How to Calculate 26 Weeks Worked During the 52 Weeks Before the Accident

Is an individual who was unemployed at the time of the accident but had a history of working for various employers during the 52 weeks before the accident, eligible to receive income replacement benefits (IRBs)?

Section 5(1)1(ii)A of the Statutory Accident Benefits Schedule (SABS) outlines that an unemployed individual who was not receiving Employment Insurance Benefits at the date of loss, needs to have been employed for at least 26 weeks during the 52 weeks before the accident in order to be entitled to receive IRBs. This raises the question of how to calculate the number of weeks of employment during the 52 weeks before the accident.

The recent Raman Devi and Allstate Canada (20-011690/AABS) preliminary issue decision specifically comments on how to approach the above situation.

In this decision, the Applicant was involved in an accident on July 2, 2019. At the time of the accident, the Applicant was unemployed and not collecting Employment Insurance. However, during the 52 weeks prior to the accident the Applicant worked for six employers from July 3, 2018 to July 1, 2019.

Both parties agree that the Applicant worked for 180 days (i.e., 25.71 weeks) during the 52 weeks before the accident. The Applicant claims that she was employed for 26 work weeks during the applicable period and relies on the Tribunal Reconsideration Decision in T.S. v. Aviva General Insurance Canada. Furthermore, the Applicant submits “That even if she was employed for only 25.71 weeks, this ought to be rounded up to 26 weeks to align with the consumer protection nature of the Schedule.” However, the Respondent submits “There is no “rounding up” provision within the Schedule, as proposed by the Applicant. Even on a liberal interpretation of s. 5(1)1(ii)A, the Applicant has not worked 26 weeks in order to qualify for income replacement benefits.”

In regard to whether the applicant’s 25.71 weeks of employment should be “rounded up”, the Adjudicator states “… it is simply a case of straight addition. The Applicant was employed 180 of 364 days, or 25.71 weeks. In order to reach the 26-week threshold, she would have had to be employed for 182 days.” The Adjudicator further stated “The Schedule shall be interpreted as consumer protection legislation, but I cannot impute statutory wording that does not exist. There is no provision of the Schedule that permits me to round up the weeks from 25.71 to 26 weeks. Similarly, I am not persuaded by the Applicant’s argument that I should be considering work weeks.”

Given the above, an individual employed for less than 26 weeks (i.e., 182 days) of the 52 weeks prior to the accident, who was unemployed at the time of the accident and not receiving Employment Insurance Benefits, is not eligible for income replacement benefits.

Read the decision in full detail here: Raman Devi and Allstate Canada (20-011690/AABS)