Foster v Aviva General Insurance

CERB not akin to EI and not deductible from IRB

In the recent Licence Appeal Tribunal (“LAT”) reconsideration decision of Foster v Aviva, 2021 ONLAT 19-014657/AABS adjudicator Vice Chair Boyce granted the applicant’s request for reconsideration. In the initial decision, adjudicator Ferguson suggested that the applicant’s receipt of the Canada Emergency Response Benefit (“CERB”) and Canada Recovery Benefit (“CRB”) should be treated in the same manner as employment insurance benefits, or other remuneration from employment, and therefore deductible when calculating an income replacement benefit (“IRB”).

The applicant requested that the LAT review adjudicator Ferguson’s determination of the deductibility of the CERB / CRB for IRB purposes.  The applicant requested that the original decision be replaced with a decision that the CERB is not deductible from their IRBs.  The respondent, Aviva submitted that it agreed with the applicant and that the LAT erred in determining that the CERB was deductible.

Vice Chair Boyce found that the Tribunal made an error of law, and granted the applicant’s request for reconsideration under Rule 18.2(b) of the Tribunal’s Common Rules of Practice and Procedure. The Vice Chair found that Adjudicator Ferguson in the previous decision incorrectly focused on the definition of “gross employment income” to conclude that CERB is deductible from IRBs as “other remuneration from employment” pursuant to subsection 7(3)(a).