Foster v. Aviva Gen. Ins. Co., 2021 CanLII 117413 (ON LAT)

Full Decision

The CRB and CERB are NOT deductible from IRBs!

Recently, in the Reconsideration Decision of Foster v. Aviva,[1] Vice-Chair Boyce of the LAT tackled the issue of whether the CRB (Canada Recovery Benefit) and CERB (Canada Emergency Response Benefit) are deductible from IRBs.

In the initial application, the LAT found that the Applicant, Foster, was entitled to a $400/week IRB. However, the Tribunal also found that the CRB/CERB was deductible from the IRB payment.

Foster then sought a reconsideration pursuant to 18.2(b) of the Tribunal’s Common Rules,[2] arguing there was a significant error of law, and the outcome would have been different had the error not been made. In a rare occurrence, the Respondent (Aviva) even agreed that the Tribunal’s decision on the issue was incorrect. It was also agreed that neither party made fulsome submissions on the issue at the first hearing.

The Tribunal recognized that under s. 7(3) of the Statutory Accident Benefits Schedule (SABS), 70% of “gross employment income” and 70% of “self-employment income” received by an insured after a car accident is deductible from the IRB quantum. Further, the Tribunal recognized that under s. 4(1) of the SABS, “gross employment income” is defined to be “salary, wages and other remuneration from employment, including…any benefits received under the Employment Insurance Act (Canada)…”  

Vice-Chair Boyce, however, found that the CRB/CERB was neither gross employment income nor self-employment income. It is not salary or wages, or other remuneration from employment and it is not akin to EI benefits either. The reasons for that conclusion were as follows:

  • Eligibility to the CRB/CERB is not tied to employment status
  • Payments are not made by the employer, but by the CRA as part of an ad hoc government program
  • The CRB/CERB is not calculated by reference to pre-accident earnings since everyone who is eligible receives the same amount
  • The CRB/CERB is not paid under the Employment Insurance Act, but rather the Canada Emergency Response Benefit Act, and thus is not EI.

Additionally, in this case, Foster as a matter of fact did not receive the CERB as a result of being employed after the accident.

Accordingly, Foster was granted full entitlement to her IRBs.

[1] 2021 ONLAT 19-014657/AABS – R

[2] It was referred to as the “Common Rules” in the Reconsideration Decision, but I believe it to be the Rules of Practice and Procedure, Version 1.

Written by

James Page is a lawyer at Martin & Hillyer Associates who has been practicing personal injury and civil litigation since 2010.
James is a board member of the Ontario Trial Lawyers Association (OTLA) and the Halton County Law Association (HCLA), and a Past President of the Brain Injury Association of Peel & Halton (BIAPH).