Licence Appeal Tribunal File Number: 24-013201/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:
Lejaun Salmon
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
VICE-CHAIR: Neil Levine
APPEARANCES:
For the Applicant: David Himelfarb, Counsel Silene Malhao, Counsel
For the Respondent: Stephen Whibbs, Counsel
Court Reporter: Laura Tang
HEARD by Videoconference: August 6, 2025
OVERVIEW
1Lejaun Salmon, the applicant, was involved in an automobile accident on October 12, 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 the respondent, Sonnet Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2The applicant was previously designated as catastrophically impaired by the insurer. The applicant sought income replacement benefits of $400.00 per week, while the respondent submits that the applicant is employed as a contractor and therefore is entitled to $185.00 per week.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit of $400.00 per week from October 20, 2020 ongoing? Note: entitlement to an IRB is not an issue. The quantum of the benefit is at issue based on the applicant’s employment status.
ii. Is the applicant entitled to interest on any overdue payment of benefits?
4Note: The applicant withdrew issues 2, 3, 4 and 5 (medical services and treatments, and an award) as listed in the case conference order.
RESULT
5For the reasons that follow, I find that:
i. The applicant is entitled to income replacement benefits in the amount of $400.00 per week from October 20, 2020 ongoing.
ii. The applicant is entitled to interest on overdue benefits.
APPLICABLE LAW
6The parties agree that the applicant is entitled to income replacement benefits. The parties disagree on the quantum of benefits based on whether the applicant was employed or self-employed.
7Section 4(2)(2)of the Schedule provides that for a person who was not a self-employed person at any time during the four weeks before the accident, the person’s gross annual employment income is whichever of the following amounts the person designates:
a. the person’s gross employment income for the four weeks before the accident, multiplied by 13; or
b. the person’s gross employment income for the 52 weeks before the accident.
8Section 4(2)(3) of the Schedule provides that if the applicant was self-employed for at least one year before the accident, the person may designate as his or her gross annual employment income the amount of his or her gross employment income during the last fiscal year of the business that ended on or before the day of the accident.
ANALYSIS
The applicant is an employee
9For the reasons outlined below, I find the applicant to be an employee for the purposes of the calculation of his IRB. Therefore, the applicant is entitled to the income replacement benefit claimed.
10The applicant submits that he was employed at the time of the accident and therefore entitled to an IRB quantum of $400.00 per week, per s. 4(2)1. The respondent submits that the applicant was self-employed at the time of the accident, and under s. 4(3) is entitled to an IRB quantum of $185.00 per week.
11The question before me is whether the applicant was employed or self-employed as defined by the Schedule. The applicant points to the Supreme Court’s comments from 67122 Ontario Ltd v Sagaz, 2001, 2 SCR 983, 2001 SCC 59 about whether someone is determined to be “employed” or “self-employed.” The SCC noted that a single conclusive test does not exist. The SCC stated that what must always occur is a search for the total relationship of the parties.
12Section 3(1) of the Schedule provides definitions for “self-employed person” and “self-employment.” To be considered self-employed, the applicant must either be a shareholder and controlling mind of a corporation or a sole proprietor or partner. I do not find the applicant to be self-employed.
13The applicant worked as a labourer at Skyway Canada in Toronto. He had no discussion with representatives of Skyway Canada about his work situation or status and always believed he was an employee, as he was treated as such and supervised by a Skyway representative. The company set his hours of work and breaks, and he always wore a uniform provided by the company.
14The applicant was paid weekly by a representative of an employment agency, First Choice Employment Solutions, Mr. Corey Flynn. The applicant did not have tax deducted on these weekly cheques because the agency was unaware that he had a social insurance number.
