Written By: Savannah Snyder, Associate, and Cierra Hurley, Student-at-Law
7 Minute Read
Introduction
In Traders General Insurance Company v Rumball, 2025 ONCA 656 (“Rumball”), the Ontario Court of Appeal provides important clarification on the interpretation of the post-104-week income replacement benefit (“IRB”) test under s. 6(2)(b) of the Statutory Accident Benefits Schedule (the “SABS”). Writing for the court, Wilson J.A. dismissed the appeal and confirmed that entitlement to post-104-week IRBs hinges on a contextual, evidence-based analysis, rather than a rigid checklist of factors. In doing so, the Court of Appeal meaningfully distinguished and refined its earlier decision in Burtch v Aviva Insurance Company of Canada, 2009 ONCA 479 (“Burtch”), resolving ongoing confusion in the case law about the role of “real-world” employment considerations.
Facts
The Appellant, Shelley Rumball, was injured in a motor vehicle collision in December 2014 and applied for accident benefits from her insurer. Prior to the collision, she worked as an educational assistant and started a wedding planning business. Although she initially returned to work as an educational assistant, she stopped after three months due to ongoing psychical and psychological impairments. Despite these limitations, she was able to complete a number of weddings following the collision but required assistance to do so. She also engaged in volunteer work and provided caregiving services to a family member.
IRB entitlement is governed by two different tests under the SABS, depending on whether the claim is before or after the 104-week mark.[1] The Adjudicator at the Licence Appeal Tribunal (“LAT”) determined Ms. Rumball met the pre-104-week test, which requires a substantial inability to perform the essential tasks of one’s pre-accident employment. However, the Adjudicator held Ms. Rumball did not meet the more stringent post-104-week test as she did not suffer a complete inability to engage in any employment for which she is reasonably suited by education, training or experience.
Ms. Rumball’s appeal to the Divisional Court was dismissed, and she subsequently appealed to the Court of Appeal on the basis that the Divisional Court erred by misstating the test under s.6(2)(b) of the SABS and by misinterpreting the law in its application of the test.
Issue
The appeal raised a single, focused legal issue:
- What is the proper interpretation of the post-104-week IRB test under s. 6(2)(b) of the SABS?
More specifically, the Court of Appeal was asked to determine whether the test under s.6(2)(b) of the SABS, also known as the complete inability test, must consider whether employment exists in a competitive, real-world setting and must take into account the remuneration of the job as well as its status.
Key Takeaway – Post-104-Week Test
The Court of Appeal undertook a detailed review of the statutory language, the surrounding jurisprudence, and the evidentiary record before the Adjudicator. In doing so, the Court of Appeal emphasized that the language of s. 6(2)(b) is clear and unambiguous and clarified the decision maker’s task:
The decision maker must determine whether an insured is completely unable due to injuries from the accident to work at any job for which they are “reasonably suited by education, training or experience.” It follows that the status and nature of a potential job should be considered as well as the compensation. In determining if the test has been met, the decision maker is required to consider the evidence in the context of the insured’s circumstances and in doing so, must take into account the factors of the status, remuneration and nature of the proposed employment.[2]
The Court of Appeal emphasized that this determination is inherently contextual and must be made on the totality of the evidence. While factors such as job comparability, remuneration, and real-world availability are relevant, they are not independent elements of the legal test:
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.[3]
The Court of Appeal further confirmed that the onus remains on the Applicant to prove entitlement to benefits on a balance of probabilities. It rejected the Appellant’s reliance on Constitution Insurance Company of Canada v Coombe, 1997 CanLII 1845 (ON CA) for the proposition that the insurer bears the burden of proving employability, distinguishing the case on its procedural context.[4]
Applying these principles, the Court of Appeal found no error in the Adjudicator’s reasoning. The Adjudicator properly articulated and applied the correct test and conducted a thorough review of the evidence. Notably, the Adjudicator considered the Appellant’s ongoing involvement in wedding planning, her volunteer activities, and her caregiving responsibilities. The medical evidence was also found to be insufficiently persuasive, particularly in the absence of detailed vocational evidence addressing what work, if any, she could perform.
Discussion: Clarifying Burtch and the Post-104-Week Framework
The most significant contribution of Rumball lies in how the Court of Appeal clarifies and refines its earlier decision in Burtch.
In Rumball, the Court of Appeal squarely addresses a common misreading of Burtch: that it imposed a requirement for alternative employment to exist in a competitive, real-world setting and to be comparable in status and income. The Court of Appeal rejects this interpretation, confirming that Burtch did not alter the statutory test. Rather, it illustrated how certain vocational and labour market factors may be considered within the analysis. At the same time, the Court of Appeal rejects the insurer’s position that such factors can be ignored altogether. Instead, the Court of Appeal asserts that considerations such as job availability, remuneration, status, and real-world context are essential components of the evidentiary inquiry, even though they are not independent legal requirements.
This clarification is significant because it resolves a tension that had developed in the case law. By distinguishing between what must be proven (the statutory test) and what may be considered in proving it (the surrounding factors), the Court of Appeal restores a principled and flexible framework. The analysis is neither a rigid checklist nor an abstract exercise divorced from real-world conditions.
Instead, decision-makers must assess the insured’s functional capacity holistically, considering both medical limitations and how they affect real-world work ability. This includes not only medical limitations but also how those limitations translate into real-world work capacity. The result is an approach that is both faithful to the statutory language and responsive to the practical realities of employability.
Conclusion
The decision in Rumball provides clear and practical guidance on the proper application of the post-104-week IRB test. For practitioners, the Rumball decision underscores that success in post-104-week claims depends on the strength of the evidentiary record, including up to date medical evidence. The focus must remain on functional capacity and real-world context, but without treating any single factor as determinative. Ultimately, the question is whether, on the totality of the evidence, the insured is truly incapable of engaging in any employment for which they are reasonably suited by education, training or experience. This is a determination that must be grounded in evidence, not formula.
In light of the upcoming changes to the SABS, which come into effect on July 1, 2026, the landscape for IRBs is expected to shift significantly, particularly with IRBs becoming optional. As a result, it will be more important than ever for applicants and their counsel to ensure that a strong and comprehensive evidentiary record is developed from the outset of a claim. For those who opt into IRB coverage, this record will be critical in establishing entitlement, especially beyond the 104-week mark. Careful documentation of medical evidence, functional limitations, and efforts to return to work will play a key role in demonstrating an insured person’s continued entitlement and ensuring they receive the benefits they have paid for and deserve under the revised framework.
To learn about a LAT decision interpreting the meaning of “complete inability” in the context of part-time employment, read our blog here.
SOURCES:
[1] O. Reg. 34/10: Statutory Accident Benefits Schedule – Effective September 1, 2010, at s. 5(1), 6(2)(b)
[2] Traders v General Insurance Company v. Rumball, 2025 ONCA 656 (CanLII) at para 40.
[3] Ibid at para 42.
[4] Ibid at para 39.
