Insurance Claim
& Litigation Updates
Updates
Keep in touch with the latest Insurance Claim & Litigation Updates including
our summaries on decisions and how they could impact your future claims.
The Impact of a Retroactive Lump Sum Payment on IRBs
The recent Licence Appeal Tribunal (LAT) decision, Botari v The Dominion of Canada General Insurance Company (22-001245/AABS) focused on the issue of retroactive payments. The ...
Working Sporadically on an On-Call Basis Does Not Meet the Definition of Employed
The recent Divisional Court decision, Nouracham v Aviva General Insurance Company (2024 ONSC 2415) found that the Appellant, Hamad Nouracham, was not employed at the ...
Personal Tax Returns Insufficient for Self-Employed IRB Claim
The recent Licence Appeal Tribunal (LAT) decision, Ahmad v Economical Mutual Insurance (21-014296/AABS) reiterates that personal tax returns may not be sufficient evidence of pre-accident ...
Tribunal Rules on 52 Week Calculation for Self-Employed Individuals
In the recent Licence Appeal Tribunal (LAT) decision, Aarooj v TD Insurance (21-014314/AABS), the tribunal clarified how to calculate pre-accident income for a self-employed individual ...
Tribunal Rules on Overpayment of IRBs
In the recent case of Angus v Aviva General Insurance (21-008080/AABS-R), the Licence Appeal Tribunal (LAT) provided clarity on overpayments of Income Replacement Benefits (IRBs) ...
Reconsideration Excludes CERB from Pre-Accident Income
In the recent Licence Appeal Tribunal (LAT) decision, Coto v Intact Insurance (21-006930/AABS - R), Adjudicator Grant accepted the applicant’s request for reconsideration. In the ...
CERB to be Included in Pre-Accident Income
In the recent Licence Appeal Tribunal (LAT) decision, Coto v Intact Insurance (21-006930/AABS), Adjudicator Grant found that the Canada Emergency Response Benefits (CERB) received prior ...
Income Replacement Benefits Payable for Owners of a Corporation
Quite often, our Insurance Claims & Loss Litigation team is requested to calculate income replacement benefits (IRBs) in circumstances where the claimant is an owner ...
Insurer Entitled to Repayment Beyond 12 Months Due to Wilful Misrepresentation of Post-Accident Employment Status
In the recent Licence Appeal Tribunal (LAT) decision, The Personal Insurance Company v Beason (21-006574/AABS), Adjudicator Norris found that The Personal was entitled to a ...
Is Rental Income Passive or Self-Employment in Nature?
The treatment of rental income/losses are often a grey area when quantifying income replacement benefits (IRB). Should it be excluded as passive income or included ...
Reconsideration Granted to Exclude References to “Entitlement”, “Up to Age 65” and “Post Age 65” in Relation to IRB
The recent Licence Appeal Tribunal (LAT) reconsideration decision, Schuknecht v Economical Insurance Company (19-013098/AABS), was granted as the Tribunal erred in awarding an income replacement ...
Entitlement to an IRB Disqualifies an Insured’s Entitlement to a NEB
The recent Licence Appeal Tribunal (LAT) decision, Ozor v Aviva Insurance Company (20-011733/AABS), states that per Section 12 of the Statutory Accident Benefits Schedule (SABS), ...
Insurers Cannot Reasonably Calculate IRBs Based on Late Tax Returns and Inconsistent Supporting Information
The recent Licence Appeal Tribunal (LAT) decision, Hibbert v Aviva General Insurance (20-009328/AABS), determined that the Respondent cannot be reasonably expected to calculate the Applicant’s ...
How to Approach Inconsistent Reporting of CCA Before and After an Accident for IRBs
In the recent Licence Appeal Tribunal decision, Eid v Allstate Insurance Company of Canada (20-001143/AABS), the Adjudicator determined that the quantum of the Applicant’s income ...
Post-Accident Self-Employment Considered Hobby Opposed to Business
In the recent Licence Appeal Tribunal decision, Lynch v Intact Insurance Company (20-014497/AABS), the parties argued over whether the Applicant’s comedy career would be considered ...
Post-Accident Self-Employment Losses Must be Incurred as a Result of the Accident
The recent Licence Appeal Tribunal decision, Mears (Griffiths) v TD General Insurance (20-012014/AABS), concludes that when self-employment losses are incurred before an accident, a claimant ...
Insurer Entitled to Deduct LTD Benefits Despite Claimant Failing to Apply
In the recent Licence Appeal Tribunal decision, McBeth v. Allstate Canada (20-007407/AABS), the adjudicator determined that the Respondent is entitled to deduct long-term disability (“LTD”) ...
