The Nonearner Benefit

Most common questions and their answers

1- What is the nonearner benefit (or “NEB”)?

The nonearner benefit provides financial support to the insured if he/she was not employed or was retired or was a full-time student or recent (elementary, high school, university, college) graduate at the time of the accident.

2 Who pays for the nonearner benefit?

Your insurance company

3- What is the legal test for entitlement to the nonearner benefit?

The insured person must satisfy one of the following conditions:

1. He/she suffers “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident” and does not qualify for an income replacement benefit; or
2. He/she suffers “a complete inability to carry on a normal life as a result of and within 104 weeks after the accident” and was either enrolled in elementary, secondary or post-secondary education at the time of the accident or completed his/her education less than a year before the accident and was neither employed nor a self-employed person after completing his/her education and before the accident in a capacity that reflected his/her education and training.[1]

The phrase “complete inability” is not defined in the SABS. The phrase has, however, been clarified in case law as meaning that the injury must continuously prevent the insured person from engaging in substantially (not completely) all activities in which he/she was ordinarily engaged before the accident. The court will consider the following factors:

• “… the starting point for the analysis … will be to compare the claimant’s activities and life circumstances before the accident to his or her activities and life circumstances after the accident … there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant’s pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant’s post-accident condition”.[2]
• “Consideration of a claimant’s activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant’s life in the time frame immediately preceding the accident. It involves an assessment of the appellant’s activities … and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of each case”.[3]
• “… greater weight may be assigned to those activities which the claimant identifies as being important to him/her pre-accident life”.[4]
• ‘The phrase “engaging in” should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be “engaging in” an activity … Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly “engaging in” the activity …”.[5]
• “In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities”.[6]

4- What evidence can I bring forward to show that I meet the legal test for the NEB?

• Keep a diary/journal in which you record how your injury or injuries from the accident are affecting your daily life – such as sleeping habits, difficulty sleeping, mood and social life (for example, withdrawing or socializing less);
• It is better to keep a journal contemporaneous with the events you are recording, rather than writing it based on remembering what happened a long time ago, because a contemporaneous record is more reliable; and
• If your injury is adversely affecting your activities of daily life, regularly visit your doctor and report these effects on your life – the doctor’s clinical notes can then be brought as evidence that you are unable to carry on a normal life because of your accident injuries.

5- How do I advance a claim for the nonearner benefit?

After the insured notifies the insurer of his/her intention to apply for accident benefits, the insurer will provide the insured with a blank OCF-1 (“Application for Accident Benefits”). This must be completed and submitted within 30 days of receipt. The insured must also complete and submit with the OCF-1 an OCF-3 (“Disability Certificate”) (insured completes Parts 1-5; healthcare practitioner completes Parts 6-10).[7] The insurer will provide the insured with an OCF-10 (“Election of Income Replacement, Non-Earner or Caregiver Benefit Form”) which must be completed and submitted within 30 days of receipt.[8]

Note that this election is final[9] with one exception. If the insured is determined to have had a catastrophic injury as a result of the accident, he/she can reelect to receive the caregiver benefit within a 30-day period.[10]

6- When must the insurer pay the nonearner benefit?

If the insurer agrees with your claim, payment will begin within 10 days of receipt of the requisite forms and continue at least every two weeks thereafter.[11]

The insurer is not required to pay the NEB for the first four weeks after the onset of the complete inability to carry on a normal life.[12]

7- How much is the nonearner benefit?

The amount of the nonearner benefit is $185 for each week during the period that the insured person suffers from a complete inability to carry on a normal life, less the total of all other income replacement assistance, if any, for the same week.[13]

8- What is the duration of the nonearner benefit?

The insurer is not required to pay the NEB for more than 104 weeks after the accident.[14]

[1] O. Reg. 34/10 (“SABS”), made under the Insurance Act, s. 12(1).

[2] Heath v. Economical Insurance Company, 2009 ONCA 391 (CanLII), para. 50.

[3] Ibid, para. 50.

[4] Ibid, para. 50.

[5] Ibid, para. 50.

[6] Ibid, para. 50.

[7] SABS, s. 32(5).

[8] Ibid, s. 35(1).

[9] Ibid, s. 35(3).

[10] Ibid, s. 35(2).

[11] Ibid, s. 36(4) and (9).

[12] Ibid, s. 12(3)(a).

[13] Ibid, s. 12(2).

[14] Ibid, s. 12(3)(c).