Volume. 4 Issue. 30 – August 5, 2020

“Employed” But No Employment Income = $0 IRB

In the two decisions that follow, the need to establish employment earnings as required under the Schedule, renders moot the need to establish whether an Applicant is in fact “entitled” to IRB. One case there was no employment income, the second where confirmed income did not satisfy the requirements under the Schedule.

Employed – Yes and No – While “employed” is not specifically defined in the Schedule, the Tribunal in 18-010477 v Aviva, found that the term is used in two senses, one of “being in an employment relationship”, the second requiring “a need to be remunerated as remuneration is the basis for calculating entitlement.” The Applicant, on an unpaid leave for approximately nine months on the date of loss, satisfied the first criterion of “being in an employment relationship”, however failed on the second where he received no remuneration. As “there was no employment income with which to calculate entitlement to IRB, [the Applicant] was paid IRBs in error.

The Tribunal noted that the Schedule was “silent on what constitutes a person being employed, thereby leaving the meaning open to interpretation.” Referencing the Applicant’s status at the time of the accident, the Tribunal found that the Schedule does not require the Applicant to be “working” in 26 of the previous 52 weeks, rather required that they be “employed”. However, “a part of being employed, pursuant to the requirements under s. 7, is receiving weekly employment income. This is where [the Applicant]’s claim falls short.” To find otherwise, would result in an “absurd result”, of being employed yet entitled to $0 IRB.

In contrast, as previously reported upon, the Tribunal in 18-000865 v Pembridge found that the Applicant had in fact been employed for 26 of 52 weeks despite having worked only 20 weeks in the prior year. Much of the consideration turned on the intention and expectations between the employer and employee, without consideration of the second factor in the above case regarding remuneration.

T4 Does Not Establish Earnings – The Applicant in 19-003381 v Aviva, was injured in a May 2016 accident and received IRB at the rate of $400 per week until February 2017. Seeking ongoing entitlement, the Applicant relied upon a 2016 T4 confirming $18,194 in income, which was further corroborated by a Record of Employment confirming employment from 2012 until the accident. The Applicant also suggested having earned over $52,000 in 2015, however there was no supporting tax evidence submitted.

Despite the evidence put forward by the Applicant, the Respondent countered with evidence from the Canada Revenue Agency indicating there to have been no tax filing for 2016. As a result, they argued, and the Tribunal agreed, that the true entitlement to IRB was nil. There was as a result no need for the Tribunal to consider whether the Applicant was entitled to further IRB, pre or post 104 weeks.

Life Altering Event Required for NEB?

The threshold test of ‘complete inability’ for Non-Earner Benefit remains extremely difficult to establish. In the past year, the Applicant has been successful in establishing entitlement in 9% of the 45 cases.

50% ADL Reduction Not Complete Inability – In 18-011347 v Aviva, the Applicant was deemed entitled to NEB for the period commencing 26 weeks after the accident (April 2016) as the Respondent’s initial denial of the claim was both late and non-compliant with the requirements of s.36(4)(b). Following an IE, the Respondent subsequently delivered a compliant denial notice in November 2016, therefore the Tribunal considered whether the Applicant in fact met the test for NEB. Ultimately, the Tribunal found that the Applicant had advanced no reliable evidence to show an inability to engage in his normal activities.

During a psychological assessment, asked to estimate his percentage engagement level, he “generated an estimate of approximately 50%, ‘with pain’.” The Tribunal found “the fact that [the Applicant] rates his own post-accident abilities at 50% is telling.” Assessors for both the Respondent as well as the Applicant confirmed that the Applicant “continued to engage in most of his pre-accident activities, albeit at a reduced level, even as low as 50%.” As a result, “evidence indicates that [the Applicant] was not continuously prevented from substantially engaging.”

Life Altering Event – In 19-004809 v Aviva, the Applicant contended that reduced function in the use of his dominant hand meets the test of complete inability. The Tribunal agreed that the Applicant had to adjust to using his left hand more than his right, with the result being a reduced level of participation in almost all of the same pre-accident activities. However, the Applicant “failed to show that the left-hand use was a life-altering result of the accident.” One example being “no evidence that [the Applicant] has had to learn to write again”. Finding that the Applicant was not entitled to NEB, it was noted that “the test for complete inability is a lack of ability to continuously participate in substantially all pre-accident activities. [The Applicant]’s evidence supports the complete opposite.”

Related LAT inFORMER issues or other publications:

Are You Employed, Self-employed or “Deemed” Employed?
Surveillance Determinative Despite Inherent Limitations

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