All Post-Accident EI Benefits are Deductible from IRBs as Employment Income
Historically, there has been uncertainty regarding the treatment of post-accident Employment Insurance (“EI”) benefits due to a perceived inconsistency in the Statutory Accident Benefits Schedule ...
Why are Notices of Assessment Necessary to Quantify IRBs?
Claimants and legal representatives often ask us why we require Notices of Assessment (NOAs) when quantifying income replacement benefits (IRBs)? The answer to this question ...
Unnecessary for Counsel to Directly Instruct Accountant’s Interpretation of the SABS
The recent Denise Schuknecht and Economical Insurance Company (19-013098/AABS) decision comments on an Accountant deducting net collateral benefits from income replacement benefits (IRBs) as opposed ...
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 ...
Adjudicator Denies Additional Attendant Care Benefits Expenses
In the recent Licence Appeal Tribunal (“LAT”) decision of Joslin-Mielke v. Pembridge Insurance Company (19-012118/AABS), adjudicator Reilly concludes that the Applicant is not entitled to ...
Does Vacationing Impact Entitlement to Accident Benefits?
Are claimants entitled to accident benefits while on vacation? The recent Licence Appeal Tribunal (LAT) decision, Ullah v. Co-operators General Insurance Company (20-003923/AABS), addresses this ...
Tax Returns May Be Insufficient Evidence of Pre-Accident & Post-Accident Income/(Loss)
Are tax returns always sufficient evidence of pre-accident and post-accident income/(loss) for purposes of quantifying income replacement benefits (IRB)? Historically, it has been our approach ...
Piercing the Corporate Veil
In the recent Licence Appeal Tribunal decision, Guan Mei Huang and The Dominion of Canada General Insurance Company (File Number: 19-006264/AABS), the Adjudicator found that ...
Post-Accident Expenses Must be Reasonable, Necessary, Reduce Losses & Actually Be Paid
When quantifying income replacement benefits (“IRBs”), a common disagreement between claimants and insurers is how to treat potential post-accident expenses. A recent Licence Appeal Tribunal ...
Self-Employment Without Last Fiscal Year, Eligible for 52 Weeks Before the Accident?
Is a self-employed individual who had not completed a full fiscal year of operations prior to an accident eligible for a calculation of their pre-accident ...
Consistent Post-Accident Work Does Not Preclude Receipt of IRBs Beyond 104 Weeks
In the recent Licence Appeal Tribunal (“LAT”) reconsideration decision of B.L.J. v. The Co-Operators Insurance Company (18-012005/AABS), adjudicator Victor denies the Respondent’s request for reconsideration. ...
Reconsideration Provides Clarity on CERB/CRB
In the recent Licence Appeal Tribunal (“LAT”) reconsideration decision of Foster v. Aviva (19-014657/AABS), adjudicator Boyce granted the applicant’s request for reconsideration. In the initial ...
Post-Accident Losses Capped
In the recent Licence Appeal Tribunal (“LAT”) decision, Adjudicator Paluch ruled that the Applicant’s post-accident losses from self-employment were to cease effective December 31, 2019. ...
Wilful Misrepresentation Creates Overpayment of Income Replacement Benefits (IRBs)
In the recent Licence Appeal Tribunal decision, Ababio v. TD Insurance Meloche Monnex, 2021 (20-001415/AABS) Adjudicator Farlam concludes that the respondent is entitled to repayment ...
IRBs Denied Based on Delayed OCF Submissions & Unverified Post-Accident Bank Deposits
When does entitlement to income replacement benefits (IRBs) commence if there is a delay between submitting an Application for Accident Benefits (OCF-1) and a completed ...
Decision that EI Sickness Benefits are Not Deductible from IRBs Upheld after Appeal
The recent Licence Appeal Tribunal reconsideration decision, Tania Spence v. Aviva Insurance Company of Canada (19-013457/AABS) was dismissed as Adjudicator Boyce found no error of ...
Adjudicator Rules on Sufficient Documentation for IRB Calculation
In the recent Licence Appeal Tribunal (“LAT”) decision Parameswaralingam v. Echelon General Insurance Company (19-005907/AABS), Adjudicator Lake ruled that although the Applicant was entitled to ...
How do the CERB & CRB Impact the Calculation of IRBs?
How do the Canada Emergency Response Benefit (“CERB”) and Canada Recovery Benefit (“CRB”) impact the calculation of income replacement benefits (“IRBs”)? a) Are CERB and ...
