Omoruyi v. TD General Insurance Company, 2025 CanLII 23491

Citation: Omoruyi v. TD General Insurance Company, 2025 ONLAT 24-005585/AABS

Licence Appeal Tribunal File Number: 24-005585/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:

Josephine O Omoruyi

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATOR:

Bernard Trottier

APPEARANCES:

For the Applicant:

Sam C. Pitaro, Counsel

For the Respondent:

Karen Klaiman, Counsel

Argita Shehaj, Counsel

Court Reporter:

Laura Tang

Heard by videoconference:

January 22, 2025

OVERVIEW

1Josephine Omoruyi, (the “applicant”), was involved in an automobile accident on October 13, 2023, 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 TD General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issues in dispute are:

1. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 20, 2023 to date and ongoing?

2. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?

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

RESULT

3For the reasons that follow, I find that:

1. The applicant is entitled to income replacement benefits (“IRBs”) from October 20, 2023 to the date of the insurer’s examination (“IE”) physiatry assessment on May 2, 2024.

2. Although the applicant is entitled to receive IRBs, the quantum of IRBs is nil.

3. The respondent is not liable to pay an award.

4. The applicant is not entitled to interest.

ANALYSIS

The applicant’s employment status leading up to the date of the accident

4The applicant worked as a certified personal support worker (“PSW”) at the Perth Community Care Centre (“PCCC”) in Perth, Ontario, starting in September of 2021.

5From September of 2021 to December 31, 2022, the applicant was an employee of BHA Placement Network Inc. (“BHA”), an agency that provided PSW personnel to PCCC. During that period, the applicant was paid directly by BHA. BHA withheld income taxes and handled Canada Pension Plan (“CPP”) and Employment Insurance (“EI”) remittances on her behalf. The applicant’s work schedule was managed by PCCC and BHA, and day-to-day activities were managed by the PCCC nurse supervisor for each shift.

6At the end of 2022, the applicant was informed by BHA that they were exiting the business and that the applicant would need to find a new staffing agency. The applicant selected SugiCare Staffing Corp. (“SugiCare”), who would be handling PSW staffing at PCCC going forward. SugiCare required, as a condition of working for SugiCare, that each PSW register a business. The applicant was told that she would be paid, by SugiCare, similarly to what she was paid by BHA before, but that SugiCare would not pay benefits, would not withhold income taxes, and would not handle CPP and EI remittances. The applicant registered an Ontario business called Josessyjo on December 16, 2022, and she started the proposed arrangement with SugiCare on January 1, 2023.

7The applicant’s Employer’s Confirmation Form/OCF-2, dated November 2, 2023 indicates that the last date worked by the applicant was September 23, 2023.

Questions to determine eligibility for income replace benefits (“IRBs”)

8The analysis of IRB eligibility in this matter consists of three parts:

1. Does the applicant suffer a substantial inability to perform the essential tasks of her employment as a result of the accident?

2. Was the applicant “employed” or “self-employed” as defined by the Schedule?

3. Even if “self-employed”, can the applicant rely on her employment income in the fiscal year before the accident, or self-employment income in the year of the accident, to calculate the quantum of IRBs?

Does the applicant suffer a substantial inability to perform the essential tasks of her employment as a result of the accident?

9Based on the evidence before me, I find that the applicant suffered a substantial inability to perform the essential tasks of her employment as a result of the accident. She therefore meets the entitlement test for IRBs, but only from October 20, 2023 to the date of the insurer’s examination (“IE”) physiatry assessment on May 2, 2024.

10To receive payment for an IRB under s. 5(1) of the Schedule, the applicant must be employed or self-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.

11The applicant submits that she continues to suffer a substantial inability to perform the essential tasks of her pre-accident employment. The respondent submits that the applicant suffered soft tissue injuries and that at no time did she meet the substantial inability test.

12The applicant submits that the Employer’s Confirmation Form/OCF-2, provided by SugiCare on November 2, 2023, identifies that the applicant was employed from January 1, 2023 to September 23, 2023 and that her job consisted of assisting clients with their activities of daily living including feeding, lifting and bathing. I accept that these are essential activities of the applicant’s employment as a PSW.

