Canada: Seasonal Worker Did Not Qualify As "Employed" For Purposes Of Loss Of Income Payments Under Automobile Insurance Policy

In Temple v. Aviva Insurance Company of Canada,1 the Supreme Court of Newfoundland and Labrador determined that the plaintiff, a seasonal worker, was not employed at the date of the motor vehicle accident. As a result, he did not qualify for loss of income payments under Section B of Newfoundland and Labrador’s standard automobile insurance policy. In its decision, the court clarified the test for determining when a seasonal worker meets the policy’s condition of being employed.


The plaintiff, Paul Temple, was involved in an accident while a passenger in a vehicle insured by the Defendant, Aviva Insurance Company of Canada. The parties agreed that Temple qualified as an "insured person" under Section B (Accident Benefits) of the automobile insurance policy, and Aviva had already paid medical rehabilitation benefits. However, Aviva denied loss of income benefits, and applied for summary trial seeking a declaration that Temple, a seasonal fisher, was not "employed at the date of the accident", as required by the policy.


The evidence established that Temple had worked as a seasonal fisher for about twelve years. He had worked for a number of boat owners, including his uncle from 2000 to 2007, and again in 2010.

The accident occurred during the off-season in April 2012. Temple had not yet committed to any particular employer or employment. He had recently upgraded his qualifications and was seeking work as a captain on a fishing boat. There was no such opening on his uncle’s boat. Nevertheless, Temple testified that had he failed to secure a captain’s position, he could have returned to work for his uncle in a less lucrative capacity.

The Decision

The standard automobile insurance policy provides for loss of income benefits during the period that the insured person, because of the accident, suffers a substantial inability to perform the essential duties of his or her occupation or employment. To qualify for these benefits, the insured person must have been “employed at the date of the accident”.

The policy also provides that a person “shall be deemed to be employed” in two specific circumstances. According to the court, Temple did not meet either of the deeming provisions. First, Temple was not “actively engaged in an occupation or employment for wages or profit at the date of the accident”.2 To the contrary, Temple “confirmed that he was looking for work”.3 Second, Temple conceded that, while he had worked during the twelve months preceding the accident, his employment was for less than the required six-month period.

Relying on Fougere v. Wawanesa Insurance Co.,4 Temple argued that the policy “should be interpreted to provide coverage for seasonal workers who demonstrate that, at the date of the accident, there was every likelihood that they would have again worked in the seasonal work in which they have been employed in the past”.5

Temple also relied on Gaudet v. Co-operators Insurance Co of Canada,6 where the plaintiff was not actively working at the date of the accident, but was found to be employed and entitled to loss of income benefits having fished with his uncle in the prior year as well as in the year of the accident. Aviva, however, argued that the Gaudet case was distinguishable because the plaintiff’s brother had registered his second fishing boat and licence in the plaintiff’s name, and the licences remained in the plaintiff’s name for a full year after the accident. Consequently, the evidence established a continuing course of employment between the plaintiff and his brother, with the plaintiff on a temporary lay-off at the time of the accident. In these circumstances, the court was able to conclude that but for the accident, the plaintiff would have resumed employment with his brother.

In response to Temple's argument, Aviva relied on two appellate decisions, Logan v. Pafco Insurance Co.7 and Sansone v. State Farm Mutual Automobile Insurance Co.8 While neither case involved seasonal workers, they did “assist in determining how a court should interpret and apply the condition of employment-related eligibility for loss of income under Section B of a standard automobile insurance policy”.9 According to Aviva, these cases supported its position that, on a proper interpretation of the policy, Temple had to present evidence of “an existing employment relationship or contract at the date of the accident”.10 Otherwise, Aviva argued that the court “would be rewriting the mandated policy language to provide that all seasonal workers are deemed to be employed year-round”.11

Following its review of the cases relied upon, the court accepted the statement from Sansone, to the effect that the policy requires “an existing contract of employment or actual employment”,12 and described the test as follows:

... the Policy condition requiring that an insured be employed at the date of the accident must be interpreted such that there must be an existing contract of employment or actual employment at the date of the accident. It is not necessary that such a contract of employment be in writing but the evidence must establish that the plaintiff had an ongoing employment relationship with an employer such that he or she was either actively employed, on call, or on temporary lay-off with a right of recall or with a definite commitment for future work. As such, in certain circumstances, seasonal workers not actively working at the date of the accident may be considered employed at the date of the accident. However, in other circumstances, seasonal workers may not qualify.13

In the end, whether the test is met will turn on the facts of each individual case. Here, Temple had no ongoing employment relationship at the date of the accident, no definite employment arrangement for the future, and no commitment from or right to work with his uncle. Moreover, since he had not worked for his uncle during the prior fishing season, he was in no position to argue that he was merely on “temporary lay-off or on call”.14 As a result, Temple failed to meet the condition of being employed at the date of the accident and he could not claim loss of income benefits under the automobile insurance policy.

Lessons for Insurers

Although a broad and liberal approach is usually applied when interpreting accident benefits coverage under automobile insurance policies, there are limits to this approach. Any interpretation should be consistent with the words of the policy.

Loss of income payments are conditional on the insured person having been employed at the date of the accident. This determination may be particularly challenging in the case of seasonal workers and each case will depend on its own facts, but at the end of the day, the condition remains.

This case suggests that, at a minimum, seasonal workers will need to establish an ongoing employment relationship with an employer such that they were either actively employed, on call, or on a temporary lay-off with a right of recall or with a definite commitment for future work. A mere likelihood of working seasonally again, as they had in the past, is insufficient to meet the condition of the policy for the purposes of obtaining loss of income payments.


1 Temple v. Aviva Insurance Company of Canada, 2019 NLSC 80. Cox & Palmer represented Aviva Insurance Company of Canada.

2 Temple v. Aviva, para. 7.

3 Temple v. Aviva, para. 7.

4 Fougere v. Wawanesa Insurance Co., 2002 NBQB 364.

5 Temple v. Aviva, para. 14.

6 Gaudet v. Co-operators Insurance Co of Canada (1993), 111 Nfld & PEIR 1 (PEISC TD).

7 Logan v. Pafco Insurance Co., 2000 NSCA 58.

8 Sansone v. State Farm Mutual Automobile Insurance Co. (1979), 25 OR (2d) 108 (ONCA).

9 Temple v. Aviva, para. 27.

10 Temple v. Aviva, para. 33.

11 Temple v. Aviva, para. 33.

12 Temple v. Aviva, para. 32.

13 Temple v. Aviva, para. 41.

14 Temple v. Aviva, para. 42.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions