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Insurance (Auto) - Income Replacement Benefits (IRBs) (2). Traders General Insurance Company v. Rumball
In Traders General Insurance Company v. Rumball (Ont CA, 2025) the Ontario Court of Appeal dismissed an insured's appeal, this from a LAT determination that they were "entitled to IRBs from May 30, 2015 to December 28, 2016" but "was not entitled to benefits after the 104-week mark because she did not suffer a complete inability to engage in employment for which she is reasonably suited by education, training or experience."
The appellant was granted leave to appeal on "the question of the proper interpretation of the test to be applied under s. 6 of the Schedule [SS: 'Income Replacement Benefits - Period of benefit'] for benefits beyond the 104-week period":[2] Pursuant to s. 6(2)(b) of the Statutory Accident Benefits Schedule, O. Reg. 34/10 (the “Schedule”), income replacement benefits (“IRBs”) are payable to an insured person after the first 104 weeks of disability if, as a result of the accident, “the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is a more stringent test than applies during the first 104 weeks, which requires the insured person to suffer “a substantial inability to perform the essential tasks of [their pre-accident] employment”: Schedule, s. 5(1)1.
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(1) Legal Principles:
[25] The issue before this court is a narrow one, the correct interpretation of the test as set out in s. 6(2)(b) of the Schedule for entitlement to IRBs beyond the 104-week period. There is no dispute that the standard of review is correctness: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, at para. 37.
[26] Section 6(2)(b) of the Schedule provides the following:The insurer is not required to pay an income replacement benefit … after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. [Emphasis added.] [27] Before the Divisional Court and this court, much of the argument focussed on whether the test under s. 6(2)(b) requires reasonably suited employment to be employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. As I explain below, I conclude that s. 6(2)(b) establishes an evidence-based test that, by its clear and unambiguous language, requires an insured person to suffer a complete inability to engage in employment for which they are “reasonably suited by education, training or experience”. In making that assessment, a decision maker must consider all relevant factors, including the competitive, real-world setting and a job’s nature, status and reward. These factors, however, are not stand-alone components of the test, which remains an evidence-driven analysis to determine whether, based on the totality of the evidence, the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.
[28] In support of their respective positions, counsel for Rumball and Traders both cited this court’s decision in Burtch.[2] I agree with the parties that Burtch provides helpful insight into the correct test under s. 6(2)(b). I do not, however, accept Rumball’s submission that Burtch somehow changed the statutory test and imported the requirements that the proposed employment be in a competitive, real-world setting and commensurate in terms of nature, status and reward to the prior employment. Nor do I accept Traders’ submission that these factors need not be considered when the decision maker is conducting the analysis of the post-104-week test.
[29] In Burtch, this court granted an appeal from a trial judge’s decision holding that an insured was entitled to post-104-week IRBs, concluding the trial judge applied the wrong test in determining the insured was completely unable to engage in any employment for which he was reasonably suited by education, training or experience. At the time of the accident, the insured was employed as a general labourer. The trial judge found that the job of long-haul trucking was one for which he was reasonably suited by education, training or experience. However, the insured was not qualified to drive such trucks at the time of trial, and the trial judge concluded that since he was not qualified, he met the test for post-104-week IRBs.
[30] This court determined that the trial judge erred by applying the wrong test: at para. 23. Juriansz J.A. confirmed that a job for which the insured was not formally qualified may be a suitable alternative job under the test: at para. 24. The issues of availability of jobs, remuneration and qualification were the subject of evidence at trial: at para. 25. Further, Juriansz J.A. noted, at para. 25: “Most importantly, the medical and vocational evidence indicated that the [insured] could perform the duties of the job.”
[31] In Burtch, this court held that in considering whether an insured meets the test for post-104-week IRBs, a decision maker will necessarily consider all relevant factors, including if suitable alternative jobs are actually available, whether such jobs pay similar remuneration as the insured’s prior employment and are of a similar status, and whether to secure the job substantial upgrading or retraining is necessary. These factors are necessary and relevant to the analysis, but they are not stand-alone parts of the test. They are considerations, not requirements.
