Insurer's IRB calculation upheld but delay in payment triggers special award against Certas in Ontario LAT decision.
In Kazadi Numni-A-Nenge v. Certas Home and Auto Insurance Company, 2026 ONLAT 24-014917/AABS, the Licence Appeal Tribunal (LAT) confirmed that Certas correctly calculated the applicant's income replacement benefits (IRBs), but still ordered a special award for unreasonable delay in payment.
The applicant, Christian Kazadi Numni-A-Nenge, was involved in an automobile accident on April 22, 2024, and sought statutory accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016). At the time of the accident, he was both employed as a cook (since January 2024) and self-employed as a personal trainer (since 2019).
The central dispute concerned the quantum of the weekly IRB. Certas was paying $337.82 per week, calculated using a combination of the applicant's employment and self-employment income over the 52 weeks before the accident. The applicant claimed he was entitled to $371.28 per week, based solely on his employment income for the four weeks prior to the accident.
The case turned on section 4(2) of the Schedule. Section 4(2)1 allows a person "who was not a self-employed person at any time during the four weeks before the accident" to choose between using four weeks' or 52 weeks' gross employment income. Section 4(2)2 provides that, for a person who was self-employed at any time during the four weeks before the accident, gross annual employment income is based on income for the 52 weeks before the accident. Section 4(2)3 permits, in certain circumstances, use of the last fiscal year of the business.
Adjudicator Rachel Levitsky accepted that the applicant was self-employed during the four weeks prior to the accident and found that self-employed individuals are specifically excluded from the four-week calculation in section 4(2)1. She concluded that his gross annual employment income could not be calculated using the four-week method, and held that the applicant had not proven entitlement to an IRB above the $337.82 per week already being paid.
The applicant relied on decisions including V.H. v. Aviva Insurance Company of Canada, K.D. v. Aviva Insurance Company, Eid v. Allstate Insurance Company of Canada, Arooj v. TD General Insurance Company, and A.M. v. The Dominion of Canada General Insurance Company. The Tribunal found these cases did not assist, noting they addressed different income calculation provisions or involved applicants who were not self-employed during the four weeks prior to the accident.
On interest, the applicant argued the first IRB payment was made on March 12, 2025, with no interest. The respondent submitted that 1% compound interest on prior IRBs, totalling $411.40 for November 10, 2024, to August 5, 2025, was forwarded on August 5, 2025. The Tribunal found the applicant had not proven any further interest was owing.
The key adverse finding for Certas arose under section 10 of Ontario Regulation 664, which allows an award of up to 50% of total benefits payable where an insurer unreasonably withholds or delays payment. The Tribunal accepted that financial documentation, including a 2023 T1 General Income Tax Return, a 2023 T2125 Statement of Business or Personal Activities, a Notice of Assessment, a list of slips for 2023, paystubs, and bank statements, was provided with an accounting report. The Tribunal found Certas had not adequately explained why it could not calculate the benefit from this material before March 12, 2025, and noted the applicant was left without IRB payments for several months.
The Tribunal held that this delay, without a compelling explanation, was unreasonable and warranted a special award. It ordered a 10% award on the amount paid by Certas for IRBs owing on March 12, 2025, plus interest in accordance with Regulation 664.
