Citation: Azarcon v. Wawanesa Mutual Insurance Company, 2026 ONLAT 24-014100/AABS

Licence Appeal Tribunal File Number: 24-014100/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:

Denise Azarcon

Applicant

and

Wawanesa Mutual Insurance Company

Respondent

DECISION

ADJUDICATOR:

Teresa Walsh

APPEARANCES:

For the Applicant:

Ryan Naimark, Counsel

For the Respondent:

Stacey Morrow, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Denise Azarcon, the applicant, was involved in an automobile accident on June 5, 2024, 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, Wawanesa Mutual Insurance Company. The applicant applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2As outlined in the Case Conference Report and Order released on March 21, 2025, and the applicant’s submissions, the issues in dispute are:

i. Is the applicant entitled to an income replacement benefit (“IRB”) in the amount of $42.00 per week from June 12, 2024 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

3The applicant is not entitled to an IRB.

4The respondent is not liable to pay an award under s. 10 of Reg. 664.

5As no benefits are owing, no interest is payable.

ANALYSIS

Relevant IRB entitlement criteria

6The eligibility criteria for a pre-104 week IRB are set out in s. 5(1) of the Schedule. Of specific relevance to the dispute in this case is the portion of s. 5(1) which provides that an insured person is entitled to receive an IRB if they satisfy two criteria:

i. they were employed or self-employed at the time of the accident; and,

ii. as a result of and within 104 weeks after the accident, they suffer a substantial inability to perform the essential tasks of that employment or self-employment.

Was the applicant employed or self-employed at the time of the accident?

7For the following reasons, I find that the applicant was self-employed at the time of the accident.

8In addressing whether the applicant was employed or self-employed at the time of the accident, I have considered the definition of “self-employed” in s. 3(1) of the Schedule, which states 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.

I note that the Schedule does not include a definition of “employed person” or “employment”.

9Further, I note that the Schedule itself does not reference any factors or indicators to assist in determining whether an applicant seeking an IRB is self-employed or employed. These are found in relevant case law.

10The applicant submits that she was an employed person for three weeks leading up to the day of the accident. In support of her submission, the applicant relies on information she provided during her examination under oath, emails between an individual named “Nick” and the applicant’s law firm, and a payslip. She submits that, taken together, information from these sources indicates that:

i. on May 20, 2024, the applicant began working as an online academic writer for Inkmypapers, a Singapore-based company;

ii. her job description included assisting students with writing papers and completing homework;

iii. the applicant’s pay was based on $2,000 Philippine pesos per one thousand words;

iv. she worked approximately two to three hours a day on Mondays, Tuesdays, Wednesdays and Fridays for the three weeks; and

v. she was paid a total of $240.00 in Canadian dollars for this work.

11In submitting that she does not meet the definition of a “self-employed person” in s. 3(1) of the Schedule, the applicant relies on Omoruyi v. TD General Insurance Company, 2025 CanLII 23491 (ONLAT) (“Omoruyi”), confirmed in the reconsideration decision in Omoruyi v. TD General Insurance Company, 2025 CanLII 75762 (ONLAT). The applicant submits that, unlike the applicant in Omoruyi, who was found to be self-employed, she has not operated a business, registered a sole proprietorship, or filed income under an income tax return as business or self-employment income or commissions. According to the applicant, she performed assignments given to her by Inkmypapers and earned wages from the company in exchange for her labour, without any of the hallmarks of self-employment.

12The applicant also submits that any ambiguity as to whether she was employed or self-employed at the time of the accident must be resolved in her favour, in accordance with the consumer protection mandate underlying the Schedule.

13The respondent does not deny that the applicant had an “arrangement” with Inkmypapers as set out above. However, the respondent’s primary position is that the applicant was neither employed nor self-employed under the arrangement. In support of its position, the respondent submits that:

i. the applicant did not produce any contract regarding her arrangement with Inkmypapers;

ii. information provided by “Nick” in his emails to the applicant’s law firm indicates that the applicant was a “contract worker” or “casual worker”, she did not receive any sick pay, vacation pay or other benefits from Inkmypapers for the services she provided, and Inkmypapers did not maintain an employment file for her;

iii. an Employer’s Confirmation Form (OCF-2) provided by the applicant is not signed by an Inkmypapers representative, but rather is signed by the applicant herself;

iv. a payslip provided by the applicant does not reflect salary or wages in the usual sense but is simply a bank transfer for freelance work, and is dated October 16, 2024, months after the work performed; and

v. in any event, the applicant’s work for Inkmypapers during the three-week period was “unauthorized” and “irregular”, as the applicant was in Canada on a visitor visa at the relevant time.

14First, I note that I do not accept the respondent’s submission that the applicant is not entitled to an IRB due to her visa status in Canada. This is because the respondent has not pointed to legal authority that the Schedule prohibits an insured person from claiming an IRB because they were in Canada under a visitor’s visa at the relevant time. As noted by the applicant, s. 4(5) and s. 4(6) of the Schedule both indicate that income tax legislation of “another jurisdiction” outside Canada may be taken into account in calculating the quantum of an IRB. In my view, the Schedule contemplates that income may be from another jurisdiction.

