Can Applicant Make IRB Claim in Ontario, Quebec, or Both?

April 05, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

K. T. v Allstate: Entitlement to benefits; IRBs; jurisdiction for insurance claim; should applicant be precluded from making her insurance claim in Ontario or Quebec, or can there be two claims made for IRBs; Arbitrator rules that claim can be made in both jurisdictions as the claim periods do not overlap.

Date of Decision: February 3, 2017
Heard Before: Adjudicator Cynthia Pay

Overview:

K.T. was struck by a car while she was walking on November 28, 2013.  She does not own a car herself.  Both her spouse and the driver of the vehicle that hit K.T. had automobile insurance coverage with Allstate. K.T. sought benefits pursuant to the SABs.  She applied for dispute resolution services to the LAT regarding her entitlement to income replacement benefits.

Allstate raises a preliminary issue about K.T.’s entitlement to IRBs in Ontario. It requests that the Tribunal dismiss her Application.  Allstate submits that K.T. is not eligible for income replacement benefits in Ontario because at the time of the accident she was a resident of Quebec. As a Quebec resident, she was entitled to and received benefits under the Quebec Automobile Insurance Act.  Allstate asserts that this is her main or only source of accident benefits.  In the alternative, Allstate submits that if K.T. is entitled to also claim accident benefits in Ontario, they are only liable to pay any benefit that is in excess of her Quebec entitlements. As K.T.’s Quebec income-related benefits were higher than those Allstate has determined she would be entitled to in Ontario, there are no benefits, all Allstate submits she is not entitled to income replacement benefits in Ontario.

K.T. disagrees, and submits that she is entitled to claim income IRBs in Ontario.

Issue:

1. Is K.T. entitled to claim income replacement benefits in Ontario?

Result:

1. K.T. is entitled to claim income replacement benefits in Ontario.

On January 6, 2014 K.T. applied for accident benefits from the Quebec Société de l’assurance automobile (“SAAQ”).  She was found to be entitled to income loss compensation of $743.27 every two weeks ($371.64 per week).  These benefits were ongoing until they were terminated as of November 5, 2014.  K.T. did not appeal this decision.  Details regarding the reasons for termination or why K.T. did not appeal the decision were not available.

On November 20, 2014, K.T. applied for IRBs in Ontario from Allstate under the Schedule.  She disclosed the benefits she had received under the Quebec insurance scheme.  Allstate provided IRBs of $145.66 per week starting on November 6, 2014.  These benefits were terminated on June 10, 2016 for medical reasons.  K.T. initiated an application to the Tribunal to dispute this termination.

Allstate initially claimed that IRBs were paid in error and requested repayment of these benefits, but has now withdrawn this claim.  In doing so, they do not acknowledge any liability for further payments to K.T.

The Arbitrator reviewed the law and noted that this case is a complicated situation involving two jurisdictions and languages.  The Ontario accident benefit scheme has been found to have social welfare and consumer protection purposes, and must be liberally interpreted as a result.  In this context, and on a plain reading of the Schedule, the Arbitrator found that K.T. can proceed with her Application regarding income replacement benefits.

The Arbitrator reviewed the definition of who is an “insured person” under the Schedule? The Arbitrator determined that K.T. meets the definition of an “insured person” under the Schedule.  Section 3 of the Schedule states that an “insured person” includes, in respect of a particular motor vehicle liability policy, the “spouse of the named insured” if they are “involved in an accident in or outside Ontario that involves the insured automobile or another automobile”.

The Arbitrator then turned to the question of whether K.T.’s place of residence relevant to her eligibility for income replacement benefits?

Allstate argues that K.T. is not eligible for accident benefits in Ontario because she was a resident of Quebec at the time of the accident.  They submit that the SAAQ is her main benefit provider and only source of accident benefits, that she must pursue her claim with the SAAQ, and has no right to abandon it.

The Arbitrator determined that K.T.’s place of residence is not relevant to whether or not she is eligible for accident benefits in Ontario.  Residence would only be relevant if the accident took place outside of Ontario (as outlined in s.3(c) of the Schedule).  In this case, however, the accident occurred in Ontario.  Section 3 of the Schedule defines who is an “insured person”, and K.T. meets this definition.  Place of residence is not listed as a criterion for determining whether or not a claimant involved in an accident in Ontario can apply for accident benefits in Ontario.  It is therefore unnecessary for to make a determination regarding K.T.’s place of residence.

On plain reading of the SABS the Arbitrator found that K.T. is an “insured person” under the Schedule, which provides that an insured person may have access to IRBs in other jurisdictions in addition to benefits in Ontario.  The Schedule also includes provisions which outline how the receipt of other income replacement assistance will affect benefits available in Ontario. 

Allstate submits in the alternative that if K.T. is entitled to claim benefits in Ontario, she may only do so to the extent that the Ontario benefits exceed those available from Quebec.  It asserts that there are no benefits available in Ontario because K.T.’s periodic income-related benefits were higher under the SAAQ than what would have been available under the Schedule for income replacement benefits.

The Arbitrator noted that this argument is confusing, because K.T. does not claim income replacement benefits during the same period she received benefits from Quebec.  She received $743.27 every two weeks under the SAAQ after the accident until November 5, 2014, when the SAAQ benefits were terminated.   She then applied for income replacement benefits in Ontario under the Schedule.  The question of “excess” benefits therefore appears to be irrelevant, because she is not applying for “excess” benefits during the period she was receiving benefits under the SAAQ.  Rather, she is claiming income replacement benefits under the Schedule for a time period when she was not receiving anything under the SAAQ.

The Schedule states that other income replacement assistance “for the particular week the benefit is payable” will be deducted.  In this case, there is nothing to deduct from K.T.’s income replacement benefits because she did not receive any other income replacement assistance during the period in question.  The amount of benefits K.T. received from Quebec under the SAAQ are therefore not relevant under the Schedule, because they were not received in the “particular week[s]” that K.T. is claiming income replacement benefits in Ontario.

On the basis of the above the Arbitrator found that K.T. is entitled to claim income replacement benefits in Ontario, and is not precluded from pursuing her application with the Tribunal.

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It is important that you review your accident benefit file with one of our experienced personal injury / car accident lawyers to ensure that you obtain access to all your benefits which include, but are limited to, things like physiotherapy, income replacement benefits, vocational retraining and home modifications.