Request for Repayment on Overpaid IRBs
In the recent Licence Appeal Tribunal decision, Murphy v. Wawanesa Mutual Insurance Company (19-006006/AABS), Adjudicator Boyce ruled that Wawanesa is entitled to the repayment of ...
EI Sickness Benefits are Not Deductible when Calculating IRBs
In the recent Licence Appeal Tribunal decision, Tania Spence and Aviva Insurance Company of Canada (19-013457/AABS), Adjudicator Boyce ruled that Employment Insurance (“EI”) sickness benefits ...
Adjudicator Allows Insurer to Recover Overpaid IRBs Beyond Section 52 Threshold
In the recent Licence Appeal Tribunal (“LAT”) decision, Aviva General Insurance Company and B.G. (20-000592/AABS), Adjudicator Lake ruled that willful misrepresentation warranted Aviva the ability ...
IRB Deductibility of EI Maternity Benefits Received & Employer Top-Up Benefits Available
Are Employment Insurance (“EI”) maternity benefits received and employer maternity top-up benefits available, however, not applied for, deductible when calculating an individual’s income replacement benefits ...
Value of Lodging and Meals for IRB Purposes
In the License Appeal Tribunal decision, B. L. J. and The Co-Operators Insurance Company (18-012005/AABS), the adjudicator was required to determine if meals and free ...
Pre-Accident Cash Income Should Be Verified As Opposed To Accepted At Face Value
Should pre-accident cash income that has not been evidenced with supporting documentation be considered at face value when calculating an individual’s income replacement benefits (IRBs)? ...
Adjudicator Accepts Revised Tax Return
In the License Appeal Tribunal (LAT) decision N.F. and Aviva Insurance Canada (18-007077/AABS), the adjudicator was faced with the decision of accepting an amended tax ...
LTD Settlement Not Deductible from IRB
Typically, when an individual is claiming an IRB and has LTD benefits available to them, our first thought is to deduct the LTD benefits received ...
Post-Accident Monies Claimed to be a Gift Considered as Income
If an individual receives post-accident monies from their non-arm’s length employer, which they claim to be a gift, would an insurer be able to deduct ...
Eligibility for Income Replacement Benefits not Based on CPP Disability Benefits Received Beyond 104 Weeks
One may assume that a claimant who commences receiving Canada Pension Plan (“CPP”) disability benefits after an accident would be eligible to receive income replacement ...
Are Insurers Obligated to Pay for Plaintiff Accounting Reports?
A growing trend has emerged recently as it relates to individuals making a claim for income replacement benefits (“IRBs”). More frequently than ever, insured’s seem ...
Self-Employed Individuals – Last 52 Weeks or Last Completed Taxation Year?
For self-employed individuals seeking to claim an income replacement benefit (“IRB”), the calculation of their pre-accident gross weekly income is not always straightforward. Two recent ...
LAT rules on Section 8(1) for IRB Purposes
In the LAT decision released on January 13, 2020, T.A.K. v Aviva General Insurance Company (18-008232/AABS), the Adjudicator provides interpretation for the Section 8(1) adjustment ...
Employed During a Period of Illness?
In the recent Licence Appeal Tribunal decision released on September 30, 2019, P.K. and Pembridge Insurance Company (Tribunal File Number: 18-000865/AABS), Adjudicator Reilly concludes that ...
Shareholder of a Business – Employed or Self-Employed?
In the recent Licence Appeal Tribunal decision released on October 8, 2019, A.P. and Economical Insurance (Tribunal File Number: 19-000026/AABS), the Adjudicator found that A.P. ...
Calculating Pre-Accident Income When Considering Self-Employment Losses
In the LAT reconsideration decision released on June 5, 2019, Aviva Insurance Canada v. W.D.W. (17-005894/AABS), it was determined that the Tribunal made an error ...
Considering “Big Picture” to Determine Dependency
In the recent decision released on December 21, 2018, between Pafco Insurance Company (Applicant) and Wawanesa Mutual Insurance Company and Western Assurance Company (Respondents), Arbitrator ...
Self-Employment Income Deducted Post-Accident – Yes or No?
In the recent Divisional Court decision released on December 7, 2018, Surani and Perth (File No.: 541/17), an application for judicial review was dismissed. The ...
The importance of knowing what to do with EI benefits for IRB purposes
In the LAT decision released July 18, 2018, C.M. and Aviva General Insurance (17-005910/AABS), the Applicant received a special award in the amount of 50% ...
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