15Based on the totality of evidence before me, I find that the applicant was self-employed for the three-week period leading up to the accident.

16The key reason for my finding that the applicant was self-employed is the lack of any evidence of a formal employment relationship between Inkmypapers and the applicant, including by way of an OCF-2 signed by the company and/or a signed contract of employment. In support of my finding, I note that in Arab v. Unica Insurance, 2022 ONSC 5761 (“Arab”), the Divisional Court found that the term “employed” in s. 5(1) of the Schedule denotes “the existence of a formal employment relationship.”

17Further, I find that the payslip produced by the applicant provides little support for an employment relationship between the applicant and Inkmypapers. My finding is based, in part, on the payslip reference to the employer being “Arthur Lawson.” The applicant does not explain how, or even if, Inkmypapers is related to Arthur Lawson. Also, the payslip refers to the applicant as a “contractor”, rather than an “employee”. Moreover, the applicant does not explain why the payslip is dated four months after she completed the three weeks of work. Given this gap in time between the work done and the payslip, together with the reference to the applicant as a contractor and the inconsistency in the name of the employer, I find that the payslip does not provide evidence of an employment relationship as claimed by the applicant.

18I find that additional indicia of a self-employment relationship are provided by the Inkmypapers representative Nick, who consistently refers to the applicant as a “casual” or “contract” worker in his correspondence with applicant’s counsel. Nick states that the applicant was not paid an hourly or weekly wage for services provided, but rather received remuneration based on the number of words written ($2,000 Philippine pesos per one thousand words). I find that the foregoing description of the applicant’s relationship with Inkmypapers and how she was paid are consistent with the applicant engaging in “business as a sole proprietor” as set out in s. 3(1) of the Schedule.

19I also find that the wording of s. 3(1) does not specify that an insured person have a registered business name to be deemed self-employed, as submitted by the applicant.

20I have also considered that, while the applicant included in her hearing materials a Notice of Assessment (“NOA”) from the Canada Revenue Agency for the 2024 tax filing year, it indicates only that the applicant declared net income of $250.00, with no explanation of the source or characterization of that income as employment or self-employment/business income. The income amount in the NOA does not match the payslip from the applicant indicating that she earned $240.00. Further, the NOA provides that no income tax was deducted from the $250.00 in reported income. The applicant did not produce her 2024 income tax return for Canada or a 2024 income tax return for any foreign jurisdiction in her hearing materials. Based on the foregoing, I find that the NOA on its own provides no support for the applicant’s position that she was an employed person at the relevant time.

21In summary, based on a consideration of all evidence before me, the wording of s. 3(1) of the Schedule, and the Arab and Omoruyi decisions, I find that between May 20, 2024, and June 5, 2024, the applicant carried on the business of providing online writing services as a sole proprietor or self-employed person.

22Therefore, in my view, the evidence establishes that the applicant was self-employed for the purposes of entitlement to an IRB under s. 5(1) of the Schedule. I will now turn to the question of the applicant’s entitlement to an IRB.

The applicant’s IRB quantum is nil

23I find it unnecessary to address whether, under s. 5(1) of the Schedule, the applicant suffered a substantial inability to perform the essential tasks of her self-employment as a result of and within 104 weeks after the accident. This is because the applicant was self-employed and did not report any self-employment income for the 2023 tax year. Therefore, the quantum of her IRB is nil.

24A self-employed person who establishes entitlement to an IRB under s. 5(1) must have the quantum of their IRB calculated in accordance with s. 4(3) of the Schedule.

25Under s. 4(3), the quantum of an IRB for a self-employed person is based on the person’s income or loss from the business for the last completed taxation year, as determined in accordance with Part 1 of the Income Tax Act (Canada).

26In multiple Tribunal cases, including the Omoruyi case relied on by the applicant, the language of s. 4(3) has been found to be clear and unambiguous in establishing that the self-employment income from the last completed taxation year is used to calculate the IRB.

27The applicant testified at her examination under oath that she did not work in any capacity in 2023, the year before the accident. No 2023 income tax filing for the applicant from Canada or any other jurisdiction is before me.

28Accordingly, even if the applicant established entitlement to an IRB under s. 5(1), the IRB quantum is nil pursuant to s. 4(3). This is because the applicant was self-employed at the time of the accident, and she reported no self-employment income for 2023, being the last completed taxation year.

29Therefore, the applicant is not entitled to an IRB.

The respondent is not liable to pay an award

30The 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.

31The case law establishes that in determining whether an insurer’s conduct in withholding or denying a benefit warrants an award, an insurer’s behaviour must be seen as “excessive, imprudent, stubborn, inflexible, unyielding or immoderate.”

32In the applicant’s particulars included in her hearing materials, she submits that her claim for an award relates to the respondent’s denial of the IRB.

33As the applicant’s claim for an award relates to her IRB claim, and I find that no IRB is payable, I find no basis for an award.

Interest

34Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. As I find that there are no overdue benefits payable, and specifically, that no IRB payment is overdue, no interest is payable.

ORDER

35The applicant is not entitled to an IRB. The respondent is not liable to pay an award. As no benefits are owing, no interest is payable.