Insured not able to claim Employment Insurance as 'Income'

January 31, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Schuurman and Gore Mutual - Entitlement to IRBs; Difference between Self Employment and Employment Insurance; Is EI considered income; car accident; accident benefits

Schuurman and Gore Mutual

Date of Decision: December 13, 2016
Heard Before: Adjudicator Isabel Stramwasser

Sonja Schuurman was hurt in a car accident on September 23, 2014. She applied for statutory accident benefits from Gore but when disputes arose concerning her entitlement to benefits Ms. Schuurman applied for arbitration at the FSCO.

Issue:

1. Is Ms. Schuurman eligible to claim income replacement benefits under section 5 of the Schedule?

Result:

1. Ms. Schuurman is not eligible to claim income replacement benefits under section 5 of the Schedule.

The Arbitrator noted that the burden of proof lies upon Ms. Shuurman to prove that she meets the eligibility criteria in section 5 of the Schedule. These criteria provide that an adult may receive benefits if he or she is unable to work and was employed, self-employed or in receipt of employment insurance at the time of the accident or meets the criteria for 26 out of the 52 weeks before the accident:

The Arbitrator reviewed relevant sections of the Schedule.  Notably, the terms “employed” and “employment” are not defined in the Schedule.

Ms. Schuurman advances arguments under every ground, saying that she was effectively employed, self-employed and in receipt of employment insurance at the time of the accident and that she meets the criteria for the 52 weeks before the accident.

The Arbitrator saw no justification to accept Ms. Schuurman’s argument that her receipt of funds from the Ontario government constitutes employment income. In the absence of persuasive arguments to support Ms. Schuurman’s view, the Arbitrator saw no justification for extending the meaning of employment under section 5 in the manner she suggests. The Arbitrator saw no reason to narrow the category of her taxable income to employment income. The Arbitrator also rejected her argument that monies from the Second Career Program are employment income under the Income Tax Act or any other piece of legislation. Secondly, Ms. Schuurman has gave no compelling reason to import the provisions or definitions of another act into the Schedule, other than in sections where doing so is specifically contemplated. Consequently, the mere fact that Ms. Schuurman called it employment income on a tax return does not make it so under the Insurance Act.

The Arbitrator rejected Ms. Schuurman’s argument that her farming activities constituted “self-employment” under section 5 of the Schedule as she did not provide sufficient or clear evidence in this regard. Finally, the Arbitrator rejected the argument that her receipt of employment insurance at the time of the accident because Second Career Program benefits are analogous to EI benefits.

Upon further review of the law, the Arbitrator determined that Ms. Schuurman does not meet the threshold criteria for income replacement benefits under section 5 of the Schedule. The evidence lead the Arbitrator to conclude that she was neither employed, self-employed nor in receipt of employment insurance at the time of the accident and that she does not meet the criteria for 26 out of 52 weeks before the accident.

About Deutschmann Law

Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us at 1-519-742-7774.

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.