The License Appeal Tribunal released a decision, Foster v. Aviva [19-04657/AABS] which concluded that the Canada Emergency Response Benefit (“CERB”) was a deductible from the income replacement benefits (“IRB”) payable on the basis it was gross employment income.
However, a Reconsideration was requested by the Applicant, Foster. The Reconsideration was granted.
Vice-Chair, Boyce confirmed that an error of law was made. Vice-Chair, Boyce, found that the Adjudicator incorrectly focused on the definition of “gross employment income” in s. 4(1) of the Schedule to conclude that 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.
As 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, CERB is not considered “gross employment income”, it cannot be deducted from an IRB under s. 7(3)(a).
Thus, Vice-Chair Boyce agreed that CERB is not deductible from IRBs under the Schedule and found that the Tribunal erred in law when it ordered that CERB be deducted from the Applicant’s $400.00 per week IRB.
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