Volume. 6 Issue. 45 – November 16, 2022

This week the Tribunal grappled with an IRB claim wherein the applicant purported to be “employed” prior to the accident, whereas the evidence at hearing suggested rather that he was “self-employed”. Ultimately however even this was to be interpreted with due caution.

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Applicant Not Entitled to IRB Due to Conflicting Quantum Evidence

“Employed” or “Self Employed”, Which Will It Be? – Following a February 2017 accident, the Applicant Hibbert, in 20-009328 v Aviva, received IRB at the rate of $245 per week until entitlement was stopped following an IE in August 2018.

The rate was based upon an OCF2 from one of Hibbert’s two purported employers, a fitness studio. The second employer, for whom Hibbert was a sound engineer, had not provided evidence to allow for a calculation as at the date of termination. Aviva was not prepared to accept the OCF2 submitted from the sound studio. The Tribunal was asked to rule upon IRB entitlement from February 2017 through to June 2019, less amounts previously paid.

At the hearing however, it was determined as “undisputed” that Hibbert was in fact the exclusive owner of the fitness studio, not an employee. Further, the individual who signed off on the OCF2 previously relied upon, was Hibbert’s girlfriend at the time. Confusion reigned supreme here, with Hibbert having (in 2020 and 2021) filed personal income tax returns for 2016 through 2019.

The only income reported by the applicant in these tax returns was in 2016 and in a refiled 2019 return (the initial 2019 return filed showed no income). All income reported on his tax returns was from self-employment. There was no employment income reported in his tax returns as represented on the OCF-2s. The “pre-accident 2016 and 2017 tax returns filed in 2021, showed him to be self-employed and not working respectively.”

Aviva’s accountant was “unable to determine if the information reported in the applicant’s 2016 tax return was reasonable and plausible.” Conversely, the accountant for Hibbert “assumed that the information reported by the applicant in his 2016, 2018, 2019 and 2020 tax returns was valid for the purpose of its calculations. There was no verification by Hibbert’s accountant of the income information in these tax returns, which were based on applicant self-reporting and had not been audited. With regard to 2017, Hibbert’s accountant chose not to accept the information in the applicant’s 2017 tax return which showed no income activity.” In total, four different scenarios were advanced by or on behalf of Hibbert.”.

The Tribunal further determined that “applicant had a continuing business relationship with (recording studio) since 2017, whether on a barter basis or otherwise… the evidence which the applicant has presented about his relationship with (recording studio) (is) inconsistent, incomplete and unreliable. Key elements of this relationship appear to have been retroactively defined in 2022.” In addition, “the very issue before the Tribunal turns on the reliability of the income information provided by the applicant. (Hibbert’s accountant) did not assess whether the information it used for the benefit calculations was reasonable or plausible. (Aviva’s accountant) did so.” The “information provided was inconsistent and incomplete to the extent that (Aviva’s accountant) was unable to calculate an income replacement benefit for the applicant.”

Concluding, “while a self-employed person might not be held to a standard of precision when it comes to recordkeeping, however this does not absolve an individual of the onus to provide credible evidence related to quantum upon which an income replacement benefit can be assessed. As there is no reasonable evidentiary basis upon which to assess the quantum of an income replacement benefit from February 21, 2017 through June 2019, the Tribunal cannot find that there is an overdue payment of benefits. It is not necessary for the Tribunal to address other questions of eligibility.”

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