When you are injured in a car accident, Ontario law guarantees your right to certain benefits from your insurance carrier. These rights are spelled out in the Statutory Accident Benefits Schedule (SABS) and cover much more than your immediate medical expenses or the damage to your vehicle.
Ontario’s SABS also guarantees your right to income replacement benefits if you are unable to return to work following your accident. Income replacement does not actually provide 100% of your pre-accident wages. Rather, the SABS directs the insurer to pay a benefit of up to 70% of your prior gross weekly income, subject to a maximum benefit of $400 per week for the first 104 weeks (2 years) of your disability. You may also be eligible for benefits past 104 weeks under certain circumstances.
But what happens if you were unemployed or not working prior to your accident? In that scenario, you may receive what are known as non-earner benefits. This type of benefit applies when an accident victim “suffers a complete inability to carry on a normal life,” according to the SABS. If eligible, the victim is entitled to a fixed benefit of $185 per week for the first 104 weeks of disability, with the potential for a higher benefit amount after that time.
Article at a Glance
Article at a Glance
- A person injured in an Ontario motor vehicle accident is entitled to statutory accident benefits regardless of fault.
- Among the accident benefits a person may be eligible for are income replacement benefits and non-earner benefits.
- If an individual is somehow entitled to both income replacement and non-earner benefits, he or she must choose which to receive. Otherwise, the insurance company may refuse to pay either.
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Lefebvre v. Aviva Insurance Company of Canada: Accident Victim Hurts Her Own Cause by Failing to File Election
Unfortunately, you cannot receive both the income replacement and non-earner benefits. The SABS regulations require you to make an election–i.e., choose between the two–if you are somehow eligible for both.
Your insurance company is required to notify you within 10 days of receiving your application that an election is necessary. You then have 30 days from the date you receive that notice to inform the insurance company of your decision. Your election is considered “final” under the regulations, so you cannot change your mind and switch to the other benefit if you are unhappy with your choice.
Although the insurance regulations are fairly straightforward on this point, the Ontario Superior Court of Justice recently considered (and dismissed) an appeal on this subject. The case, Lefebvre v. Aviva Insurance Company of Canada, arises from a car accident that took place more than six years ago.
Injured Plaintiff Repeatedly Fails to Make an Election
Within two weeks of the accident, the victim’s insurance carrier sent her an Accident Benefits package. These documents essentially provide the necessary forms and contact information to file a claim for statutory benefits. Normally, the forms must be returned within 30 days of receipt.
For some reason, there was a dispute here as to whether the victim filed her forms in a timely manner. In fact, the insurance company claimed they were not filed until more than three years had passed.
In any event, both sides agree that the victim filed an application for benefits in January 2015. At the time of filing, the victim was unemployed. However, she was employed for 26 of the 52 weeks preceding the accident in 2012. Based on this information, the insurance company notified the victim on January 30, 2015, that she “may be entitled to an income replacement benefit and a non-earner benefit.” The insurer requested she make the necessary election within 30 days.
Once again, for some reason the victim never filed her election. Another year passed and the insurance company sent a second notice informing her that it could not adjust her claim until she decided whether to seek the income replacement or non-earner benefits, but the victim again declined to file an election.
Plaintiff Asks Licence Appeal Tribunal to Intervene
Instead, she filed an application with the Licence Appeal Tribunal (LAT), which handles disputes between insurance companies and their policyholders and other beneficiaries.
As framed by the LAT adjudicator, there was an initial question as to whether the victim “was barred from proceeding with her claim for an income replacement benefit or non-earner benefit because she failed to make an election between those benefits.” The adjudicator ruled in favour of the insurance company on this point.
Put simply, the adjudicator agreed with the insurer that the victim “potentially qualified for both an income replacement benefit and a non-earner benefit.” She was therefore required to make an election. Unless and until she did so, her “application for benefits was not complete.”
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Superior Court: Failure to Choose Between Income Replacement and Non-Earner Benefits Doomed Plaintiff’s Claim
The victim appealed the LAT’s ruling to the Superior Court. Justice Wendy Matheson, however, was no more sympathetic to the victim’s case than the LAT. The victim argued the LAT incorrectly held that the law required her to make an election in order to complete her application for benefits. She also maintained that she filed a completed application back in 2012 and that she was entitled to a decision from the insurance company based on that application.
But as Justice Matheson explained, that is a factual issue that cannot be resolved on an appeal. In any case, the issue here was not when the victim filed her application–it was her failure to file the necessary election when asked to by the insurance company.
The victim claimed before Justice Matheson that such an election was unnecessary as she was “never eligible for the income replacement benefit.” But that conflicted with the information the victim provided in her benefits application. As mentioned above, the victim disclosed she worked 26 of the 52 weeks prior to the original car accident. That meant she was qualified for income replacement benefits, Justice Matheson noted.
Accordingly, the Court dismissed the victim’s appeal and ordered her to pay $6,000 in costs to the insurance company.
Preszler Law Help You Fight for Your Ontario Insurance Benefits
Many people find insurance forms confusing. But you should never allow ignorance or frustration to undermine your right to receive benefits. If you have questions or concerns about whether your insurance company is treating you fairly following a car accident, you should contact a qualified Toronto personal injury lawyer as soon as possible.
Do not try and deal with the insurer yourself, especially if you do not understand the law in this area. Instead, call Preszler Law Firm to schedule a free, no-obligation consultation with one of our lawyers, who can review your case and advise you of the appropriate steps to take next.