Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 23-003094/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:
Evan Kosiner
Applicant
and
Sonnet Insurance Company
Respondent
DECISION
ADJUDICATOR:
Nathan Prince
APPEARANCES:
For the Applicant:
Dean Trinetti, Counsel
For the Respondent:
Christopher J. Schnarr, Counsel
HEARD:
By way of written submissions
OVERVIEW
1Evan Kosiner, the applicant, was involved in an automobile accident on November 7, 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.
ISSUES
2The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $1,000.00 per week from November 14, 2020 to January 4, 2021?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to income replacement benefits.
4As no benefits are payable, no interest is due.
ANALYSIS
The applicant is not entitled to income replacement benefits (“IRBs”)
5I find that the applicant has not demonstrated on a balance of probabilities that he meets the test for IRBs.
6The applicant is seeking entitlement to pre-104 week IRBs for the period from November 14, 2020 to January 4, 2021.
7To 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 his employment, which tasks he is unable to perform and to what extent he is unable to perform them.
8The applicant submits that, at the time of the accident, he was employed with Stadium Events as a producer and show runner for CBC/TSN Radio. His OCF-2 lists the essential tasks of his job as coordinating, budgeting, planning, and reporting to various broadcast productions and government consulting. The applicant submits that, as a result of the accident, he suffered from cognitive difficulties and post concussion symptomology which prevented him from working between November 14, 2020 and January 4, 2021.
9The respondent submits that the applicant’s OCF-2 cannot be relied upon as there are inconsistencies with respect to the applicant’s purported employment at the time of the accident and, as such, the applicant has not met his burden under s. 5(1) of the Schedule.
10For the reasons that follow, I find that the applicant has not demonstrated, on a balance of probabilities, that the OCF-2 is an accurate reflection of his employment at the time of the accident. As such, I find the applicant has not identified the essential tasks of his employment and is therefore not entitled to IRBs.
11First, the applicant submitted two OCF-1s: one on November 16, 2020 and one on November 18, 2020. The first OCF-1 indicates that the applicant was employed with Stadium Events and working 40 hours per week with a gross annual income of $206,285.54. The second OCF-1 indicates that the applicant was self-employed with Kosiner Adventure Capital Inc/Go cards/buy now media Inc. and working 80 hours per week with a gross annual income of $120,000.00. The applicant did not address why two conflicting OCF-1s were submitted and I am therefore unable to ascertain which OCF-1 accurately reflects the applicant’s employment at the time of the accident.
12Second, the applicant’s description of the essential tasks of his employment to assessors is inconsistent with the tasks outlined in the OCF-2. For example, during the s. 44 assessment conducted by Dr. Howard Platnick, general practitioner, on March 1, 2021, the applicant described his employment as “mostly setting up and organizing large stadium events” and that he was “the onsite project manager to set up before the events and also during the events”. He reported lifting 60-pound speakers and feeding wire throughout the event spaces. I find that this description does not align with the essential tasks of employment outlined in the OCF-2.
13Third, a pre-accident mental health assessment was conducted on May 3, 2020 by Dr. David Harel, psychiatrist, wherein the applicant advised that he had “made an exit….” a couple of years prior as he had profited a couple of million dollars and was now retired. Again, this does not align with the applicant’s OCF-2 which indicates that he was employed with Stadium Events between July 1, 2019 and the date of the accident.
14Fourth, the applicant’s counsel explicitly notified the respondent that the OCF-2 was inaccurate. On December 15, 2020, counsel for the applicant wrote to the respondent stating “Further be advised that our client is, in fact, self-employed. The OCF-2 will need to be re-done.” The respondent sought clarification in a responding email on December 17, 2020 and applicant’s counsel again confirmed that the OCF-2 was incorrect and that corrections to the applicant’s employment status would need to be made. Notwithstanding, a new OCF-2 was never completed. The applicant did not make any submissions as to why a new OCF-2 was not completed or why he ultimately relied on the original OCF-2 in his submissions notwithstanding his prior admission that it was not an accurate reflection of his employment.
15Finally, the applicant has not provided any corroborating evidence to support his pre-accident employment income. The Case Conference Report and Order required the applicant to provide “Copies of all income tax returns, notices of assessments, bank records, T4’s ROE’s and pay stubs relative to the period in dispute”. These documents were never provided to the respondent or filed with the Tribunal. I draw an adverse inference because the applicant did not comply with this Order. I find that the absence of corroborating documents further casts doubts as to the nature of the applicant’s employment at the time of the accident.
16Based on the applicant’s own correspondence indicating that the OCF-2 is inaccurate, in addition to the various discrepancies outlined above, I find, on a balance of probabilities, that the OCF-2 is not indicative of the applicant’s employment at the time of the accident. As I have found the applicant’s OCF-2 cannot be relied upon, I am unable to ascertain the applicant’s pre-accident employment tasks.
17As a result, I find that the applicant has not identified the essential tasks of his employment, which tasks he is unable to perform and to what extent he is unable to perform them, and he has therefore not met his burden under s. 5(1) of the Schedule. As such, I find that the applicant is not entitled to IRBs.
Interest
18Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As there are no payments owed, the applicant is not entitled to interest.
ORDER
19For the above reasons, I find that:
i. The applicant is not entitled to income replacement benefits;
ii. As no benefits are payable, no interest is due; and
iii. The application is dismissed.
Released: May 28, 2025
Nathan Prince
Adjudicator