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Insurance (Auto) - Income Replacement Benefits (IRBs) (2). 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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