Citation: Kazadi Numni-A-Nenge v. Certas Home and Auto Insurance Company, 2026 ONLAT 24-014917/AABS

Licence Appeal Tribunal File Number: 24-014917/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:

Christian Kazadi Numni-A-Nenge

Applicant

and

Certas Home and Auto Insurance Company

Respondent

DECISION

ADJUDICATOR:

Rachel Levitsky

APPEARANCES:

For the Applicant:

Jono Schneider, Counsel

For the Respondent:

Rebekah Hovi, Counsel

HEARD:

By way of written submissions

OVERVIEW

1Christian Kazadi Numni-A-Nenge, the applicant, was involved in an automobile accident on April 22, 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, Certas Home and Auto 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 (“IRB”) in the amount of $371.28 per week, less $337.82 already paid by the respondent?

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?

3I note that the Case Conference Report and Order dated March 7, 2025, identified issue (i) as being whether the applicant is entitled to $37.43 ($371.82 less $333.85 paid) per week from April 29, 2024, to date and ongoing. However, the parties have confirmed that there is no dispute as to the applicant’s entitlement to the benefit; the dispute relates to the quantum of the weekly benefit. Further, the parties have clarified that the respondent is paying $337.82 in weekly IRBs. I have accordingly revised the issue above to reflect the scope of the dispute before me.

RESULT

4The applicant is not entitled to an income replacement benefit above what has already been paid.

5No further interest is payable.

6The applicant is entitled to an award of 10% of the amount paid by the respondent for IRBs owing on March 12, 2025, plus interest in accordance with Reg. 664.

ANALYSIS

Quantum of IRBs

7The parties agree that the applicant was both employed and self-employed at the time of the accident. According to the OCF-1, he was self-employed as a personal trainer since 2019, and he was employed as a cook since January 2024. The respondent is paying $337.82 in weekly IRBs based on a combination of the applicant’s employment and self-employment income earned in the 52 weeks prior to the accident. The applicant submits that he should receive $371.28 per week, which is based on just his employment income in the four weeks prior to the accident.

8Section 4(2) of the Schedule sets out the method for calculating gross annual employment income:

1. In the case of a person referred to in subparagraph 1 i of subsection 5 (1) 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:

i. The person’s gross employment income for the four weeks before the accident, multiplied by 13.

ii. The person’s gross employment income for the 52 weeks before the accident.

2. Subject to paragraph 3, the person’s gross annual employment income is his or her gross employment income for the 52 weeks before the accident if,

i. the person qualifies for a benefit under subparagraph 1 i of subsection 5 (1) and was a self-employed person at any time during the four weeks before the accident, or

ii. the person qualifies for a benefit under subparagraph 1 ii of subsection 5 (1).

3. If the person described in subparagraph 2 i 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.

9The applicant argues that he is permitted to choose between the calculations for being employed versus being self-employed, and thus the calculation should be based on his income during the four weeks before the accident. The respondent disagrees, and argues that as a self-employed person, the applicant is not able to utilize this calculation. I note that, despite being permitted to file reply submissions, the applicant chose not to do so.

10I agree with the respondent. The calculation under s. 4(2)1 is only available to someone “who was not a self-employed person at any time during the four weeks before the accident”. The applicant admits that he was self-employed since 2019, and does not indicate that this work stopped at any time prior to the four weeks before the accident. As such, I find that the applicant’s gross annual employment income cannot be calculated based on his income from the four weeks before the accident, as self-employed individuals are specifically excluded from the calculation set out in s. 4(2)1.

11The applicant relies on V.H. v. Aviva Insurance Company of Canada, 2019 CanLII 130385, and states that he is permitted to receive the higher of the calculations between being self-employed and employed. He also submits that this case was relied on in the following cases without reservation: K.D. v. Aviva Insurance Company, 2020 CanLII 27383, Eid v. Allstate Insurance Company of Canada, 2022 CanLII 87729, and Arooj v. TD General Insurance Company, 2024 CanLII 10502.

12These cases do not address whether gross annual employment income can be calculated based on the income from the four weeks prior to the accident (s. 4(2)1). They instead refer to whether IRBs should be calculated based on the 52 weeks before an accident (s. 4(2)2), the last fiscal year (s. 4(2)3), or the last completed taxation year (s. 4(3)). The applicant is requesting IRBs based on the calculation set out in s. 4(2)1, which expressly excludes self-employed individuals, and thus these cases do not assist him.

13The applicant also relies on A.M. v. The Dominion of Canada General Insurance Company, 2019 CanLII 58194 [“A.M.”]. The applicant submits that A.M. is analogous to the case before me, because the applicant in A.M. was both employed and self-employed, and was permitted to base his calculation on his gross employment income for four weeks prior to the accident pursuant to s. 4(2)1. However, the Tribunal determined that the applicant was not a self-employed person at any time for the four weeks prior to the accident, and therefore the calculation in s. 4(2)1 was available to them.

14Given that the applicant was both self-employed and employed at the time of the accident, his IRBs cannot be calculated based his gross employment income for the four weeks prior to the accident. I accordingly find that the applicant has not met his burden to prove, on a balance of probabilities, that he is entitled to an IRB in the amount of $371.28 per week.