[32] Importantly, Burtch clarifies that it is not mandatory that all of these factors be met for an alternative job to be deemed suitable under the test. In Burtch, long-haul trucking was identified as a suitable alternative for the insured, even though he was not qualified to do the job, and he would have to take some further education. Though not available to him at the time, this court confirmed that availability was not necessary in order for it to be a suitable alternative.
[33] I thus do not accept Rumball’s submission that Burtch made it clear that suitable employment as set out in s. 6(2)(b) means employment in a competitive, real-world setting that is comparable in nature, status and wages. This court did not restate the test in Burtch to incorporate those factors; rather it stated the test is that contained in s. 6(2)(b). As Juriansz J.A. wrote, at para. 24:The proper test, which the trial judge recognized[at para 63] earlier in his reasons, is whether, “as a result of the accident, the insured person is suffering a complete inability to engage in any employment for which he or she is reasonably suited by education, training or experience”. It is not necessary that the insured person be formally qualified and able to begin work immediately in order for a particular employment to be considered a reasonably suitable alternative. A job for which the insured is not already qualified may be a suitable alternative if substantial upgrading or retraining is not required. [Emphasis added.] [34] It thus follows that I also do not agree with OTLA’s submissions that Burtch is irrelevant because it dealt with the necessity of retraining for a different job. Burtch is relevant and helpful because it examines the process that must be undertaken in determining whether or not an insured meets the test pursuant to s. 6(2)(b). The facts of Burtch required this court to consider whether the requirement to retrain for a suitable alternative job meant that the insured met the test for post-104-week IRBs, and this court found that it did not.
[35] Further, it also follows that I do not accept Traders’ submission that a decision maker need not consider factors related to whether there is employment in a competitive, real-world setting commensurate in nature, status and reward to the insured’s prior employment. Burtch did not incorporate these factors as stand-alone requirements to the test under s. 6(2)(b), but confirms they are relevant to the evidence-based analysis of whether an insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.
[36] In addition to Burtch, the parties also referred (for the first time on appeal to this court) to this court’s earlier decision in Coombe. In that case, the court dismissed an insured’s appeal from a decision holding he was no longer disabled and therefore no longer entitled to post-104-week benefits. The policy at issue in Coombe required the insurer to pay benefits after 104 weeks if the insured’s injury “permanently and totally disabled [him] from engaging in any occupation or employment for which he is reasonably suited by education, training or experience”.[3] In an earlier decision, Cromarty J. was satisfied the test was met and ordered the insurer to pay benefits “for the duration during which the [insured] is permanently and totally disabled from engaging in any occupation or employment for which he is reasonably suited by education, training or experience”: Coombe v. Constitution Insurance Co., [1978] I.L.R. 1-1034 (Ont. H.C.), aff’d in part, 1979 CarswellOnt3416 (C.A.) The insurer later successfully moved for an order suspending Cromarty J.’s order, arguing the insured was no longer permanently and totally disabled. The insured appealed.
[37] On appeal, this court upheld the trial judge’s decision ceasing benefits. The court observed, at p. 310, that a person would not be totally disabled under the policy if they could work at a job that was reasonably comparable to their old occupation in status and reward and for which they were reasonably suited given their education, training and experience:This judicial interpretation of the definition of “total disability” does not impose a burden upon the [insurer] to prove that the [insured] is receiving the same or similar remuneration to what he received prior to his accident, but only that he was able to enter into an occupation that is reasonably suitable in status and reward. We would not disturb the trial judge’s finding of fact that [the insured] was engaged in the day-to-day operation of Custom Chopper; an occupation for which [the insured] was reasonably suited by education, training or experience. [38] Coombe is consistent with the approach taken in Burtch. In both cases, the court confirmed that a decision maker must determine whether the insured suffers a complete inability to engage in employment for which they are “reasonably suited by education, training or experience” taking into account all relevant factors, including whether the employment is reasonably suitable in status and reward. In other words, status, reward and other factors are considerations that inform the applicable test, not stand-alone requirements.
