Ontario Licence Appeal Tribunal enforces burden of proof on the part of insurance claimants in IRB eligibility test

Lead by

Emily Compton

Associate

Waterloo Region

On March 29, 2021, Adjudicator Monica Chakravarti of the Ontario Licence Appeal Tribunal (“Tribunal”) published her written decision in a dispute between “V.K.” and Sonnet Insurance Company (Tribunal File Number: 19-013805/AABS). The Adjudicator held that the claimant V.K. was not entitled to Income Replacement Benefits (“IRBs”) and Medical Benefits as he failed to provide evidence of what the essential tasks of his pre-accident employment were and of which he was substantially unable to perform, according to the eligibility test set out by the Statutory Accident Benefits Schedule (“SABS”)

The dispute arose as a result of the insurer’s denial of the claimant’s application for IRBs and Medical Benefits after he was involved in a motor vehicle accident in June 2018. Prior to the accident, the claimant was employed as an Uber driver. In his evidence and submissions to the Tribunal, the claimant did not indicate that he suffered anxiety or an avoidance to driving as a result of the accident, and though the insurer examination assessment noted that the claimant explained he could not sit for a prolonged period of time due to back pain, the claimant did not adequately prove that this affected his ability to work as an Uber driver.

The Adjudicator held that the SABS places an onus on the claimants to prove that they are entitled to IRBs on a balance of probabilities. Accordingly, the claimant in the case could not prove that his essential task of driving as an Uber driver was substantially impacted as a result of the accident. Furthermore, the claimant provided inconsistent evidence on the facts of his case, including a pre-accident MRI report showing a disc protrusion and withholding information on his decade-long career as a professional mixed martial arts fighter to the assessors.

The Adjudicator ultimately found that the claimant did not satisfy his onus of proving his entitlement, nor could he prove that his post-accident medical expenses incurred in form of a psychological treatment and neurological assessment were reasonable and necessary, and dismissed his application for IRBs and Medical Benefits in favour of the insurer.

Emily Compton (Insurance Litigation) of Miller Thomson represented the insurer in the proceedings.