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Part of your contract with your own auto insurance company includes the potential payment of Non-Earner Benefits. Non-earner benefits are accident benefits that are available to insured drivers in Ontario. Details of these benefits are found in Part II of the Statutory Accident Benefits Schedule (SABS) of the Insurance Act. Non-Earner Benefits are intended to compensate you if you suffer a complete inability to carry on a normal life. They pay $185 per week after an appropriate waiting period.

Under the SABS, you may qualify for non-earner benefits if (1) you were unemployed or retired at the time of the accident or (2) you were a full-time student or a recent graduate at the time of the accident. In addition to being unemployed, a student, or a recent graduate, you must be found to suffer a “complete inability to carry on a normal life” as a result of and within 104 weeks after the accident.

For accidents that occurred prior to June 1, 2016, the non-earner benefit is payable six months after the date of your accident (the “waiting period”). After the waiting period and for up to two years post-accident, you will receive $185 per week. You may continue to receive the weekly $185 benefit two years after the accident provided you suffer “a complete inability to carry on a normal life” as a result of your accident-related injuries. This benefit is available for life for individuals over 16 years of age, with a set formula ramping down the benefit at age 65.

For accidents that occurred after June 1, 2016, the non-earner benefit of $185 per week is payable after a four week waiting period to a maximum of two years post-accident. This is a substantial decline from previously available benefits.

Complete Inability Test

The crux in qualifying for the non-earner benefit hinges on whether you suffer “a complete inability to carry on a normal life.” This has been interpreted to mean that you have sustained an impairment that continuously prevents you from engaging in substantially all of the activities you normally engaged in prior to your accident. In determining whether you meet this criteria, the courts will look at a number of different factors. In Heath v Economical Mutual Insurance Company,[1] the ONCA stated that the following factors should be considering when determining entitlement to non-earner benefits:

  • The claimant’s activities and life circumstances before the accident are to be compared to their activities and life circumstances after the accident. Courts are to assess the claimant’s activities and circumstances over a reasonable period of time prior to the accident.
  • All of the pre-accident activities the claimant normally engaged in, prior to the accident, are to be considered. Courts are to give greater weight to the activities identified as important to the claimant’s pre-accident life.
  • The claimant must establish that changes in their post-accident life continuously prevented them from engaging in substantially all of their pre-accident activities.
  • Courts must view a claimant’s activity as a whole. A claimant who goes through the motions of an activity will not be found to be engaging in that activity. The courts are to consider the quality of performance of an activity post-accident.
  • When pain is a factor, the courts must consider whether the degree of pain experienced is preventing the claimant from engaging in pre-accident activities.

Pre-Existing Conditions and Non-Earner Benefits

If you had pre-existing injuries or a pre-existing health condition prior to your accident, you are not precluded from claiming or qualifying for non-earner benefits. In Barnes v Motor Vehicle Accident Claims Fund and TTC Insurance Company[2], the Arbitrator stated that one must compare the applicant’s “normal life” before the accident with their normal life after the accident. The Arbitrator indicated that an applicant may still meet the “complete inability” test if their normal life prior to the accident included a decreased level of functionality and mobility.

In Maria Da Ponte and Motor Vehicle Accident Claims Fund[3], the applicant suffered from pre-existing health complications that had limited her mobility prior to her accident. The Arbitrator found that despite her pre-existing condition, the collision was the significant factor contributing to her level of disability following the accident. As the applicant was unable to resume her household duties in a substantial way she qualified for non-earner benefits.

In Ansari and State Farm Mutual Automobile Insurance Company[4] the Applicant was injured in a collision; however, she had significant pre-existing medical issues as a result of a previous accident. As a result of her pre-existing conditions, the applicant had adopted a new functional lifestyle. The Arbitrator found that although she was dependent on others prior the accident, she was significantly less dependent prior to the accident.  The applicant was assessed many times by health practitioners, and though some disagreed on the level of her capacity to engage in daily activities, the Arbitrator determined that she met the complete inability test.

The applicant’s claim in Mole and Wawanesa Mutual Insurance Company[5] focused on her physiological condition after the accident. In this case, the applicant suffered from pre-existing depression and anxiety. The Arbitrator found that her enjoyment of activities had been significantly compromised as a result of the accident. The applicant was able to establish that the quality and amount of her normal household and interest activities were compromised as to qualify as “substantially all” of her activities of normal life.

Non-Earner Benefits and Ontario Disability Support Programs

If you have been awarded non-earner benefits it is important to understand that the payments are non-exempt forms of compensation. This means that non-earner benefits are considered income and/assets and will affect your eligibility or the amount of money you will receive under other income support programs, such as the Ontario Disability Support Program (ODSP). If you are using or plan to use your award to purchase an asset, the asset will not automatically be exempted. For example, if you use the funds to purchase (i) a principle residence; (ii) an approved asset necessary for health and welfare; (iii) or an exempt asset, such as a primary motor vehicle, those assets remain exempt and will have no impact on your income support. However, if you are an ODSP recipient and you purchase a non-exempt asset such as a second home or a second vehicle, the asset is not exempt and will affect the value of other income sources you receive.

Conclusion

If you are an insured driver in Ontario and you are injured in a car accident you may qualify for non-earner benefits. To be approved for the benefit you must meet certain conditions set out in Part II of the Statutory Accident Benefits Schedule.

This article was written by Anna Szczurko with the assistance of Kristen King. Anna is a lawyer practicing exclusively in the area of plaintiff personal injury litigation. Kristen is an articling student at Siskinds who has recently graduated from the University of Ottawa. If you have been injured or have any questions about this article, please contact Anna for a free consultation by email or at 519.660.7784

[1] Heath v Economical Mutual Insurance Company, 2009 ONCA 391.

[2] Barnes v. Motor Vehicle Accident Claims Fund and TTC Insurance Company, (FSCO A10-000563 and A09-001192, July 13, 2012)

[3] Maria Da Ponte and Motor Vehicle Accident Claims Fund (FSCO A01-000486)

[4] Ansari and State Farm Mutual Automobile Insurance Company (FSCO A12-004303, December 24, 2014)

[5] Mole and Wawanesa Mutual Insurance Company (FSCO A04-B000994, February 26, 2007)

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