[39] Rumball also relies on Coombe for the argument that the onus is on an insurer, not the insured, to show that there is reasonably suitable alternative employment. While the passage quoted above from Coombe about the insurer’s “burden” to prove that the insured “was able to enter into an occupation that is reasonably suitable in status and reward” could, if read in isolation, support Rumball’s position, it is important to place the passage in context. In Coombe, the insurer sought to suspend a court order requiring it to pay benefits and accepted that it bore the burden of proof throughout the action.[4] In contrast, when an insured person applies for benefits under s. 6(2)(b) of the Schedule, the onus is on them to prove their entitlement to the benefits sought: Nash v. Aviva General Insurance Company, 2022 ONSC 6723, 31 C.C.L.I. (6th) 153 (Div. Ct.), at para. 40; C.P. v. Certas Home and Auto Insurance Company, 2022 ONSC 5978 (Div. Ct.), at para. 25.
[40] I am solidified in my view on the appropriate test under s. 6(2)(b) of the Schedule by the legislative text and context. It is clear that the test for post-104-week IRBs is a more stringent one than the test prior to two years, which requires that the insured person demonstrate that they are unable to return to the job they were doing at the time of the accident. The language of s. 6(2)(b) is clear and unambiguous. The decision maker must determine whether an insured is completely unable due to injuries from the accident to work at any job for which they are “reasonably suited by education, training or experience.” It follows that the status and nature of a potential job should be considered as well as the compensation. In determining if the test has been met, the decision maker is required to consider the evidence in the context of the insured’s circumstances and in doing so, must take into account the factors of the status, remuneration and nature of the proposed employment. To do otherwise does not accord with the legislation’s remedial purpose: see Tomec v. Economical Mutual Insurance Company, 2019 ONCA 882, 148 O.R. (3d) 438, at para. 42, leave to appeal refused, [2020] S.C.C.A. No. 7.
[41] Nevertheless, as the foregoing analysis shows, the statutory text does not spell out each factor that the decision maker must consider when making the determination of whether or not the insured meets the test for post-104-week IRBs under the Schedule or treat those factors as stand-alone requirements under the test. For example, while much of the argument in this case focused on whether suitable employment meant employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward, there is no dispute that the decision maker must evaluate the insured’s medical status, even though s. 6(2)(b) does not explicitly state that medical status must be taken into account.
[42] In sum, in determining entitlement to IRBs in the post-104-week period, the decision maker must decide, based on the evidence, if the insured person is completely unable to work in any job or capacity for which they are suited by education, training or experience. This is necessarily a contextual analysis. In order to make this determination, the decision maker must consider all the relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.
(2) Legal Principles Applied:
[43] Having set out the correct test, I now turn to its application in this case. Before doing so, however, I pause to clarify certain language in the Divisional Court’s reasons about the test as it was the focus of some confusion before this court. In its decision, at para. 60, the Divisional Court summarized the test for post-104-week IRBs under the Schedule in the following terms:As such this court, being bound by the decision of the Court of Appeal in Burtch, concludes that the only test to be applied in establishing an entitlement to post-104 [IRBs] is the one set forth in the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages. [44] As should be clear from these reasons, the Divisional Court was correct in stating that the test that must be met to qualify for IRBs after the 104-week mark is the one set forth in s. 6(2)(b), namely “a complete inability to engage in any employment or self-employment for which [the insured] is reasonably suited by education, training or experience.” Further, while the Divisional Court is technically correct that the test does not state explicitly that suitable employment should be comparable in terms of status and wages, I underscore that this passage should not be misread to suggest that these factors are irrelevant to the test. Rather, they are essential factors that must be considered in order to determine if an insured has met the test for post-104 IRBs. Importantly, these factors are not stand alone, nor are they determinative of whether an insured meets the test. It is an evidence-based, contextual analysis that must take into account the particular circumstances of the insured.
