Foster v Aviva, 2021 CanLII 117413

Full Decision

This Reconsideration Decision involves the issue of whether the applicant can receive both the Canada Recovery Benefit (“CRB”) and the Canada Emergency Response Benefit (“CERB”) and Income Replacement Benefits IRBs.  The Tribunal found that a prior decision made by the Licence Appeal Tribunal (the “LAT”), comprised a “significant error of law.” The subject accident occurred on May 8, 2019. The applicant returned to work in a reduced capacity until April 14, 2020, and then began receiving one or both of CRB/CERB. The applicant claimed IRBs from April 14, 2020 onward.[1] 

The error made by the original adjudicator was determining that benefits paid under the Canada Recovery Benefit and the Canada Emergency Response Benefit were deductible from the amount of Income Replacement Benefits owing under the Statutory Accident Benefits Schedule (the SABS).[2] The initial adjudicator found that CERB is “tantamount to other remuneration from employment, and therefore deductible,” and further that “it is essentially akin to Employment Insurance (“EI”) benefits in the context of the Schedule.”[3] The adjudicator ultimately determined that CRB/CERB benefits should be treated in the same manner as EI benefits or “other remuneration from employment.” The original Order of the Tribunal thus indicated that CRB/CERB benefits would be deducted from the IRB payment, in the amount of $400 per week.[4] 

In requesting a Reconsideration of the original decision, the applicant claimed that CRB/CERB should not be deductible from IRBs, because CRB/CERB benefits are not salary or wages. CRB/CERB benefits are also not “gross employment income,” nor are they considered self-employment income. CRB/CERB benefits are also not “remuneration from other employment.”[5]  

The Licence Appeal Tribunal granted the request for reconsideration.[6]  In making this decision, the Tribunal remarked that the test for reconsideration under Rule 18.2(b) involves a high threshold, and reconsideration is only warranted in cases where an adjudicator has made a “significant legal or evidentiary mistake preventing a just outcome.”[7] The Tribunal also acknowledged that, in this case, the insurer agreed with the applicant that an error of law was made (NTD this doesn’t make sense.  If the insurer agreed there was an error why did they need a hearing and not just settle?.[8]

In explaining why the initial adjudicator erred, the Tribunal remarked “Whereas IRBs are directly connected to, and calculated with respect to, an insured’s pre-accident earnings, CERB is not calculated with reference to income from employment.”[9] It thus follows that “As CRB/CERB eligibility is not tied to employment status … it cannot be considered ‘gross employment income’ under s. 4(1) because it is not analogous to ‘salary, wages and other remuneration from employment.’”[10]

To further distinguish CRB/CERB from any kind of employment income, the Tribunal notes “a claimant need not be employed prior to receiving CRB/CERB and that payments for same are not made by an employer.”[11] Moreover, “CERB is not akin to EI … as it is not paid under the Employment Insurance Act , but rather under the Canada Emergency Response Benefit Act.[12]

Additional Reading


[1] Foster v. Aviva General Insurance Company, 2021 ONLAT 19-014657/AABS, at para 8.

[2] Ibid, at para 2.

[3] Ibid, at para 8.

[4] Ibid, at para 8.

[5] Ibid, at para 3.

[6] Ibid, at para 6.

[7] Ibid, at para 7.

[8] Ibid, at para 9.

[9] Ibid, at para 10.

[10] Ibid, at para 10.

[11] Ibid, at para 11.

[12] Ibid, at para 11.


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