At first glance, the Court of Appeal for Ontario’s recent decision in Traders General Insurance Company v. Rumball, 2025 ONCA 656 may appear discouraging for injured claimants and their advocates. The appellant, Ms. Rumball, ultimately lost entitlement to income replacement benefits (IRBs) beyond the 104-week mark under the Statutory Accident Benefits Schedule (SABS), upholding the Licence Appeal Tribunal’s (LAT) ruling in this matter. However, a closer reading reveals that this is a nuanced and instructive decision that provides meaningful guidance for accident victims navigating the complexities of post-104 week IRB claims.
While the statutory language in s. 6(2)(b) of the SABS sets out the basic test for post-104 week IRBs, the court’s analysis in Rumball goes further. The decision clarifies not only the legal standard but also identifies additional criteria and contextual factors that must inform the adjudicator’s assessment, even though these are not expressly enumerated in the SABS itself. In doing so, the court offers a roadmap for how to approach evidence, argument and advocacy in future cases, ensuring that the test is applied in a holistic and claimant-focused manner.
This is a valuable decision for Ontario Trial Lawyers Association (OTLA) members; it highlights the importance of a contextual, evidence-driven analysis and confirms that factors such as commensurate pay and status to one’s pre-accident employment in a real-world setting are essential considerations in the post-104 week IRB inquiry and must be assessed in each case.
Procedural history
Ms. Rumball was injured in a motor vehicle collision in December of 2014. She applied to her accident benefits insurer, Traders General Insurance Company, for statutory accident benefits, including IRBs, as she was unable to work due to her injuries.
Following her collision, Rumball returned to work briefly in February of 2015 but stopped again in May of 2015, seeking IRBs both up to and beyond the 104-week mark, which was denied by Traders.
In S.R. v. Traders General Insurance Company, 2020 CanLII 61455 (ON LAT), the LAT Adjudicator determined that Rumball was entitled to pre-104 week IRBs, but denied benefits after the 104-week mark, finding that she did not suffer a complete inability to engage in employment for which she was reasonably suited by education, training, or experience.
Rumball sought reconsideration from the LAT (S.R. v. Traders General Insurance Company, 2021 CanLII 18936 (ON LAT)), which was dismissed.
Rumball then appealed to the Divisional Court (Traders General Insurance Company v. Rumball, 2022 ONSC 7215), arguing that the adjudicator had erred in applying the post-104 week IRB test. The Divisional Court dismissed her appeal, finding no error in the LAT’s decision or its application of the statutory test. In doing so, the Divisional Court ruled that considerations of commensurate pay and status in a real-world setting were not part of the post-104 IRB test and should not be considered. This was a reversal of some 40 years of jurisprudence.
Rumball subsequently sought leave to appeal to the Court of Appeal on the issue of the correct interpretation of the post-104 week IRB test under s. 6(2)(b) of the SABS. OTLA was granted leave to intervene, specifically to address the scope and application of the legal test for post-104 week IRBs.
Test for post-104 IRBs: Section 6(2)(b) of the SABS
Section 6(2)(b) of the SABS provides that, after 104 weeks, IRBs are only payable if the insured person “is suffering a complete inability to engage in any employment or self-employment for which he or she is reasonably suited by education, training or experience.” This is a significantly more stringent standard than the pre-104 week test, which states that IRBs are only payable within the first 104 weeks of disability if the insured person “suffers a substantial inability to perform the essential tasks of his or her employment or self-employment.”
Championing a real-world approach
It was OTLA’s submission that the assessment of entitlement to post-104 IRBs must not be limited to the bare wording of the SABS, as stated by the Divisional Court. Instead, OTLA advocated for a contextual approach that requires adjudicators to consider real-world factors such as the availability, status and remuneration of alternative employment, and not simply whether any theoretical job exists for which the claimant might be suited.
At paragraph 42 of the decision, the Court of Appeal confirmed that the post-104 week IRB test is a contextual, evidence-based analysis:
[42] In sum, in determining entitlement to IRBs in the post-104-week period, the decision maker must decide, based on the evidence, if the insured person is completely unable to work in any job or capacity for which they are suited by education, training or experience. This is necessarily a contextual analysis. In order to make this determination, the decision maker must consider all the relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured’s former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.
The court outlined that the decision-maker must consider all relevant factors holistically, including:
- Competitive, real-world setting: Whether alternative employment is available in a competitive, real-world environment.
- Nature, status and remuneration: The nature, status and compensation of the alternative job compared to the claimant’s pre-accident employment.
- Qualifications and retraining: Whether the claimant is reasonably suited for the alternative employment, even if not formally qualified, provided substantial retraining is not required.
The court emphasized that these factors are important considerations that inform the overall analysis of determining whether the claimant meets the test for entitlement to post-104 IRBs.
Going “back to the future”
While the court ultimately found against Ms. Rumball on the facts, it expressly confirmed that these real-world considerations are not only relevant but are essential to a proper application of the test. The court rejected a narrow, literal reading of the test in the SABS and affirmed that the analysis must be holistic and evidence-based, taking into account the claimant’s actual circumstances and the realities of the labour market.
This clarification of the proper test marks an important step “back to the future,” as it provides clear guidance for adjudicators on how to assess post-104 week IRB claims and re-affirms decades of favourable jurisprudence to injured accident victims. By emphasizing a contextual real-world approach, the court has emphasized a standard that should lead to more consistent and equitable adjudication of future post-104 IRB disputes, moving away from overly technical interpretations of the statutory language. Counsel representing claimants should be prepared to marshal robust evidence addressing all relevant factors, while recognizing that no single factor is determinative.
OTLA intervention!
Thank you to OTLA members Alexander Voudouris, Stanley Pasternak, Steve Rastin and Jessica Golosky for intervening in this case!