15I make this finding based on the testimony of the applicant and the witness, Mr. Flynn, the representative of First Choice. Mr. Flynn testified that the agency committed an error in not taking the applicant’s weekly deductions for taxes and WSIB benefits. Mr. Flynn admitted that if he was aware that the applicant had a social insurance number, then deductions would have been made. Mr. Flynn was apologetic in his testimony to the Tribunal and was credible, and he acknowledged this mistake. Mr. Flynn also testified that the only distinction between the two types of labour (casual and permanent) that his company supplied to Skyway was artificial: all workers would be treated as employees.
16In all other respects the applicant performed daily duties at an assigned place and time, arranged by Skyway Canada Inc. at their place of business and with materials and tools supplied by them. The applicant’s hours and duties were controlled by Skyway. He was also entitled to overtime pay when his hours per week exceeded the statutory 44 hours per week.
17He was not a shareholder nor a controlling mind of a corporation, nor was the applicant a sole proprietor or partner. For all intents and purposes and based on his daily activities and the evidence presented, he was an employee.
18I find that on a balance of probabilities, the applicant is an employee for the purposes of the Schedule. While he did not have benefits available nor were income tax or WSIB premiums collected, he meets all the definitions of an employee. He did not set his own hours, he was supervised, he had no employees of his own, he adhered to all Skyway company policies and agreed to these policies, he was provided with and was required to wear a uniform supplied by Skyway, and equipment was provided for him. The applicant had no business of his own, and did not bill for his services. Even if he was not directly an employee of Skyway, he fits the definition of an employee.
19I do not accept the assertion of the respondent that the applicant was not “managed” as an employee when the testimony from the applicant, the applicant’s employment agency and Skyway’s yard foreman and supervisor of the applicant, Mr. Ibrahim Muzamil, show the contrary. This evidence shows that the applicant was indeed managed as an employee on a daily basis and for the entirety of his employment until his injury.
20Nor do I not accept the argument from the respondent that because the name on the cheque was different from the name of the business and location at which he worked, the applicant was therefore “self employed” as a contractor. Many businesses pay their employees through numbered companies, and names on cheques can be different from the actual business.
21Finally, I do not accept that because source deductions were not made on the applicant’s weekly pay, that this denotes that he was not an “employee.” In fact, the employment agency acknowledged that this was a mistake on their part. It is also notable that there were no invoices presented by the applicant to the agency or Skyway for his services and therefore no HST charged.
22In my view, considering the evidence as a whole, this is not an example of a self-employed or business-to-business relationship but rather one of an employee-employer.
The applicant is entitled to an income replacement benefit of $400.00 from June 27, 2024 ongoing
23As noted above, both parties agree that the applicant is entitled to an Income Replacement Benefit. The dispute is over the quantum of IRB that should be paid.
24If the applicant is employed, then Section 4(2) of the Schedule says that the gross annual employment income is either the person’s gross employment income for the four weeks before the accident, multiplied by 13, or the person’s gross employment income for the 52 weeks before the accident.
25Section 4(3) of the Schedule says that if the applicant was self-employed for at least one year before the accident, the person may designate as his or her gross annual employment income the amount of his or her gross employment income during the last fiscal year of the business that ended on or before the day of the accident.
26These amounts are subject to section 7(1) which provides that the maximum amount of an IRB is $400.00 per week and the $185.00 per week maximum in section 7(2) in the case of someone who is self-employed.
27As I have found the applicant to be employed for the purposes of the calculation of his Income Replacement Benefit, section 4(2) applies. Therefore, he is entitled to an Income Replacement Benefit of $400.00 per week from October 20, 2020 ongoing, which is the maximum provided in section 7(1).
Interest
28Interest applies on the payment of these overdue benefits pursuant to s. 51 of the Schedule.
ORDER
29I order that:
i. The applicant is “employed” for the purpose of the calculation of his Income Replacement Benefit.
ii. The applicant is entitled to an IRB of $400.00 per week from October 20, 2020 ongoing.
iii. The applicant is entitled to interest.
Released: December 8, 2025
Neil Levine
Vice-Chair