Volume. 6 Issue. 32 – August 17, 2022

In ‘CRA Records Required and No Treatment Means No IRB’ the Tribunal considers the implications, or lack thereof, regarding failure to provide documentation to establish IRB quantum, as well as the failure to seek recommended therapy.

In ‘IRB Quantum of $0 Prior to Age $65, $122 per Week Thereafter’ some guidance on the impact of collateral income sources in determining pre and post age 65 IRB calculations. Ultimately the applicant was entitled to more IRB post-age 65 than pre-age 65.

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CRA Records Required and No Treatment Means No IRB

No Treatment Results in No IRB – Injured in a June 2015, the Applicant, Gamble, in 20-010512 v Allstate, unsuccessfully sought entitlement to IRB from July 6, 2020, through to August 6, 2020. Gamble contended that by providing her income tax returns, Allstate had sufficient evidence to allow for a calculation of the IRB sought. However, Allstate had sought additional information via a s.33 request, followed by a Tribunal production order for the hearing in question.

Firstly, the Tribunal agrees with Gamble that the failure to provide T4s was not detrimental to her claim for IRB. The Tribunal though did not agree with Gamble that providing the income tax returns was sufficient to satisfy the requirements.

The Tribunal reasoned that while said returns were “useful” in assessing IRB quantum, the returns do not “provide the veracity of the submission’s information”. To that end, the Tribunal found that the NOAs sought by Allstate would serve to confirm “that the Canada Revenue Agency has accepted or rejected the applicant’s tax and revenue information as fact.” Therefore, Gamble was found to be in noncompliance for having failed to provide the requested CRA NOAs for taxation years 2017 through 2019. This however was not the end of Gamble’s problems.

The Tribunal found that Gamble had also failed to “address why she did not attend any type of psychological services despite it being suggested to her several times, nor why she was unable to participate in virtually services, which many psychological providers offered and continue to offer.” In addition, it was further noted that psychological treatment was an important component in addressing chronic pain from which Gamble also suffered.

Therefore, the Tribunal found it “difficult to accept that she complied with section 57(2) of the Schedule when there is no indication that she has engaged in any psychological treatment to address her psychological injuries, including her chronic pain.” Given this fact, Gamble was not entitled to IRB for the period in question.

IRB Quantum of $0 Prior to Age $65, $122 per Week Thereafter

Post Age 65 IRB Exceeds Pre- Age 65 IRB – In 19-013098 v Economical, the Applicant Schuknecht and Economical disagreed on the appropriate IRB quantum through to age 65, given that Schuknecht was in receipt of other income replacement assistance (LTD AND CPP-D), which would cease upon attaining age 65. Over the course of the claim, there had been a total of seven accountant reports in attempts to establish quantum.

Prior to age 65, the ultimate point of contention was whether the other assistance was deducted on a gross or net received basis. The Tribunal, noting that the current Schedule had been effective for almost 12 years was “surprised that the issue of gross versus net deduction of “other income replacement assistance” …pursuant to s. 4 continues to be disputed.”

Schuknecht’s interpretation that only the net received was deductible was found “incorrect at law”, further noting that it was “unnecessary that counsel would directly intervene to instruct the applicant’s expert to interpret the Schedule in this manner.”

With respect to post age 65 entitlement, Economical submitted that entitlement would be zero. They contended that as the deductions to age 65 amounted to more than 70% of the gross weekly income, $0 IRB would properly reflect the “the quantum “immediately before his or her 65th birthday” as per the wording of the Schedule.” On the other hand, Schuknecht contended that this would leave her under – compensated given that the entirety of the other income assistance would cease at age 65, and that “entitlement” ought to revert back to $400 per week.

The Tribunal found Economical’s approach to be “contrary to the consumer protection mandate of the Schedule.” Schuknecht would in effect be left “in a worse position after age 65, than if she had not obtained any collateral benefits. The applicant is catastrophically impaired, and this interpretation of the Schedule would deny her any IRB after age 65.” Therefore, the IRB quantum ought to revert back to $400, said quantum to then be adjusted in accordance with the ramp down provisions of s.8(1), with the resultant IRB quantum being $122 per week, as determined in the report of Schuknecht’s expert.

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