[45] In this case, the Adjudicator correctly described the test for post-104-week SABs under the Schedule, considered the evidence and arrived at the determination that Rumball did not suffer a complete inability to engage in employment or self-employment for which she is reasonably suited by education, training or experience. The Divisional Court was correct in upholding her decision. She made no error in her analysis or application of the proper test.
[46] The Adjudicator correctly set out the test under s. 6(2)(b) of the Schedule, explaining that Rumball “must demonstrate she suffers a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience.” She noted that determining whether a person suffers a complete inability to work in any job for which they are reasonably suited by education, training or experience “requires a reflection of all the evidence” including, among other factors, wages earned, status, employer demands for reasonable hours and productivity, the nature of the insured’s condition and extent of their disability, the insured’s efforts to return to the workforce, the vocational assistance that they had, and the options for alternative work that were put forward. In a nutshell, the decision maker has to make the determination of whether or not the test has been satisfied by considering the totality of the evidence in each particular case. It is not done in a vacuum.
[47] Applying the correct test, the Adjudicator concluded Rumball did not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience for the post-104-week period. She considered the medical evidence called by both parties, Rumball’s testimony, her volunteer work at a consignment store, her caregiving activities for her father, and her work as an educational assistant and as a wedding planner. She found wedding planning was a job Rumball was reasonably suited for by education, training or experience.
[48] Determinations of the nature and extent of injuries suffered are necessarily fact driven and evidence is critical to the assessment. In this case, the Adjudicator reviewed the evidence carefully and found that the medical evidence was not sufficiently up to date to enable her to determine whether Rumball’s impairments continued to the extent that it made it impossible for her to work. In addition, the medical experts did not obtain a detailed work history from Rumball so they were unable to offer opinions on what type of work she was capable of doing, although Dr. Ta stated that she would be an excellent candidate for retraining. As well, Rumball failed to call evidence from a vocational expert, who could have assisted the Adjudicator with the issue of whether there was other employment that was suitable in light of her education, training or experience.
[49] The Adjudicator found that Rumball had not satisfied the test for post-104-week IRBs as set out in s. 6(2)(b) based on the evidence that was tendered. That finding was based on the application of the correct evidence based and contextual test, including consideration of whether other jobs were of the same nature, status and remuneration in a real-world, competitive setting.
[50] In any event, Traders argues that even if Rumball is correct that the test includes a stand-alone requirement there be an alternative job which exists in the real-world setting that is similar in nature, status and remuneration, Rumball would not meet the test. I agree. The onus is on the insured to prove their entitlement to benefits on a balance of probabilities and it is clear on the facts of this case that Rumball failed to meet her onus. The Adjudicator found on the evidence that the job of a wedding planner was a suitable one for Rumball and one which she was capable of doing. That finding was available on the evidence and I see no error in her decision. Rumball urges this court to come to a different conclusion, but it is not the function of this court to retry the case.
[51] In conclusion, the Adjudicator articulated and applied the correct test in her determination that Rumball did not suffer a complete inability to engage in any employment or self-employment for which she is reasonably suited by education, training or experience for the post-104-week period. . Jamali v. Economical Insurance Company
In Jamali v. Economical Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed a joint appeal-JR proceeding, here from a LAT decision holding that the appellant-applicant was "not catastrophically impaired and is not entitled to an income replacement benefit".
