The decision from the Licence Appeal Tribunal (LAT) in the matter of L.A. and Wawanesa Mutual Insurance Company (Tribunal File Number: 19-007357/AABS) addresses the issue as to whether the claimant, who was unemployed at the time of the accident, was receiving EI benefits and, therefore, eligible to receive a weekly income replacement benefit (IRB).
L.A. was involved in a motor vehicle accident on July 8, 2018 for which an application was made to receive an IRB. However, Wawanesa raised a preliminary issue at the case conference that L.A. was not eligible for an IRB as his EI benefits had ended on June 30, 2018, prior to the accident. As such, and as L.A. was neither employed for at least 26 weeks during the 52 weeks before the accident nor self-employed at the time of the accident, he was ineligible for an IRB, pursuant to subparagraphs 5(1)(1)(ii) and 5(1)(2)(i) of the Statutory Accident Benefits Schedule – Effective September 1, 2010 Ontario Regulation 34/10 (SABS), respectively.
The applicant's position was that although his entitlement to EI benefits had ended on June 30, 2018, prior to the accident, he had received an EI benefit 11 days before the accident and his last EI benefit payment on July 11, 2018, three days after the accident, so he was receiving EI benefits at the time of the accident.
The Adjudicator rejected the applicant's argument. She did so by focusing on the EI benefit period to which the EI benefit payment relates, referencing the construct of the EI Act and related Guidelines. When an insured person makes a claim for EI benefits, a benefit period is established and then EI benefits are payable to the person for each week of unemployment within the benefit period, subject to the claimant satisfying the one-week waiting period for which EI benefits are not otherwise payable. In her view, “an applicant cannot “receive benefits” and cannot be paid under the EI Act unless a benefit period has been established. Any receipt of payments must be in accordance with a benefit period” which, in the case of L.A. had ended prior to his accident.
And although the Adjudicator was not bound by the findings of the Financial Services Commission of Ontario in the matter of Jozef Kazimierczuk and Pembridge Insurance Company (Appeal P16-00057), she agreed with its premise when making her finding. Mr. Kazimierczuk's motor vehicle accident took place during what was, at the time, a two-week waiting period for which EI benefits were not otherwise payable and it was found that he was not entitled to an IRB because he was not eligible to receive an EI benefit until he served the two-week waiting period.
As such, the litmus test is not when an EI benefit payment is received, but the period to which it relates when determining whether a claimant “was receiving benefits under the [EI Act] at the time of the accident” and, therefore, when determining eligibility for an IRB, pursuant to clause 5(1)(1)(ii)(A) of the SABS.
Monique Lewis, CPA, CA•IFA, CFF
Senior Manager, Forensic Dispute and Investigations
BDO Canada LLP