Volume. 6 Issue. 18 – May 19, 2022

This week we feature two IRB quantum cases. The first, ‘Post Accident Earnings Must be Declared – Only if You Ask?’, is a reconsideration of a decision we recently highlighted. The requirement to provide evidence of post accident earnings continues at issue. The conundrum of having two divergent decisions by the same Vice Chair on the same subject is difficult to reconcile with no definitive direction on the calculation and deduction of post accident income

The second case, ‘Entitled, Lost Revenue, Yet No IRB’, considers a scenario wherein the Applicant has established entitlement, however ultimately nothing was payable given the inability to calculate either pre-MVA earnings or post-MVA losses from self-employment.

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No IRB Payable as Unable to Calculate Post Accident Earnings

Post Accident Earnings Must be Declared – Only if You Ask? – Recently, we featured the reconsideration on Switzer v Waterloo wherein the Vice-Chair upheld an earlier decision awarding the Switzer in excess of $150K without any consideration for post accident income earned during the entitlement period. It was noted that this decision seemed to diverge from Giannoylis v Traveler (20-000280) by the same Vice-Chair, which has now been upheld on reconsideration, where IRB could not be calculated as the post accident income was not able to be calculated.

In the original Giannoylis v Travellers (20-000280) decision, the Tribunal had indicated that “because the respondent had requested additional information regarding the applicant’s post-accident income for 2019 and 2020 by way of an order by the Tribunal, and Giannoylis failed to provide sufficient particulars regarding this information, “I was unable to determine the amount of IRBs payable for February 20, 2019 onwards to January 11, 2021.” Upon reconsideration, the Tribunal found there to have been no error of fact or law regarding this finding. It was noted that “, the respondent took active steps in accordance with the Schedule to obtain further information that was in the control of the applicant to allow it to calculate any deductions from IRBs payable that the respondent is entitled to make under s. 7(3)(a).”

Reconciling these two disparate decisions, the Vice-Chair appears to stipulate that the fact of information being within the control of an Applicant is merely one part of the equation. Absent a specific request in accordance with the Schedule (s.33) from the Respondent for post-accident earning information, there appears to be no obligation on the part of an Applicant to provide post-accident earnings evidence. Time will tell what the Court has to say on this, with the case involving in excess of $150K IRB being appealed.

No IRB Payable Despite Agreed Upon Entitlement

Entitled, Lost Revenue, Yet No IRB – In 20-003837 v Aviva, Aviva agreed that Etuka-Ayorinde was entitled to IRB claimed October 27, 2017 to January 27, 2018. However, they contended that they lacked the requisite information to establish quantum. The Tribunal found that income tax returns provided confirmed a significant decrease in income from 2016 to 2017. However, with the accident occurring about three quarters of the way through 2017, there was no way to determine what was earned in the period prior to the accident. Further, the claim extends into 2018 and there was no information whatsoever provided for that taxation year.

The Tribunal noted that the Schedule entitled Etuka-Ayorinde to secure an accountant’s report for the purposes of calculating IRB, however he did not avail himself of this opportunity. Therefore, the Tribunal was “unable to award the payment of IRBs considering the lack of clarity on the Applicant’s pre-accident income and post-accident loss from self-employment.”

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