that a person should receive no Income Replacement Benefit if they fail to report their income as required under the Income Tax Act. The respondent further informs the applicant that if income is subsequently reported to the CRA, the respondent will recalculate the benefit.
20The applicant notes that this is not a denial letter, but rather a letter that states the determined quantum for an IRB. The respondent submits that they calculated the quantum of the benefit at $0.00 as the applicant had not filed his taxes.
21I agree with the applicant. This letter was not a denial letter. The letter was a determination that due to the fact the applicant had not filed their 2016 tax return, the applicant would be entitled to an IRB of $0.00 in accordance with s. 4(5) of the Schedule.
22Further, the fact that the respondent was able to calculate the quantum of the benefit leads me to make the finding that the applicant complied with the s.33 request for their pre-accident and post accident proof of income, and their benefits were no longer suspended.
23However, on reviewing this letter, I find that it incorrectly calculated the quantum of benefit the applicant was entitled to.
24Section 4(5) of the Schedule states:
If, under the Income Tax Act (Canada) or legislation of another jurisdiction that imposes a tax calculated by reference to income, a person is required to report the amount of his or her income, the person’s income before an accident shall be determined for the purposes of this Part without reference to any income the person has failed to report contrary to that Act or legislation.
25In the April 7, 2021 letter, the respondent states that:
It is our principal’s determination that the amount of any Income Replacement Benefit payable would be $0.00 (zero) since you did not report your pre-accident income to the Canada Revenue Agency as required under this section of the Statutory Accident Benefits Schedule. The legislative intent behind section 4(5) is that a person should receive no Income Replacement Benefit if they fail to report their income as required under the Income Tax Act.
26From my review of the Schedule, this is a misinterpretation of s.4(5). Section 4(5) does not impose a requirement on an applicant to file a tax return to receive benefits. It states that income not reported under the requirements of the Income Tax Act will be excluded from calculations for IRB entitlement. There is a clear distinction between the two.
27Meanwhile, section 7(2)1ii of the Schedule states that the amount of an IRB in the period beginning 104 weeks post accident is the greater of the amount determined based on pre-accident income or $185.00 per week.
28In this case, the respondent calculated the benefit amount based on pre-accident income at $0.00. However, despite recognizing that the applicant was substantively entitled to the IRB, the insurer failed to acknowledge the applicant was entitled to the quantum of $185.00 in accordance with s.7(2)1ii. The Schedule does not make this $185.00 weekly minimum contingent on the applicant reporting income to the Canada Revenue Agency.
29On December 7, 2021, the respondent wrote a letter detailing the results of a multidisciplinary set of s.44 assessments. As a result of these assessments, the respondent determined that the applicant no longer met the medical test for an IRB. They further state that the benefit will be halted effective December 10, 2021.
30Neither party has made submissions on the reason for these assessments. Nor has the applicant made submissions challenging the respondent’s denial communicated on December 7, 2021.
31This letter further states: “With respect to the amount of this benefit up to the date of the stoppage, we refer you to our previous correspondence of April 7, 2021.” This reinforces the fact that the April 7, 2021 letter was not a denial, but a determination of IRB quantum. This also supports the finding that the applicant’s benefits were no longer suspended for s.33 non-compliance.
32Given this, I find the applicant is entitled to IRB payments in the amount of $185.00 per week from April 7, 2021 until December 9, 2021.
The applicant has not provided a reasonable excuse for non-compliance with the s.33 requests
33The applicant submits that the insurer had a duty to inform the applicant that per s.33(8) of the Schedule, the insurer would not be liable to pay a benefit during periods of non-compliance with a s.33 request, unless a reasonable explanation is given for the delay.
34I disagree with this position. The applicant has not provided any binding authority in support of this requirement, and I am unable to locate this requirement in s.33 of the Schedule.
35In the alternative the applicant has submitted the following explanations for the delayed filing of his tax return and his resulting inability to comply with the respondent’s s. 33 request for his tax return:
i. That he had issues accessing his bank account due to a language barrier; and
ii. That he was in a precarious housing position for much of the time he did not file his taxes.
36The respondent submits that the applicant was capable and did things he wanted to do during this period. Therefore, the above excuses are not reasonable.
37The respondent specifically notes that the applicant ran for Toronto City Council in both the 2018 and 2022 municipal elections, and completed the relevant financial returns.
38They further note that he had represented himself at a Landlord Tenant Board matter, and filed a Human Rights complaint at the Human Rights Tribunal of Ontario.
39I agree with the respondent. It has been submitted that the applicant graduated from the University of Toronto with an engineering degree, he then twice ran for a seat on Toronto City Council, and represented himself before the Landlord Tenant Board. These activities require at a minimum a command of the English language and therefore, I find the applicant had the English language skills necessary to access his banking services.
40The applicant has only submitted that he lost his home in 2013. He has provided no submissions about his living arrangements in 2016 and 2017. Therefore, I am unable to find that this was a reasonable excuse for not filing his 2016 taxes.
41For these reasons, I find that the applicant has not provided a reasonable explanation for complying with the s.33 request and is not entitled to benefits during the period of non-compliance.
Interest
42The applicant is entitled to interest pursuant to s. 51 of the Schedule.
Award
43Section 10 of Regulation 664 provides that, if the Tribunal finds that an insurer has unreasonably withheld or delayed payment of benefits, the Tribunal may award a lump sum of up to 50 per cent of the amount in which the person was entitled.
44The applicant has not made submissions addressing entitlement to an award under s. 10 of Reg 664. Therefore, I find that the applicant is not entitled to an award.
ORDER
45For the reasons above I order that:
i. The applicant is entitled to an Income Replacement Benefit in the amount of $185.00 per week for the period of April 7, 2021 to December 9, 2021;
ii. The applicant is entitled to interest per s. 51 of the Schedule; and
iii. The applicant is not entitled to an award under s.10 of Reg 664.
Released: December 3, 2025
__________________________
Julian DiBattista Vice-Chair