Interest

15Interest applies on the payment of any overdue benefits pursuant to s. 51 of the Schedule. The applicant submits that the respondent made its first IRB payment on March 12, 2025. He argues that, despite the payment being overdue, no interest payments were made.

16The respondent submits that interest on the prior IRB payments was forwarded to the applicant on August 5, 2025, and that there is no interest owing to the applicant. The correspondence from the respondent dated August 6, 2025, indicates that 1% compound interest was paid for the time period of November 10, 2024, to August 5, 2025, in the total amount of $411.40. As indicated above, the applicant did not file reply submissions to clarify this matter, and has not made submissions indicating whether any further interest is owing. As such, I find that the applicant has not proven, on a balance of probabilities, that he is entitled to further interest on the IRBs paid.

17Additionally, as I have found that the applicant is not entitled to any additional amount for weekly IRBs, no benefit is overdue and further interest is accordingly not payable.

Award

18The 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. A special award is only given where the delay or withholding of benefits by the insurer is unreasonable, meaning behaviour which is excessive, imprudent, stubborn, inflexible, unyielding or immoderate. The applicant has the onus to demonstrate entitlement to an award on a balance of probabilities.

19The applicant submits that the respondent did not pay the benefit in its entirety until March 12, 2025. He noted that he provided an accounting report to a previous insurer on September 19, 2024, which included supporting documentation. After the respondent accepted priority of the applicant’s claim on October 24, 2024, the applicant followed up with the respondent on November 11, November 27, December 2, and December 27, 2024, and he submits that the only response he received was an email on December 2, 2024, stating that the matter was being reviewed. The applicant submits that the respondent was unable to articulate why the benefit was not being paid.

20The applicant argues that the respondent’s refusal to pay the benefit in its entirety until March 12, 2025, was unreasonable. He submits that no interim benefit was paid, and that s. 52 allows the respondent the right to seek an overpayment if a payment was made incorrectly. He notes that the agreement to pay the benefit only came during the case conference, and that leaving a disabled person without disability payments for six months is egregious.

21The respondent submits that, prior to it accepting priority, the previous insurer had sent requests for financial documents to the applicant in letters dated June 13, July 18, and September 23, 2024. It submits that it received the applicant’s accounting report on October 31, 2024, and provided a letter on December 18, 2024, requesting further medical and financial documents to assess the claim, including the records requested by the previous insurer. The respondent followed up on January 9 and February 21, 2025. The respondent submits that it only received enough information, including the applicant’s return to work status, to quantify the correct IRBs owing at the time of the case conference on March 3, 2025.

22The respondent received financial documentation along with the applicant’s accounting report. The documentation appended to the report includes a T1 General Income Tax Return for 2023, a T2125 Statement of Business or Personal Activities for 2023, a list of all slips for 2023, a Notice of Assessment for 2023, paystubs from March 23, 2024, to May 3, 2024, and personal bank statements from April 25, 2024, to July 25, 2024. The respondent has not explained why it was not possible to calculate the benefit based on this documentation.

23Further, it is unclear to me why the respondent waited until the case conference to ascertain the applicant’s return to work status. None of the letters provided by the respondent indicate that it required an answer to this question in order to calculate the benefit. If this was information required to calculate the benefit, the respondent had an obligation to request it rather than avoid the calculation altogether. I also note that the respondent has not provided copies of the previous insurer’s letters, and the respondent’s subsequent correspondence to the applicant simply referred to “financial documents as requested in our letters June 13/24, Jul 18/24, Sept. 23/24.” Otherwise, the respondent has not articulated what additional information it obtained at the time of the case conference that finally allowed it to calculate the benefit. I accordingly do not find this explanation persuasive.

24I acknowledge the respondent’s position that, after it paid the benefit, it requested additional documentation numerous times, and that certain documents have still never been provided by the applicant. However, this still does explain why the respondent could not calculate the benefit prior to March 12, 2025.

25The threshold for an award is high. However, I find that the respondent’s delay in calculating the benefit, in the absence of a compelling explanation, was unreasonable such that an award is justified.

26In determining the quantum of a special award, the Tribunal has found that the following factors may be considered: (i) the blameworthiness of the respondent’s conduct; (ii) the vulnerability of the applicant; (iii) the harm or potential harm directed at the applicant; (iv) the need for deterrence; (v) the advantage wrongfully gained by the insurer from the misconduct; (vi) should take into account any other penalties or sanctions that have been or likely will be imposed on the insurer due to its misconduct; and (vii) the overall length of the delay (Applicant v. Portage La Prairie Mutual Insurance Company, 2019 CanLII 101649).

27In this case, the respondent’s actions left the applicant without IRB payments for several months. This type of behaviour should be deterred. However, the applicant has led no evidence regarding his vulnerability or any harm he suffered as a result. I also find that, although there was an unreasonable delay, the delay was not considerably lengthy such that the maximum award amount is justified. I find that an award of 10 per cent of the amount paid by the respondent for IRBs owing on March 12, 2025, is appropriate in the circumstances, plus interest pursuant to Reg. 664.

ORDER

28The applicant is not entitled to an income replacement benefit above what has already been paid.

29No further interest is payable.

30The applicant is entitled to an award of 10% of the amount paid by the respondent for IRBs owing on March 12, 2025, plus interest in accordance with Reg. 664.