13The applicant submits that, after the accident, she was not able to work at PCCC due to her injuries. In support of her claim, the applicant submitted a Disability Certificate/OCF-3 to the respondent on November 14, 2023. The OCF-3 was submitted by Dr. Mohammed Agyemang, chiropractor, who opined that the applicant had injuries to the following muscles and tendons and associated sequelae:

1. Neck level: other headache syndromes

2. Thoracic spine: dizziness and giddiness

3. Shoulder and upper arm: injury of head, unspecified

4. Abdomen, lower back and pelvis: ankle/foot sprain/strain

5. Hip and thigh level: knee sprain/strain

14The OCF-3 stated that the applicant suffered a substantial inability to perform the essential tasks of her employment and that she was unable to return to her work activities, even with modified duties or hours.

15The applicant submits as well that the clinical notes and records (“CNRs”) of Dr. Emmanuel Ogueri, general practitioner with the Jane and Wilson Medical Centre (the applicant’s walk-in clinic), indicate that the applicant attended follow-up visits on November 14, 2023 and November 28, 2023. Dr. Ogueri referred the applicant for ultrasound imaging of the right shoulder and right knee, as well as x-rays of the right shoulder, right knee and lumbar spine. The ultrasounds and x-rays were conducted on November 30, 2023 and the reports were provided to the respondent.

16The respondent requested a multidisciplinary IE of the applicant, documented in a report dated June 12, 2024, consisting of three assessments:

1. Physical medicine and rehabilitation specialist (“physiatry”) assessment, conducted by Dr. Adam Kassam, physiatrist, on May 2, 2024

2. Psychology assessment, conducted by Nicole Azizli, psychologist, on May 3, 2024

3. Functional abilities evaluation (“FAE”), conducted by Dr. Harry Kaufman, chiropractor, on May 29, 2024.

17In his report, Dr. Kassam indicates that he reviewed the applicant’s ultrasound and x-ray diagnostic reports and performed an in-person physical examination. Dr. Kassam opines that, at the time of his examination, the applicant had uncomplicated soft tissue injuries to her right shoulder girdle, lumbar spine and right knee. He opined that, from a musculoskeletal perspective, the applicant did not suffer a substantial inability to perform the tasks of her pre-accident employment as a result of the accident.

18In her report, Ms. Azizli, indicated that she conducted a psychological assessment of the applicant to examine her reported pain management and sleep issues. Ms. Azizli conducted psychometric testing and an in-person psychological assessment. Based on the applicant’s self-reports, interview, psychometric testing and observations, Ms. Azizli opined that the applicant’s limitation with respect to resuming work, if any, were physical in nature and not psychological.

19In his FAE, Dr. Kaufman noted that the applicant indicated that her essential tasks of employment included patient care and changing linens. The applicant indicated that the demands were “frequent” in reaching, gripping and standing, and “occasional” in a variety of other demands, including bending, crouching, carrying, pulling, pushing and lifting. Dr. Kaufman opined that, at the time of his assessment, the applicant demonstrated the ability to perform work at light levels, but, based on his testing of the applicant’s sincerity of effort, he opined that the applicant’s abilities are likely greater than demonstrated.

20I find that, based on the evidence before me, the applicant was unable to perform the essential tasks of her employment as a result of the accident in the period immediately following the accident. The applicant directed me to correspondence with the respondent, on November 16, 2023, December 13, 2023 and December 20, 2023, that stated that the respondent’s review of the OCF-3 indicated that the applicant suffered a substantial inability to engage in the essential tasks of her employment. This correspondence states as well that the OCF-3 made the applicant eligible for IRBs.

21At the hearing, the respondent did not direct me to any medical evidence that indicated that the applicant had the ability to perform the essential tasks of her pre-accident work in the period immediately following the accident. I find that the applicant has met her burden, based on the uncontroverted evidence of Dr. Agyemand and Dr. Ogueri, that she met the medical entitlement to IRBs starting October 20, 2023.

