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Reconsideration Provides Clarity on CERB/CRB

November 18, 2021

In the recent Licence Appeal Tribunal (“LAT”) reconsideration decision of Foster v. Aviva (19-014657/AABS), adjudicator 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.

Adjudicator Boyce stated the following:

The adjudicator incorrectly focused on the definition of “gross employment income” in s. 4(1) of the Schedule to conclude that CRB/CERB is deductible from IRBs pursuant to s. 7(3)(a) as “other remuneration from employment.” Whereas IRBs are directly connected to, and calculated with respect to, an insured’s pre-accident earnings, CERB is not calculated with reference to income from employment. Indeed, everyone who is eligible receives the same amount without reference to the amount of income they earned pre-pandemic. As CRB/CERB eligibility is not tied to employment status, it follows that it cannot be considered “gross employment income” under s. 4(1) because it is not analogous to “salary, wages and other remuneration from employment”, as the adjudicator determined. In turn, as CRB/CERB is not considered “gross employment income”, it cannot be deducted from an IRB under s. 7(3)(a).”

As such, based on the above, the CERB/CRB should not be deducted for purposes of calculating an IRB.

Read the decision in full detail here

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