Pan v Allstate Insurance Company of Canada, FSCO A16-003705, Arbitrator Alan Smith
This matter involved a dispute with respect to the quantum of income replacement benefits (IRBs) payable. The applicant was self-employed at the time of the accident. The insurer had been paying IRBs but took the position that:
(1) the applicant had not proven her pre-accident income; and, (2) it was entitled to deduct CPP benefits to which the applicant may be entitled.
The arbitrator found that the applicant had proven her pre-accident income based entirely upon her self-reporting documentation. While this finding was concerning, the case is most significant because the arbitrator gave effect to Section 4(1)(b) of the SABS. He found that the applicant had CPP benefits “available” and, therefore, the insurer was entitled to deduct her potential entitlement from IRBs. The arbitrator found that, at 18 months post-accident, it was reasonable to consider the applicant’s injuries “severe and prolonged”, which would qualify her for CPP disability benefits.
The arbitrator found that the insurer was entitled to deduct the CPP benefits from IRBs, despite not having requested that the claimant apply for same. This is the only case which stands for this principal.
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