22I find the multidisciplinary IE reports of Dr. Kassam, Ms. Azizli and Mr. Kaufman persuasive in that they opine that, at the time of their assessments, the applicant had recovered from her injuries and she no longer met the test of entitlement to IRBs. The burden lies with the applicant to prove entitlement, and at the hearing the applicant did not direct me to any medical evidence to indicate that the applicant still had, at the time of the IEs, a substantial inability to perform the essential tasks of her employment as a result of the accident. Based on the uncontroverted reports of the IE assessors, and because the applicant’s injuries were physical rather than psychological, I find that the end date for medical entitlement to IRBs is the date of the physiatry assessment, namely May 2, 2024.

23For the reasons above, I find that the applicant suffered a substantial inability to perform the essential tasks of her employment as a result of the accident from October 20, 2023 to May 2, 2024.

Was the applicant “employed” or “self-employed” as defined by the Schedule?

24Under s. 4(2)1 of the Schedule, the quantum of IRBs for an employed person who becomes unable to perform the essential tasks of their employment is based on 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.

25Under s. 4(3), the quantum of IRBs for a self-employed person is based on the gross employment during the business’s last fiscal year that ended on or before the day of the accident.

26The applicant argues that she was “employed” at the time of the accident and is therefore entitled to an IRB quantum of $400.00 per week, per s. 4(2)1. The respondent argues that the applicant was “self-employed” at the time of the accident, and, under s. 4(3), is entitled to an IRB quantum of nil since the applicant’s business, Josessyjo, reported no income in 2022.

27The dispute over the quantum of IRBs arises since the applicant submits that even though she had registered a business (as required by SugiCare), she did not fit the definition of “self-employed”. The applicant testified the following as indicators that she was “employed”:

1. Her job activities before she registered her business were the same as after; her work schedule and day-to-day activities continued to be directed by the PCCC.

2. She did not work for any other clients.

3. She did not collect or remit harmonized sales tax (“HST”).

4. Her paycheques were made out to her personally and not to Josessyjo; paycheques were deposited into her personal bank account and not to a business account.

5. As part of her Canada Revenue Agency (“CRA”) income tax filing for 2023, she did not file a Statement of Business Activities. She did not claim any business expenses in her income tax return.

6. SugiCare provided an Employer’s Confirmation Form/OCF-2, dated November 2, 2023 that identified the applicant as an employee.

28The respondent submits the following as evidence that the applicant was “self-employed”:

1. On December 16, 2022, the applicant registered her business name, Josessyio, with the Ontario Ministry of Public and Business Services Delivery.

2. The applicant’s paystubs for 2023 from SugiCare indicate that no income taxes were withheld, and no CPP or EI remittances were paid on behalf of the applicant.

3. On January 16, 2024, Monica Al, Managing Director of SugiCare, indicated that the applicant was an “independent contractor” and not an employee.

4. As part of the applicant’s 2023 income tax return, the applicant did not receive or submit a T4/Statement of Employment Income from SugiCare. Instead, she submitted a T1/Income Tax and Benefit Return that identified her income as “self-employed commissions”.

29The applicant submits that the Schedule is meant to be interpreted in a liberal manner, since as consumer protection legislation, it is not meant to exclude injured persons from receiving benefits to which they are entitled.

30The respondent submits that the Schedule is meant to be interpreted narrowly so that IRB quantum decisions would be clear and unambiguous. The respondent relies on s. 4(3) of the Schedule:

A self-employed person’s weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year as determined in accordance with Part I of the Income Tax Act (Canada).

31In support of her submission that the applicant should be considered “employed”, the applicant directed me to the decision in Ahmad Farid v Aviva Canada Inc. (2016 ONFSCDRS 343) (“Farid”). In Farid, the Financial Services Commission of Ontario (the “FSCO”) found that the definitions of “employed” and “self-employed” in the Schedule should be relied upon. In Farid, the applicant considered himself self-employed. He charged HST and his client did not provide benefits, withhold income taxes or remit CPP and EI. The applicant argues that the finding in Farid is instructive, because the FSCO found that it was whether the person was actually engaging in an occupation as a sole proprietor that determines it to be so. In the present matter, the applicant submits that she was not engaging in her occupation as a sole proprietor, and that she could not be considered “self-employed”. Because she did not engage in her occupation as “self-employed”, the applicant submits that the Tribunal should find her to be “employed.”

