Court File and Parties

CITATION: Nouracham v. Aviva General Insurance Company, 2024 ONSC 2415

DIVISIONAL COURT FILE NO.: 366/23

DATE: 20240430

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: HAMAD NOURACHAM, Appellant

AND:

AVIVA GENERAL INSURANCE COMPANY, THE LICENCE APPEAL TRIBUNAL AND THE ATTORNEY GENERAL OF ONTARIO, Respondents

BEFORE: Matheson, Sutherland and O’Brien JJ.

COUNSEL: Samia M. Alam, for the Appellant

Leanne Sabudsky, for the Respondent Aviva General Insurance Company

Douglas Lee, for the Respondent Licence Appeal Tribunal

HEARD: April 16, 2024 in Toronto (by videoconference)

Endorsement

[1] This is an appeal from the reconsideration decision of the Licence Appeal Tribunal dated May 11, 2023 and the related decision of the Licence Appeal Tribunal dated February 3, 2023, denying the appellant income replacement benefits (IRBs) under the Statutory Accident Benefits Schedule (SABS).

[2] The Tribunal denied the benefits because of this Court’s decision in Kawa Arab v. Unica Insurance, 2022 ONSC 5761 (Arab). The Tribunal found that the appellant was not an employee under s. 5(1)1(i) of the SABS and was therefore not eligible for IRBs as an employee. The appellant was not entitled to IRBs as a person who was not employed under s. 5(1)1(ii) of the SABS because she had not been employed for at least 26 of the 52 weeks prior to the accident.

[3] The week before the hearing of this appeal, the appellant sought an adjournment. The appellant wanted to bring a late application for judicial review because of the recent decision in Yatar v. TD Insurance Meloche Monnex, 2024 SCC 8. A lengthy extension of time would be needed to bring an application for judicial review from the above Tribunal decisions. The adjournment request was contested.

[4] In response to the adjournment request, the appellant was required to deliver a notice of application and motion showing the grounds for the proposed judicial review and for the necessary extension of time. The adjournment request was then argued at the outset of the appeal. It was taken under reserve.

[5] The adjournment is denied. We are satisfied with the explanation for the delay, given the timing of Yatar and the hearing of this appeal. However, as set out in s. 5(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, to get an extension of time the appellant would also have to show that there are apparent grounds for relief and no substantial prejudice or hardship. The respondent insurer submits there is prejudice, however, we do not rely on it. In this case we are not persuaded to exercise our discretion to grant the adjournment because of the grounds for relief in the proposed application for judicial review. We are not persuaded that those grounds would lead to relief that is not already addressed by the issues in the appeal.

[6] Moving to the appeal, the essential facts are not disputed. The appellant was in a motor vehicle accident in March 2018. She was initially given IRBs but the insurer concluded that was an error. The insurer did not seek repayment but did terminate the benefits as of January 2019.

[7] At the time of the accident, the appellant was working on an on-call basis through an agency called Blitz Personnel. When called, she worked at a factory for a period of one day or several days at most. She had not worked for six weeks at the time of the accident. She had not worked for at least 26 of the prior 52 weeks. She had worked nine of the prior seventeen weeks, for between 11 and 26 hours in each of those weeks.

[8] When the IRBs were terminated, the appellant applied to the Tribunal to get them restored. The Adjudicator found that the appellant did not meet the eligibility criteria in s. 5(1)1(i) because she was not “employed” at the time of the accident. The Adjudicator considered this Court’s decision in Arab and followed the Court’s interpretation of the word “employed” in s. 5(1)1(i) of the SABS.

[9] This appeal proceeds under s. 11(1) of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G. There is a right of appeal on questions of law, which include issues of procedural fairness. The standard of review is correctness.

[10] The appellant’s main issue is whether the Adjudicator erred in law by applying Arab to this case, rather than distinguishing it. There was no error of law. In Arab, the Court engaged in the statutory interpretation of the term “employed” in s. 5 (1) of the SABS and determined its meaning. That interpretation also applies here.

[11] The Court in Arab then applied the interpretation to the facts of that case. In Arab, the appellant had been absent from work for more than six months prior to the accident but his employment was not formally terminated until several months after the accident. Further, he had refused to return to work before the accident. The Court held that he was not “employed” for the purposes of s. 5(1)1(i) of the SABS.

[12] Here, the Adjudicator applied the statutory interpretation of “employed” that had been determined by the Court in Arab. At para. 29 of Arab, the Court summarized its interpretation of “employed” as follows:

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. [Emphasis added.]

[13] The legal issue that arises from Arab is what the Court meant by “a defined period”. The Adjudicator quoted the above and concluded that the accident did not occur during a period when the appellant was receiving renumeration for services.

[14] The Adjudicator found that the accident did not occur during the short time periods that the appellant ordinarily worked on call, specifically a period of one or several days at most. The Adjudicator commented that the outcome would be the same if the appellant had been offered work on a weekly or monthly basis. The Adjudicator noted that the appellant had not worked for six weeks prior to the accident. Since the appellant had also not worked 26 of the past 52 weeks, as required for IRBs as an unemployed person, she was not entitled to IRBs.

[15] On the reconsideration, the appellant submitted that the “defined period” referred to in Arab should be interpreted to mean the entire period that the appellant was on call at the agency, whether or not she was actually called to work. In other words, even if the appellant was not called to work for a year or more, it was enough that she had signed up for on-call work at the agency and was willing to work. The Adjudicator disagreed and cited Arab, at para. 33, where the Court held as follows: “Had the Legislature intended for income replacement benefits to be paid during temporary and/or prolonged absences from employment, it could have included that in the legislation, but it did not.”

[16] Other potential scenarios regarding the interpretation of “defined period” were raised in the argument of the appeal. For example, the respondent made it clear that it was not suggesting that a person had to be at work on the day of the accident. Nor would it be disqualifying if the person was on vacation or it was a weekend, for examples. There are likely cases with scenarios that will require further interpretation of Arab and the meaning of “defined period.” That interpretation should be addressed in the context of specific cases, as they may arise.

[17] As set out in the Tribunal decisions in this case, the Adjudicator concluded that in the context of an on-call relationship that gave rise to a period of work that was normally one day or several days at most, the absence of any renumeration for services for a six-week period did not meet the definition of “employed” under s. 5(1)1(i). The Adjudicator did not err in law in reaching this conclusion and the underlying facts are not in dispute.

[18] The appellant also submitted that the Adjudicator erred in failing to consider whether she met the legal disability test in s. 6 of the SABS. However, this required that the appellant be employed or self-employed, and therefore does not arise given the finding under s. 5.

[19] The appellant further submitted that the Adjudicator erred in law by ignoring relevant evidence that he was required to consider. The appellant relies on a motion to admit additional evidence that was tendered after the close of the Tribunal hearing. That evidence was pay stubs showing that the appellant had done some work in the period following the accident. The Adjudicator did not permit the additional evidence because it had not been disclosed in accordance with the Tribunal rules and orders, and to admit the documents would be unfair. We do not find that this amounts to an error.

[20] The appeal is therefore dismissed with costs to the insurer in the agreed upon amount of $1,000, all inclusive.

Matheson J.

Sutherland J.

O’Brien J.

Date: April 30, 2024