Jarbouh v. Intact Insurance Company
Licence Appeal Tribunal File Number: 23-013974/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:
Elias Jarbouh
Applicant
And
Intact Insurance Company
Respondent
DECISION
VICE-CHAIR: Julian DiBattista
APPEARANCES:
For the Applicant: Michael J Wade, Counsel
For the Respondent: Robbie Brar, Counsel
HEARD: By way of written submissions.
OVERVIEW
1Elias Jarbouh, the applicant, was involved in an automobile accident on October 19, 2022, 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, Intact Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.
2In submissions, it has been agreed that the respondent paid the applicant an income replacement benefit (“IRB”) of $23.49 per week to the 104 week mark and has continued with an IRB of $185.00 per week thereafter.
ISSUES
3The issues in dispute are:
i. Is the applicant entitled to an income replacement benefit in the amount of $400.00 per week from October 27, 2022, to date and ongoing?
ii. Is the respondent liable to pay an award under s. 10 of Reg. 664 because it unreasonably withheld or delayed payments to the applicant?
iii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
4The applicant is entitled to an IRB quantum of $23.49 per week in the first 104 weeks following the accident. This amount has been paid by the respondent.
5I decline to make a finding on a post-104 IRB as this benefit is being paid at $185.00 per week in accordance with the Schedule.
6There is no entitlement to interest or an award under s. 10 of Reg 664.
ANALYSIS
The applicant must use the last completed tax year to calculate their benefit
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 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.
8To receive payment for a post-104-week IRB under s. 6 of the Schedule, the applicant must demonstrate on a balance of probabilities that they suffer from a complete inability to engage in any employment or self-employment for which they are reasonably suited by education, training or experience.
9The respondent submits that the applicant meets the medical test for both a pre-104-week IRB and a post-104-week IRB.
10The dispute is limited to the quantum of the IRB benefit.
11The applicant submits that he should be able to use his income from the 52 weeks prior to the accident to calculate the benefit in accordance with s. 4(2)2 of the Schedule.
12The respondent submits that Section 4(3) of the Schedule defines a person’s weekly income or loss from self-employment at the time of the accident as “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).“
13I agree with the respondent.
14The accident took place on October 19, 2022, therefore the period under s. 4(3) on which to base the benefit is the January 1, 2021-December 31, 2021 tax year.
15The applicant had no income or loss from self-employment during the 2021 tax year. From his Notice of Assessment, all 2021 income was from either rental income or the Canada Recovery Benefit.
16The applicant has cited FT v The Co-Operators Insurance Company, 2022 CanLII 2807 (ON LAT) (“FT”) as an authority for his position.
17At paragraph 50, the Tribunal found:
Pursuant to section 4(2)2 the applicant has designated the last 52 weeks as the period to be used to calculate his pre-accident gross income. The applicant may not use the landscaping business’ last fiscal year before the accident because as per section 4(2)3 there was no fiscal year for the landscaping business that was completed on or before the day of the accident. Thus, the applicant is confined to the last 52 weeks before the accident for the calculation of his IRBs.
18The respondent submits that it is well-established that calculation of “gross annual income” of an individual who is self-employed, but not employed, at the time of the accident, must be calculated per s. 4(3) of the Schedule.
19I disagree with the applicability of FT, as the Schedule clearly defines the calculation of IRB quantum for a self-employed individual. I note that FT is not a binding authority in this dispute.
20Section 4(2)2 allows for the applicant to designate the last 52 weeks as the period to calculate their gross employment income, s.4(2)2i and s. 4(2)2ii restrict the circumstances under which the applicant can make that designation.
21Section 4(2)2i states that s.4(2)2 can be used if the person was employed at the time of the accident.
22Section 4(2)2ii states that s. 4(2)2 can be used if the applicant was not employed at the time of the accident but was employed for at least 26 weeks during the 52 weeks before the accident or was receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.
23Neither of the conditions covered in subparagraphs 4(2)2i or 4(2)2ii are applicable to the applicant’s situation.
24The applicant was neither employed at the time of the accident nor receiving benefits under the Employment Insurance Act (Canada) at the time of the accident.
25Therefore, the applicant’s benefit must be calculated using the last completed tax year per s.4(3) of the Schedule.
26I find that the respondent accurately calculated the benefit using the values from the 2021 Notice of Assessment. Based on these documents, the quantum of benefit entitlement has been calculated at $23.49 per week.
Interest
27As no benefits are owing, no interest is payable.
Award
28As I have found no benefits were unreasonably withheld or delayed, there is no basis for me to consider an award under s.10 of Reg 664.
ORDER
29Based on the reasons above, I order that:
i. The applicant is entitled to an IRB quantum of $23.49 per week in the first 104 weeks following the accident. This amount has been paid by the respondent.
ii. There is no entitlement to interest or an award under s. 10 of Reg 664.
30I decline to make a finding on a post-104 IRB as this benefit is being paid at $185.00 per week in accordance with the Schedule.
Released: July 22, 2025
Julian DiBattista
Vice-Chair