Licence Appeal Tribunal File Number: 24-008597/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:
Blerim Abazi
Applicant
and
Unifund Assurance Company
Respondent
DECISION
ADJUDICATOR: Nadia Mauro
APPEARANCES:
For the Applicant: Matthew Dale, Counsel
For the Respondent: Paige Schubert, Counsel
HEARD: By way of written submissions
OVERVIEW
1Blerim Abazi, the applicant, was involved in an automobile accident on October 16, 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, Unifund Assurance 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 $400.00 per week from October 23, 2020, to date and ongoing?
ii. Is the applicant entitled to interest on any overdue payment of benefits?
RESULT
3The applicant is not entitled to IRBs or interest.
ANALYSIS
4I find that the applicant has not demonstrated, on a balance of probabilities, that he is entitlement to IRBs.
5To 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.
6The applicant submits that he was actively employed with Mazda until March 20, 2020, when he was laid off due to the COVID-19 pandemic. The applicant submits that on the date of the accident, he was still laid off. The applicant argues that he is entitled to IRBs because he was employed at the time of the accident, and as a result of and within 104 weeks post-accident, he suffered a substantial inability to perform the essential tasks of his prior employment.
7The respondent submits that the applicant was not employed at the time of the accident pursuant to s. 5(1)(i), relying on the Divisional Court decision in Arab v. Unica, 2022 ONSC 5761 (“Arab”). The respondent further submits that the applicant has not met his onus to demonstrate a substantial inability to complete the essential tasks of his pre-accident employment.
The applicant was not employed at the time of the accident
8I find that the applicant was not “employed” prior to the accident pursuant to s. 5(1)(i) of the Schedule.
9The applicant submits that he was formally terminated by Mazda on February 28, 2022, and therefore had a valid employment contract at the time of the subject accident on October 16, 2020. The applicant relies on the Tribunal decision in Lol v. Dominion of Canada General Insurance Company, 2024 CanLII 6507 (“Lol”), where it was held that the applicant was entitled to IRBs based on his employment at the time of the accident, despite not meeting the 26-week requirement.
10I am not persuaded by this argument for two reasons. First, the Divisional Court in Arab, which is binding on me, held that temporary and/or prolonged absence from employment would have been included in this current legislation, had the legislature intended for IRBs to be paid during those periods. The Division Court further held at paragraph 34:
“…When read in its entirety, Part II of the Schedule intended income earners and non-income earners to be treated differently. It also intended some minimum requirements. The legislature expressly removed the reference to temporary lay-offs. While I appreciate the Appellant’s argument that the Schedule is about consumer protection and the interpretation of “employed” should be interpreted broadly, interpreting the term to capture anyone in an employment relationship independent of their income-earning situation does not accord with the overall parameters of the Schedule.”
11The applicant’s Record of Employment confirms that he was laid off as of March 20, 2020. I agree with the applicant, that there was an employment relationship with Mazda that formally ended by way of letter of termination on February 28, 2022. However, Arab makes it clear that this is not enough to satisfy the overall parameters of the Schedule. There must have been an income-earning situation. As the applicant was laid off at the time of the accident and did not meet the 26-week minimum requirement, he was not employed as intended by s. 5(1)(i) of the Schedule, and therefore not entitled to IRBs.
12Second, I differentiate Lol from the present case because although the applicant in Lol was on parental leave from his employment at Dominos Pizza and had not returned prior to the accident, he was working as a machine operator during the period of time in question, despite incorrectly indicating this on his OCF-1. That is not the case in the present matter. The applicant has not pointed me to evidence of any other employment relationship during the 52-week period prior to the accident that would satisfy the 26-week minimum requirement.
13Alternatively, the applicant submits that he is entitled to IRBs despite narrowly missing the 26-week threshold under s. 5(1)(i) due to the COVID-19 pandemic. The applicant submits that there was a mutual intention between the applicant and his employer to continue the employment relationship which should override the 26-week requirement.
14In this respect, I agree with the respondent, and find that intention to return to work cannot override the statutory requirement of the 26-week employment threshold as prescribed by the Schedule. Arab interprets the definition of “employed” as being “connected to income-earning and receiving wages in exchange for services being rendered.” The Court further clarified at paragraph 29:
“Although the legislation does not define the term “employed”, when the term is read in its ordinary grammatical sense and considered within the context of Part II of the Schedule it is clear and unambiguous that section 5(1) is not just about the existence of a formal employment relationship. Its purpose is to determine the eligibility to income replacement benefits with reference to the exchange of wages, salary, or other remuneration for services, over a defined period.”
15While I have accepted that the applicant had some sort of employment relationship with Mazda at the time of his accident, intent to work does not satisfy the definition of “employed”. Extenuating factors, such as the pandemic, do not mean that the prescribed requirements in the Schedule do not apply, although I acknowledge that the applicant’s individual circumstances must be taken into account when considering the context of the specific application. After considering the circumstances of this case, I find that the legislation is clear. To be employed, the applicant must have been receiving wages in exchange for services provided during the period in question. Intent does not satisfy this principle. The evidence shows the applicant was “employed” for 22 weeks, falling short of the required minimum 26-weeks. On this point, I find that the applicant was not “employed” pursuant to s. 5(1)(i) of the Schedule.
The applicant has not suffered a substantial inability to perform the essential tasks of his employment
16Even if I have erred in my finding with respect to s. 5(1)(i) of the Schedule, the applicant has not demonstrated, on a balance of probabilities, that he is substantially unable to perform the essential tasks of his pre-accident employment.
17The applicant bears the onus of proving, on a balance of probabilities, that they meet the aforementioned test under s. 5(1) of the Schedule to be eligible for IRBs. 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.
18The applicant has not provided the employer’s confirmation form (“OCF-2”), and as such, I am unable to identify what the essential tasks of his pre-accident employment were, or how he is unable to complete them due to accident-related impairments. The applicant also did not make any submissions with respect to the essential tasks of his pre-accident employment.
19I am also not persuaded by the applicant’s reliance on the clinical notes and records of the London Spine Centre because, in my view, complaints of pain alone are not sufficient to satisfy the test for IRBs. While I acknowledge that the CNRs note the applicant to have chronic diffuse spine pain and that he self-reported an inability to work, the CNRs do not evidence a medical opinion from the applicant’s treating practitioners that would speak to an inability to engage in the essential tasks of his employment.
20Taken together, on a balance of probabilities, I find the evidence does not establish the applicant’s entitlement for an IRB.
Interest
21As there are no overdue benefits, the applicant is not entitled to interest pursuant to s. 51 of the Schedule.
ORDER
22I find that:
i. The applicant is not entitled to an IRB;
ii. The applicant is not entitled to interest pursuant to s. 51 of the Schedule; and
iii. The application is dismissed.
Released: January 22, 2026
Nadia Mauro
Adjudicator