+1 (647) 849-4818 sharma@vsharmalaw.ca

In 2019, there were over 1,000,000 full-time students attending university in Canada.

Dedicating most of their time to their studies, many of these students cannot work and, therefore, fall under the legal category of non-earners. Along with retirees, people on disability benefits, and the unemployed, non-earning Ontarians may receive some benefits when they’re involved in a car accident.

If you or someone close to you is a non-earner who has been involved in a car accident, you should understand what you may be entitled to under the Statutory Accident Benefits Schedule (SABS). While determining whether you’re considered a non-earner might be relatively straightforward, qualifying for non-earner benefits is far more complicated.

What Are Non-Earner Benefits?

SABS are benefits available to all drivers in Canada, regardless of who is at fault in an accident.

If you’re earning an income at the time of your accident, you may be entitled to income replacement benefits. But for those who don’t qualify for income replacement benefits, non-earner benefits may be available.

Non-earner benefits are a form of weekly compensation outlined in Section 12(1) of the SABS. The SABS defines non-earners as:

  • A person who suffers a complete inability to carry on a normal life as a result of and within 104 weeks after an accident and who does not qualify for income replacement benefits
  • A person who suffers a complete inability to carry on a normal life as a result of and within 104 weeks after an accident and was enrolled in elementary, secondary, or post-secondary education at the time of the accident and on a full-time basis

This type of accident benefit is typically made available for those who have not worked in the 26-52 weeks prior to the accident. While it specifically mentions full-time students and recent graduates, people who are on another form of disability benefits, are unemployed, or who are retired, may also qualify.

Qualifying for Non-Earner Benefits & Complete Inability

The most important (and complicated) matter surrounding qualification for non-earner benefits is the concept of “complete inability”.

Section 3(7)(a) of the SABS defines complete inability as follows:

  • a person suffers a complete inability to carry on a normal life as a result of an accident if, as a result of the accident, the person sustains an impairment that continuously prevents the person from engaging in substantially all of the activities in which the person ordinarily engaged before the accident

In essence, qualifying for non-earner benefits involves a complete inability to carry on a normal life as a result of the accident. In practice, this legal test is far more complex.

Complete Inability in Practice

Your access to non-earner benefits hinges on proving complete inability to carry on a normal life. It’s not uncommon for insurers to try and deny non-earner benefits based on this caveat.

To be sure, reading that definition and interpreting it literally would leave one feeling as though non-earner benefits are only available for victims of extreme injury. In practice, this is not the case.

As a result of the 2009 case Heath v. Economical Mutual Insurance Company, the Ontario Court of Appeal clarified the components of the legal test used to determine if an individual meets the definition of complete inability to carry on a normal life.

The accepted interpretation of complete inability after this case is: sustaining an injury or impairment that continuously prevents one from engaging in substantially the activities that one normally performed prior to the car accident. The legal test for meeting that criteria involves several factors:

  • The courts will compare the activities and life circumstances of the claimant before and after the accident. The assessment of these items should include a reasonable period of time prior to the accident having occurred.
  • A claimant’s activity must be viewed as a whole. Going through the motions of an activity is not considered being engaged in that activity. In the same way, the quality of performance in post-accident activity will be considered by the courts.
  • In determining the “substantially all” portion of the complete inability criteria, the courts should look at and consider all of the pre-accident activities that the claimant ordinarily engaged in. The courts are obliged to give more weight to activities that were identified as important prior to the accident.
  • Claimants must demonstrate how the injuries or impairments caused by the accident have continuously prevented them from engaging in substantially all of their activities. The key in establishing this piece lays in “continuously prevented”, which is understood as “disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted.”

In some cases, a detailed comparison of the before and after period isn’t necessary. This is determined by the post-accident condition of the claimant.

Payments

In general, the payment for non-earner benefits is up to $185 per week.  If an accident occurred prior to June 1, 2016, non-earner benefits were subject to a six month waiting period.

Following that period, claimants received $185 per week for the first two years after the accident. After the first two years, if the injured victim was a student, the payment increased to $320 per week, which the student could potentially receive for life.

Accidents that occurred on or after June 1, 2016 are subject to a four-week waiting period. Not only has the waiting period been reduced, but so too has the payment.

These claimants, with certain exceptions, are entitled to $185 per week for a maximum of two years.  If an accident victim is deemed catastrophically impaired, the non-earner benefit is only payable for life if the accident occurred prior to June 1, 2016. If the claimant’s accident was after to June 1, 2016, whether they are deemed catastrophic or not, this benefit is only available for two years.

Do You Pass the Complete Inability Test for Non-Earner Benefits?

If you were involved in an accident and you don’t qualify for income replacement benefits, you might be able to claim non-earner benefits. Typically reserved for students, the unemployed, and retirees, these benefits are intended to compensate you should you not be capable of carrying out a normal life following an accident.

Qualifying for non-earner benefits involves complete inability, and the criteria for determining complete inability are complicated. It involves establishing that your injury or impairment renders you incapable of engaging substantially in pre-accident activities as well as a number of other factors.

As complex as determining complete inability is, you should seek the help of an experienced and knowledgeable professional. At Sharma Law, we can help you figure out whether you qualify for these benefits and what information you’ll need to prove your situation. Contact us today to for a free consultation.