Coban v. Allstate Insurance Company, 2026 ONSC 1925 (CanLII)
The appellant, Josef Coban, was catastrophically injured on October 6, 2018, when his vehicle was rear-ended by a tractor trailer resulting in a T8 AIS A spinal cord injury rendering him paraplegic. At the time of his motor vehicle collision (MVC), the appellant was in receipt of wage loss benefits from the Workplace Safety & Insurance Board (WSIB) following a previous workplace injury, in the amount of $651.51 per week. These payments were made pursuant to section 43(3) of the Workplace Safety and Insurance Act, 1997 (WSIA).
In order to receive this wage loss benefit, the appellant was required to comply with the terms of a Work Transition Plan (WTP) through WSIB. At the time of the MVC, the appellant’s WTP required him to attend his Architectural Technologist program at Algonquin College and complete eight hours of work per week at COLE & Associates Architects Inc (COLE). During this time, the appellant’s employer, COLE, was not responsible for paying any remuneration to the appellant as he continued to receive $651.51 per week in wage loss benefits from WSIB.
Following the MVC, the appellant was no longer able to attend school or continue his work at COLE due to his injuries and was therefore unable to comply with the terms of his WTP. As a result, the appellant’s entitlement to wage loss benefits was reduced by WSIB from $651.61 per week to $257.27 per week, pursuant to section 43(2) of the WSIA.
The appellant subsequently applied for income replacement benefits (IRBs) from his insurance company, Allstate. The application was denied by Allstate on the basis that the appellant was not “employed” at the time of the MVC—as required under section 5(1) of the SABS—and therefore not entitled to IRBs.
There is no definition of the term “employed” under the Statutory Accident Benefits Schedule (SABS). The case law, however, defines “employed” as requiring: (a) an employment relationship; and (b) receipt of remuneration for services rendered.
Adjudicator Levitsky of the License Appeal Tribunal (LAT) agreed that the appellant was in an employment relationship with COLE at the time of the MVC, but concluded that he was not actually receiving remuneration in exchange for his services. More specifically, Adjudicator Levitsky found that the appellant’s remuneration from WSIB was not dependent on providing any services to COLE based on an assumption that the appellant would have continued to receive the same loss of earnings benefit regardless of whether or not he worked at COLE.
The Divisional Court heard the appeal and application for judicial review and concluded that the LAT had erred in law and that the decision was unreasonable.
In rendering its decision, the Divisional Court emphasized that in determining whether or not a person was “employed” at the time of the MVC, the source of the income they were receiving is not relevant. The issue is whether or not (a) an employment relationship existed and (b) whether income was being received which was related in some manner to the employment. The Divisional Court concluded that, since it was an “agreed fact” that the appellant’s remuneration was directly related to his ability to complete all the requirements of his WTP, including his employment duties and work hours at COLE, then the income was related to the employment for purposes of determining whether or not he was “employed” at the time of the MVC.
Accordingly, following the MVC, as a result of his inability to comply with the terms of his WTP, the appellant was no longer in an employment relationship and no longer receiving the same income related to that employment. The Divisional Court found that this was an employment-related economic loss and noted that interpreting the term “employed” more broadly in this manner was consistent with the principles of statutory interpretation and legislative intent of the SABS.
With respect to the LAT’s factual findings, the Divisional Court concluded that the LAT erred by wrongly focusing on irrelevant speculation/assumptions regarding what the appellant might have received in wage loss benefits had he only attended school and not worked at COLE. In this case, the agreed statement of facts was clear that the appellant was, in fact, in an employment relationship with COLE at the time of the MVC, and that this employment was required under the WTP in order for the appellant to continue receiving his wage loss benefits under section 43(3) of the WSIA. Accordingly, the Divisional Court noted that what might have happened, but did not, was of no relevance to the issues before the LAT.
Ultimately, the Divisional Court found that the LAT’s decision in concluding that the appellant was not “employed” pursuant to section 5(1) of the SABS was unreasonable. In emphasizing the consumer protection nature of the SABS, the Divisional Court aptly stated at paragraph 38 of its decision:
Finally, the outcome is reasonable and just. The appellant was receiving WSIB benefits not by choice, but because he was the victim of a workplace accident. Had he not been, he would in all likelihood have been employed and entitled to income replacement benefits would not have been in questions. The appellant sough “earning replacement benefits” to compensate for a loss of “wage loss benefits”, because through a series of misfortunes, he was unable to continue working because of two different types of accidents. He sought to rely on two types of insurance to which he would otherwise be entitled for compensation. Denying benefits essentially because a person has the misfortune of being the victim of both a workplace and automobile accident is neither reasonable nor just.
Accordingly, the Divisional Court set aside Adjudicator Levitsky’s previous decisions and the matter was remitted back to the LAT for a re-hearing on all issues in accordance with the Divisional Court’s reasons.
As of the date of this article, a motion for leave to appeal to the Court of Appeal for Ontario is pending.