Can Income Replacement Benefits be Awarded if Entitlement is Established after 104 weeks?

Can Income Replacement Benefits be Awarded if Entitlement is Established after 104 weeks?

Thompson v Aviva Insurance Company, 2022 CanLII 109489 (ON LAT)

Written By: Lindsay Charles and Cody Malloy, Student-at-Law

In its recent November 18, 2022 decision, Adjudicator Brian Norris of the License Appeal Tribunal (LAT) considered an income replacement benefit (IRB) claim by an Applicant for psychological injuries sustained from providing care for her spouse who was designated as catastrophically impaired (CAT) under the Statutory Accident Benefits Schedule (SABS).  The main issue in this case was whether the Applicant’s claim was statute barred because she did not submit her claim within the time prescribed under the SABS.


The Applicant, Patricia Thompson, provided care for her husband who was deemed CAT after being in a motor vehicle collision on October 9, 2015.  Since the Applicant sustained psychological injuries related to providing care for a catastrophically impaired insured, she met the definition of an insured person under section 3(1) of the SABS.  The Applicant was on parental leave at the time of her spouse’s collision but returned to work in February 2016 until she stopped working on April 19, 2019, when she had a psychological breakdown related to caring for her spouse.

The Applicant submitted an application for accident benefits on May 7, 2019, and submitted an OCF-3 on May 31, 2019 for IRBs.  The Respondent did not reply to the application until January 20, 2020, when they advised the Applicant that IRBs would be paid from April 29, 2019 to date and ongoing.  The Respondent sent cheques to the wrong address, so the Applicant never received or cashed the cheques.  The Applicant emailed the Respondent on February 20, 2020 advising she never received the IRB payments, and the Respondent did not reply.  The Applicant applied to the LAT on April 30, 2020.  On November 20, 2020, the Respondent advised the Applicant that she was not entitled to IRBs because she made her application more than 104 weeks after her husband’s collision.

The Tribunal considered the Applicant’s entitlement to IRBs in two distinct periods:

  • Statutory entitlement: May 31, 2019 to January 20, 2020
  • SABS section 5(1)(1): after January 20, 2020

Period 1: May 31, 2019 to January 20, 2020 – Statutory Entitlement

The LAT found that the Applicant was entitled to IRBs during the first period at issue.  The Respondent failed its obligation under section 36(4) of the SABS by not responding to the Applicant’s OCF-3 within 10 business days.  The LAT found that the Respondent was subject to the consequences outlined in section 36(6) of the SABS, which states as follows:

(6) If the insurer fails to comply with subsection (4) or (5) within the applicable time limit, the insurer shall pay the specified benefit for the period starting on the day the insurer received the application and completed disability certificate and ending, if the insurer subsequently gives a notice described in subsection (4) (b), on the day the insurer gives the notice.

The Tribunal noted that section 36(6) does not reference any entitlement provisions, so section 5(1)(1) of the SABS does not apply to the statutory entitlement period.  However, the eligibility test under section 5(1)(1) does apply for the second period at issue.

Period 2: after January 20, 2020 – subject to SABS section 5(1)(1)

The LAT found that the Applicant was precluded from proceeding with her claim under the second period because her psychological injuries occurred outside of the 104-week time limit prescribed by section 5(1)(1) of the SABS.  Furthermore, the Applicant did not notify the Respondent within seven days (or “as soon as practicable”) after the circumstances arose that give rise to the entitlement to the benefit, as required under section 32(1) of the SABS.

The Tribunal noted that “as soon as practicable” is not defined in the SABS but interpreted it as the Applicant justifying a “reasonable delay” with a “reasonable excuse”.  In this case, the Applicant provided no justification giving way to a reasonable excuse or reasonable delay.

Furthermore, the LAT found that section 5(1)(1) of the SABS intended to limit claims by family members who develop psychological injuries outside of 104 weeks after an “accident”, which is defined in section 3(1) as:

“an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

Therefore, the eligibility for IRBs in section 5(1)(1) is directly related to when the motor vehicle collision occurred, not the onset of the family member’s impairment.  As mentioned in paragraph 30 of the decision, “the Applicant’s impairment arose out of her relationship to and care for the injured person, not the direct use or operation of a vehicle.”

Lindsay Charles


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