32The respondent countered that Farid was based on an accident that occurred in 2014 and the dispute arose since prior to the current Schedule, there was not such a clear definition of self-employed persons. The Schedule then in effect was the Statutory Accident Benefits Schedule - Effective September 1, 2010, Ontario Regulation 34/10, as amended (the “2010 Schedule”). The 2010 Schedule used the term “self-employed” without a definition. The respondent submits that a definition of “self-employed” was inserted into the Schedule in 2016 and that the Tribunal must use that definition in its interpretation. The respondent cited Farid, that stated that prior to 2016 parties “had to look for factual indicia to sort out whether or not someone was self-employed”. The respondent argues that the definition of “self-employed” must prevail over whether the applicant considered herself “employed” or “self-employed”.

33Section 280(4) of the Insurance Act compels the Tribunal to resolve disputes in accordance with the Schedule, including the applicable definitions of “self-employed person” and “self-employment” in s. 3(1) which are as follows:

“self-employed person” means a person who,

(a) engages in a trade, occupation, profession or other type of business as a sole proprietor or as a partner, other than a limited partner, of a partnership, or

(b) is a controlling mind of a business carried on through one or more private corporations some or all of whose shares are owned by the person;

“self-employment” means a trade, occupation, profession or other type of business the essential tasks of which are carried on by a self-employed person;

34I note that the Schedule does not provide “factual indicia” as described in Farid to determine whether an injured person meets the definition of employed or self-employed. Therefore, I find the management of the applicant’s schedule and daily activities, whether she worked for more than one client, whether she collected HST, what bank account she used, and whether she claimed business expenses, are not meaningful in determining whether the applicant meets the definition of “self-employed”.

35The Schedule relies on the Income Tax Act (Canada), in its determination of IRB quantum in s. 4(3). The Tribunal normally relies on CRA documents in determining IRB quantum for employed persons, under s. 4(2)1, since these provide clear and unambiguous facts on which to base decisions. Despite the submission that the applicant did not consider herself “self-employed”, the view of SugiCare and the CRA was that she was “self-employed”. SugiCare provided the applicant with a T1/Income Tax and Benefit Return that identified her income as “self-employed commissions”. In her 2023 income tax return, the applicant identified her income from her work at PCCC as “self-employed commissions” and not as employment income. The applicant did not direct me to any correspondence from the CRA that disputed that the applicant was self-employed in 2023.

36In interpreting the definition of “self-employed”, I find the characterization of the applicant’s status for tax purposes, by Sugicare and the CRA, more persuasive that the applicant’s view of her employment status. I find that an injured person’s subjective opinion of their employment status does not provide me with the guidance required to base clear and unambiguous decisions.

37I find that, at the time of the accident, the applicant was engaged in the occupation of a PSW as a sole proprietor. SugiCare stated that the applicant was an “independent contractor” and provided a T1/Income Tax and Benefit Return that identified her income as “self-employed commissions”. While the applicant submits that she did not engage in certain activities normally associated with running a business, such as claiming business expenses, I cannot accept that these factors changed her status to “employed”. These factors are akin to the pre-2016 indicia and therefore are not relevant in light of the definition of a self-employed person in the current Schedule.

38I find that the applicant carried on the essential tasks of her occupation as a self-employed person. I find that her occupation meets the Schedule’s definition of “self-employment.” As a result, my interpretation of the definitions in the Schedule is that the applicant was self-employed at the time of the accident.

Can the applicant rely on her employment income in the fiscal year before the accident, or self-employment income in the year of the accident, to calculate the quantum of IRBs?

39As stated in the applicant’s 2023 CRA Income Tax Return, the applicant’s net employment income in 2022, when she was an employee of BHA, was $99,201. The applicant’s self-employment income in 2022 was nil. The applicant’s self-employment income in 2023 was $43,791.

40The applicant submits that, even if the Tribunal finds that the applicant was self-employed from January 1, 2023 to the date of the accident, her employment income in the prior fiscal year, per s. 4(2)3, should still be included as a basis of pre-accident income and she would still be entitled to the statutory maximum of $400.00 per week.

41In the alternative, the applicant submits that self-employment income in 2023 can also be used to calculate the quantum of her IRBs.

