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 time of the accident per Section 5(1) of the Statutory Accident Benefits Schedule (SABS). This finding is based on the fact that Nouracham had not worked 26 out of the 52 weeks before the accident.

Under Section 5(1)1(ii) of the SABS, if a claimant is unemployed at the time of the accident, they must have been employed for at least 26 out of the 52 weeks preceding the accident to qualify for income replacement benefits (IRBs). This rule ensures that IRBs are granted to individuals who have a substantial and continuous attachment to the workforce, even if they are not employed at the time of the accident.

The Appellant was involved in a motor vehicle accident in March 2018.  At the time of the accident, the Appellant was working on an on-call basis at a factory.  The Appellant had not worked for six weeks before the accident and had only worked nine weeks out of the prior 52, with each work week ranging from 11 to 26 hours.

Initially, Nouracham had received IRBs, however, these benefits were later terminated when it was determined the Appellant did not meet the eligibility criteria under the SABS. The Appellant appealed, arguing that her on-call employment should count towards meeting the 26-week requirement.

The Licence Appeal Tribunal (LAT), supported by the Superior Court, found that the Appellant did not meet this requirement.

The Tribunal applied legal interpretation from Kawa Arab v Unica Insurance (2022 ONSC 5761), which defined “employed” as involving a regular exchange of wages for services over a defined period. The Tribunal concluded that the Appellant’s sporadic work did not satisfy this definition.

This case outlines the importance of the 26 out of 52-week employment rule in IRB eligibility, especially for those who are unemployed at the time of the accident. To qualify, claimants must demonstrate a consistent and substantial work history over the preceding year. Sporadic or irregular employment, such as on-call work, may not meet the SABS criteria.

Read the decision in full detail here: Nouracham v Aviva General Insurance Company (2024 ONSC 2415)