Auto insurers are not entitled to repayment of income replacement benefits if their insureds do not include pandemic benefits in their gross income, Ontario’s Licence Appeal Tribunal has ruled.
“While the public policy goal of [pandemic benefits] was an expedited delivery of benefits typically available under the Employment Insurance framework, section 4(1) of [the Statutory Accident Benefits] Schedule is clear,” LAT vice chair Julian DiBattista wrote in a decision released November. “Gross employment income is defined as salary, wages and other remuneration from employment, and any benefits received under the Employment Insurance Act (Canada).
“The suite of recovery benefits provided during the pandemic were enacted through the Canada Recovery Benefits Act and do not fall into any of the items outlined as gross employment income, as defined by the Schedule.”
Alexandra Clarke was involved in an automobile accident on July 23, 2021, and sought an income replacement benefit (IRB) from TD General Insurance Company.
She submitted an OCF-2 form to the insurer on Oct. 14, 2021, confirming she worked as a registered practical nurse for Markhaven Incorporated and last worked on June 28, 2021.
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Five days later, TD sent back an Explanation of Benefits letter confirming her IRB claim was accepted. Her weekly benefit payable would be $222.40. The period of entitlement was ongoing and retroactive to July 20, 2021.
The insurer also requested a complete copy of Clarke’s Ontario Works file and her application for maternity benefits.
When TD received her Ontario Works file, the insurer noted Clarke had applied for Employment Insurance benefits. The auto insurer sent her an overpayment letter, seeking full repayment of the $8,768.91 paid out in IRBs.
But the benefits she received were not Employment Insurance or maternity benefits, Clarke told the LAT. Rather, it was the Canada Recovery Caregiving Benefit (CRCB). In 2021, the LAT found the Canada Recovery Benefit (CRB) and the Canada Emergency Response Benefit (CERB) were not considered gross employment income under the SABs. And since the CRCB was created by the same statute — i.e. the Canada Recovery Benefits Act, and not the Employment Insurance Act identified in the SABS — it too should not be considered gross income.
The LAT further found that although Clarke did receive EI benefits in 2022, TD’s request for overpayment was based on amounts she received in 2021. These were CRCB benefits and not EI benefits, the tribunal found.
“The respondent [Clarke] has presented evidence which demonstrates that they did not receive Employment Insurance payments before Feb. 10, 2022,” DiBattista wrote. “As this is the basis of TD’s allegations, I find that they are not entitled to a repayment of benefits as the criteria in s. 52(1) has not been met.
“There is no evidence that [Clarke] has engaged in willful misrepresentation or fraud, nor is there evidence that TD provided benefits in error. Therefore, for the reasons above, I find that TD is not entitled to a repayment from [Clarke].”
Feature image courtesy of iStock.com/Lovattpics