42Section 4(2)3 of the Schedule states that if a person who qualifies under s. 5(1)1(i) (i.e., was “employed”) and was a self-employed person at any time during the four weeks before the accident and:

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.

43The applicant argues that the word “may” in s. 4(2)3 should be interpreted liberally and that she may designate her 2002 employment income as the basis for her IRB calculation, even if she were found be “self-employed” at the time of the accident.

44The applicant cites the following sections of the Schedule in support of this argument, with the applicant’s emphases underlined:

1. s. 4(1): gross employment income means salary, wages and other renumeration from employment.

2. s. 7(2)1(i): the weekly base amount is 70 per cent, if any, by which the sum of the insured person’s gross weekly employment income and weekly income from self-employment exceeds the amount of the insured person’s weekly loss from self-employment.

3. s. 7(2)2: to the amount under s. 7(2)1(i), add 70 per cent of the amount of the insured person’s weekly loss from employment that he or she incurs as a result of the accident.

4. s. 4(2)2(i): the person’s gross annual employment income is his or her gross employment income for the 52 weeks before the accident if the person qualifies under s. 5(1)1(i) (i.e., was “employed”) and was a self-employed person at any time during the four weeks before the accident.

45The applicant argues that s. 4(2)3 does not exclude other income earned in the previous year. The applicant argues that s. 4(2)3 says the person may add employment income earned in the previous fiscal year even if the person was self-employed at the time of the accident.

46Finally, the applicant argues that it would be absurd of the Schedule to deduct from IRBs 70 per cent of any and all income earned after the accident, per s. 7(3), but to not include any and all income earned before the accident as a basis for the same IRB calculation.

47In support of her argument, the applicant directed me to the following authorities:

1. V.H. v Aviva Insurance Company of Canada (2019 CanLII 130385 ON LAT) (“V.H.”)

2. K.D. v Aviva Insurance Company (2020 CanLII 27383 ON LAT) (“K.D.”)

48While the Tribunal is not required to comment on every piece of evidence or authority relied upon by a party to a dispute, as described in Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) (2011 SCC 62, [2011] 3 SCR 708), I will note how the above authorities inform the present case.

49The applicant argues that V.H. supports her argument that her gross employment income should be used as the basis for the IRB calculation. However, in V.H., the adjudicator found that s. 4(2) is only applicable when the self-employed person was also employed or recently employed on a part-time basis. In V.H., the adjudicator found than the applicant was solely self-employed at the time of the accident and therefore the applicant’s IRB calculation was based on the most recent fiscal year of self-employment per s. 4(3).

50The adjudicator in V.H. found that the word “may” only applied if the applicant was both employed and self-employed at the time of the accident. The adjudicator found that the applicant was solely self-employed, and therefore the option to utilize employment income as a basis for IRB calculations was denied. Given that I have found the applicant was solely “self-employed” at the time of the accident, I find that V.H. does not support the applicant’s argument that she may use her previous year’s employment income as a basis for IRB calculation.

51In K.D., the applicant was unambiguously self-employed on the date of the accident, and the applicant had no self-employment income for the previous fiscal year. As a result, the applicant in K.D. was entitled to an IRB of nil. The applicant argues that in K.D., the applicant had been self-employed for several years, while, in the present case, the applicant did not have any self-employment in the previous fiscal year. The applicant argues that the adjudicator in K.D. recognized that there are circumstances where a strict interpretation of s. 4(3) could create an unjust result, an unintentional blind spot and unfairness to the applicant.

52I find that the applicant’s arguments regarding K.D. do not direct me to an example of where the Tribunal decided to avoid an unjust result and correct an unintentional blind spot in the Schedule. To the contrary, I find that the decision in K.D., while I am not bound by it strictly, supports a literal, narrow interpretation of the Schedule, and does not support an expansive interpretation.

