In 2023, the Divisional Court released a decision stating that the post-104 IRB test does not include employment in a competitive, real-world setting, nor does it include any test that suitable employment should be comparable in terms of status and wages. For a detailed breakdown of the prior decisions and background facts, please see the May 30, 2023 blog of Shalini Thomas.
The Court of Appeal has now weighed in on this issue in the recent decision of Traders General Insurance Company v. Rumball, 2025 ONCA 656 (CanLII).
The Court of Appeal confirmed that the post-104 IRB test is a stringent test and the onus of proof falls to the insured.
The Court further confirmed that the post-104 IRB test in the SABS is clear and unambiguous. However, a contextual approach is required when analysing whether an insured meets that test. This contextual approach requires a decision maker to consider the totality of the evidence and the circumstances of the insured, including the insured's medical status, whether retraining may be required, and, whether the proposed alternative employment is employment in a competitive, real-world setting that is comparable to the insured's former employment in nature, status and reward.
The Court referenced one of its prior decisions, Burtch v. Aviva, and stated that factors including whether suitable alternative jobs are actually available, whether such jobs pay similar remuneration as the insured's prior employment and are of a similar status, and whether to secure the job substantial upgrading or retraining is necessary are relevant. However, it is not mandatory that all of these factors be met for an alternative job to be deemed suitable under the test.
The Court of Appeal clarified that the Divisional Court was technically correct that the post-104 IRB test in the SABS does not explicitly state that suitable employment should be comparable in terms of status and wages. However, the Court of Appeal specifically summarised the post-104 test as follows:
[42] In sum, in determining entitlement to IRBs in the post-104-week period, the decision maker must decide, based on the evidence, if the insured person is completely unable to work in any job or capacity for which they are suited by education, training or experience. This is necessarily a contextual analysis. In order to make this determination, the decision maker must consider all the relevant evidence and factors, including whether any alternative employment is employment in a competitive, real-world setting that is comparable to the insured's former employment in nature, status and reward. These factors are not stand-alone components of the test but inform the evidence-based determination of whether the insured person has suffered a complete inability to engage in employment for which they are reasonably suited by education, training or experience.
The Court ultimately upheld the decision of the LAT Adjudicator, stating that she had reviewed all of the evidence carefully and there was no error in her conclusion that the claimant failed to prove that she met the post-104 IRB test.
This decision confirms the importance of obtaining a complete evidentiary record in disputes involving post-104 IRBs. When an insured is pursuing post-104 IRBs, evidence of their complete work and education history is highly relevant, and an analysis of their ability to work in, or retrain for, various potential occupations by way of a vocational assessment is necessary.
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.