Here the court considered SABS 'income replacement benefits':(iii) Income replacement benefits
[17] Sections 6(1) and (2)(b) of the SABS provide that the insured person is entitled to receive an income replacement benefit up to 104 weeks after the accident for the period in which they suffered a substantial inability to perform the essential tasks of the employment in which they spent the most time during the 52 weeks before the accident, and after 104 weeks if they suffered a complete inability to engage in any employment of self-employment for which they are reasonably suited by education, training, or experience. . Jendrika v. Intact Insurance Company
In Jendrika v. Intact Insurance Company (Ont Divisional Ct, 2025) the Divisional Court dismissed a LAT SABS appeal, here from a reconsideration denial, that from an earlier denial of a time extension to file a reconsideration, that from an IRB and benefits denial.
Here the court considers the test for SABS 'income replacement benefits' (IRBs), including that applicable to post-104-week issues:[35] The Appellant specifically asserted that the adjudicator failed to consider factors over and above those outlined in the relevant sections of the SABS and the decision should be set aside on that basis. The problem with that assertion is that it is contrary to the case law. In Burtch v. Aviva General Insurance Company of Canada, 2009 ONCA 479, (2009) 97 O.R. (3d) 550, the Court of Appeal found that the test for eligibility for IRB’s is as set out in the regulations. In respect of the post-104-week disability test for IRB’s, this Court considered the issue in Traders General Insurance Company v. Rumball, 2022 ONSC 7215 and stated (at para. 60):
[60] I do not accept that Burtch incorporates any other disability test other than that set forth in s. 6 of the Schedule. While the Court of Appeal endorses reference to earlier jurisprudence, including cases from FSCO and now the LAT, as clarifying how specialized tribunals interpret and apply the Schedule, those decisions are not binding on the court. While those decisions include as part of the post-104 disability test a test that suitable employment means employment in a competitive, real-world setting, considering an employer’s demands for reasonable hours and productivity and a test that the work should also be comparable in terms of status and wages, we do not accept that is the test set forth in the Schedule. As such this court, being bound by the decision of the Court of Appeal in Burtch, concludes that the only test to be applied in establishing an entitlement to post-104 IRBS is the one set forth in the Schedule and it does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages.
[36] From this passage, it is clear that the adjudicator articulated the correct test for post-104-week IRB’s. It is also clear that she applied the correct test in respect of the pre-104-week IRB’s. The appellant’s issues with the adjudicator’s decision in respect of IRB’s are all disagreements with the factual conclusions that the adjudicator has reached. . The Personal Insurance Company v. Tagoe
In The Personal Insurance Company v. Tagoe (Ont CA, 2024) the Ontario Court of Appeal dismissed a LAT SABS appeal, here considering 'income replacement benefits' (IRBs):A. The Income Replacement Benefits Scheme
[3] When an insured person is employed at the time of an automobile accident, s. 5(1) of the SABS requires their insurer to pay income replacement benefits (“IRBs”), if the insured person “as a result of and within 104 weeks after the accident, suffers a substantial inability to perform the essential tasks of that employment”. Section 6(1) of the SABS requires the insurer to pay IRBs during the period in which the insured person suffers this substantial inability, subject to the exclusions in s. 6(2). Section 6(2)(a) excludes “the first week of the disability”, while s. 6(2)(b) provides further that the insurer is not required to pay IRBs:... after the first 104 weeks of disability, unless, as a result of the accident, the insured person is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience. [4] In summary, an insured person can claim IRBs for the first two years of disability due to an automobile accident if (i) the disability occurs within two years of the accident and (ii) the person is “substantially unable” to perform the essential tasks of their current job. However, after the first 104 weeks of disability, the person must show that they are completely unable to do any work for which they are “reasonably suited”.
[5] When a dispute arises over an insured person’s entitlement to receive any form of statutory accident benefits, including IRBs, the insured person or the insurer may apply to the LAT for dispute resolution: Insurance Act, s. 280. Section 56 of the SABS requires applications to the LAT to “be commenced within two years after the insurer’s refusal to pay the amount claimed.” The LAT’s decision may then be appealed to the Divisional Court “on a question of law only”: Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, s. 11(6).
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