53The respondent directed me to decisions where the narrow interpretation for calculating IRB quantum was upheld, including V.H. and K.D. mentioned above, as well as:

1. Waterloo Insurance v Switzer (2023 ONSC 604) (“Waterloo”)

2. Aarooj v TD General Insurance Company (2024 CanLII 10502 ON LAT) (“Aarooj”)

3. Eid v Allstate Insurance Company of Canada (2022 CanLII 87729 ON LAT) (“Eid”)

54In Waterloo, the Ontario Superior Court ruled that an injured person who is self-employed must meet the employment requirements of s. 5(1)1 if they are to rely on this section to calculate the quantum of IRBs they would receive under s. 5(1)2. In other words, the Court ruled they must have been both self-employed and employed at the time of the accident to have the option of designating their employment income in the previous year as the basis for their IRB calculation.

55In Aarooj, there was no dispute that the applicant was solely self-employed. The decision in Aarooj references V.H. with a similar outcome, in that a self-employed person may choose to utilize employment income in the prior fiscal year only in the situation where he or she was both employed and self-employed at the time of the accident.

56In Eid, the adjudicator found that the applicant was solely self-employed at the time of the accident. The adjudicator disagreed with the applicant’s argument to base the IRB calculation on the 52 weeks of self-employment income preceding the accident, rather than on the previous fiscal year per s. 4(3).

57Waterloo directs my decision in this matter, supported by Aarooj, Eid, V.H. and K.D., that the use of the word “may” in s. 4(2)3 only applies in situations where an injured person was eligible for IRBs under s. 5(1)1 at the time of the accident. I have found that the applicant in the present matter was solely self-employed at the time of the accident. Therefore, she is not eligible for IRBs under s. 5(1)1 and the quantum of IRBs can only be calculated using s. 4(3). I find that s. 4(3) of the Schedule determines that the basis for her IRB calculation is income from the business for the last completed taxation year, as determined in accordance with Part I of the Income Tax Act (Canada).

58I find the applicant has not met her burden in demonstrating that the Schedule allows her to designate her employment income during her business’s previous fiscal year as the basis to calculate entitlement to IRBs.

59The application of s. 4(3) does not allow me to consider self-employment income in the year of the accident as a basis for calculating the quantum of IRBs. The language in s. 4(3) is meant to provide a clear and unambiguous basis for calculating a self-employed person’s pre-accident income, namely the business’s previous fiscal year. The applicant has not directed me to any section of the Schedule that allows her to designate her self-employment income in 2023 as the basis to calculate her quantum of IRBs.

60I am not persuaded by the applicant’s argument that it would be absurd to deduct post-accident income from their entitlement to IRBs, per s. 7(3), but to not include pre-accident income in that same calculation, per s. 7(2). Section 7 provides the method for calculating the amount of IRBs but relies on the interpretations of s. 4 to define the bases for those calculations.

61I find that because the applicant was solely self-employed at the time of the accident, she may only use her prior year’s self-employment income for the prior fiscal year as the basis for her IRB calculation. Because her business did not report any income in the prior fiscal year, the quantum of IRBs is nil.

The applicant’s entitlement to IRBs is nil

62I find that:

1. The applicant suffered a substantial inability to perform the essential tasks of her employment as a result of the accident from October 20, 2023 to May 2, 2024.

2. At the time of the accident, the applicant was solely self-employed.

3. Because she was solely self-employed, she could only claim entitlement to IRBs based on s. 4(3) of Schedule, which states that a self-employed person’s weekly income or loss from self-employment at the time of the accident is the amount that would be 1/52 of the amount of the person’s income or loss from the business for the last completed taxation year as determined in accordance with Part I of the Income Tax Act (Canada).

4. Because the applicant’s income for the previous year was nil, the applicant’s entitlement to IRBs is nil.

Award

63The applicant sought an award under s. 10 of Reg. 664. Under s. 10, the Tribunal may grant an award of up to 50 per cent of the total benefits payable if it finds that an insurer unreasonably withheld or delayed the payment of benefits. Since no benefits are payable, no award is payable.

Interest

64Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. Since no benefits are payable, no interest is payable.

ORDER

65For the reasons above, I find that:

1. The applicant is entitled to IRBs from October 20, 2023 to the date of the IE physiatry assessment on May 2, 2024.

2. Although the applicant is entitled to receive IRBs, the quantum of IRBs is nil.

3. The respondent is not liable to pay an award.

4. The applicant is not entitled to interest.

66The application is dismissed.