At the time of her 2014 MVA, the claimant worked full-time as an educational assistant (EA). She had also opened a wedding planning business prior to the MVA and booked four wedding contracts for 2015. The claimant was able to return to work as an EA two months post-accident, at which point the IRB payments were stopped. However, the insurer did not provide the claimant a clear and unequivocal denial of the benefit.
The claimant was unable to keep working as an EA after three months. While she was able to fulfill her wedding contracts in 2015, she reportedly relied heavily on the assistance of family members and made no profits.
The claimant did not pursue further IRB payments from the insurer until late 2017, when she submitted a new OCF-3 and filed a LAT Application. At her Hearing, the LAT dismissed her claim for post-104 IRBs on the basis that she failed to demonstrate that she met the stringent, post-104 week IRB disability test, which requires an individual to prove that they suffer:
a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training, or experience.
The LAT made several factual findings on the medical and other evidence presented at the Hearing. Some of the salient ones were as follows: the claimant had active wedding contracts in 2017, she did not provide evidence of attempts to return to wedding planning work or any other work beyond 2017, the medical records indicated her post-accident injuries were improving, she acted as a caregiver for her terminally ill father in 2017, evidencing an ability to perform caregiver tasks. She also began volunteering at a consignment store in March 2018 and resumed volunteer work at a camp for the deaf. Her request for reconsideration was considered and dismissed by the LAT.
On appeal to the Divisional Court, the claimant asked the Court to determine the applicable test, arguing that the SABS post-104 week test requires an analysis of whether other suitable alternative employment is reasonably comparable to her pre-accident employment in both status and reward.
The Divisional Court disagreed, noting that the Ontario Court of Appeal had previously considered this question in Burtch v. Aviva, 2009 ONCA 479, and found that that the only applicable test is the one set out in the SABS, which does not require the claimant to be actively employed "in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages."
The Court noted that at para. 24 of Burtch, the Court of Appeal specifically noted that:
... 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 is not required.
The Divisional Court also confirmed that the SABS places the burden of proof on the claimant, and not the insurer, to establish the post-104 week IRB disability test had been met. The Court critiqued the claimant for failing to place evidence before the LAT, including opinion evidence from a vocational expert, that was persuasive and timely. While factual findings are not reviewable on appeal, the Court also noted that the LAT's conclusions "were not only supported by the evidence but also a matter of common sense".
This is a great decision for insurers to be aware of for the next time a claimant or their legal representative argues that post-104 week IRBs are payable on the basis that a claimant has only been able to resume part-time, volunteer, training, or work that pays substantially less than their pre-accident employment. While those arguments may hold sway in the tort arena, the Courts have held they have no place in the interpretation and application of s. 6 of the SABS.
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