COVID-19 Update: How We Are Serving and Protecting Our Clients

Published on:

CERB Benefits and your Personal Injury Case

It’s really hard to say “no” to free money. This is particularly true when times are tough.

The COVID Pandemic has caused many industries to crumble; and in turn, many people to go months and months without pay.

Restaurants, tourism, retail, hospitality, events, personal care and personal service industries all come to mind. Many people have adapted and pivoted to earn a living. But many others have not and continue to experience hard times.

The Canada Emergency Response Benefit (CERB) was designed to provide financial support to employed and self-employed Canadians who were directly affected by COVID-19.

The means that you would have needed to be gainfully employed to qualify for the CERB.

For some accident victims and disability claimants, qualifying and claiming the CERB presents a contradiction.

If a Plaintiff is pursuing a personal injury case, particularly in the automobile context; or claiming disability; in essence they are attesting that their ability to earn an income has been compromised a result of a serious injury or disability.

What these claimants are saying is that “but for” their injury or disability, they would be working.

The CERB does not take into consideration an injury or disability. The CERB states that “but for” COVID, the claimant would be working.

In order to qualify for the CERB, the claimant must attest that they:

  • stopped working because of reasons related to COVID-19or were eligible for Employment Insurance regular or sickness benefits or have exhausted their Employment Insurance regular benefits or Employment Insurance fishing benefits between December 29, 2019 and October 3, 2020
  • they had employment and/or self-employment income of at least $5,000 in 2019 or in the 12 months prior to the date of their application, and
  • they did not quit their job voluntarily

The two key statements there as they relate to personal injury and disability claims is that the claimant stopped working because of reasons related to COVID-19 & the claimant did NOT quit their job voluntarily.

An accident victim or disability claimant who stopped working because of their injury or disability is NOT stopping to work due to reasons related to COVID-19. They are instead leaving their job due to an injury or disability.

An accident victim who stops working or quits their job due to an injury or disability is leaving that job voluntarily. It’s their decision to stop or quit, even if it’s totally necessary due to the injury or disability. The alternative is getting reprimanded or fired due to non-attendance. But getting reprimanded or fired is an involuntary action by the employee vs. leaving or quiting the job which is a voluntary (but necessary) act by the employee.linkedin-2-300x300

Here’s where it can get dicey for an accident victim or disability claimant:

On one hand the Plaintiff is alleging that they can’t work due to their injury or disability.

But on the other hand they are receiving the CERB and by doing so they are attesting that they are ready, willing and able to work; and their inability to work has nothing to do with an injury or disability. Rather, it has to do with their job being shut down due to COVID-19.

A contradiction to say the least. Kinda like sucking and blowing at the same time?

How do you think an insurance defence lawyer would view a Plaintiff who simultaneously took the CERB Benefit while making a disability claim? Probably not in a very good light. The insurance company lawyer will do their best to paint the Plaintiff as a liar, cheater and someone who has defrauded the system.

How do you think a jury would view a Plaintiff on the stand when cross examined on the reasons why s/he was taking the CERB while at the same time bringing an action claiming serious injury or disability over the same period they received the CERB? The Jury would likely be infuriated by the Plaintiff unless there is some good explanation. But even with a good explanation, the damage of painting out the Plaintiff to be a person taking advantage of the system would have already been done.

Fundamentally, the CERB does not exist to compensate accident victims or disability claimants. It’s a benefit designed to compensate people who are ready, willing and able to work for being unable to work due to COVID-19 and not an unrelated injury or disability.

The same line of thinking also applies to the application of the Canada Emergency Rent Subsidy which exists for business owners to pay the rent and other business related expenses. This is a bit trickier because many sophisticated business people incorporate their businesses. That means that the injured accident victim who might be the president or the owner of the business; while the incorporated business is its own separate entity. Therefore the injuries to the individual are separate and apart from the losses of the business. If this happens, the injured accident victim would then have a hard time turning around and attributing his/her business losses to the subject accident or disability. Rather, those business losses would need to be in part attributed due to COVID-19 related shutdowns. It would also open up the business’ books for the purposes of the litigation which can get messy and expensive. A Plaintiff would need to hire an accountant or forensic accountant to detail which losses are attributable to what.

Insurance defence lawyers and insurance companies love attacking Plaintiffs on issues of deception, lying an perceived fraud. It gives actors which are normally on the defense, an opportunity to attack. The best defense is a good offense. These benefits provide insurers and their lawyers a good opportunity to attack a Plaintiff’s credibility.

In my experience the vast majority of Plaintiffs simply don’t appreciate the consequences of their actions. It’s not like they are criminal masterminds attempting to defraud the system. They apply for a program without reading the fine print.

Unfortunately for them, the law is all about the fine print. And this is where some innocent accident victims get painted out to be liars, fraudsters or scammers which can completely devastate what’s otherwise a meritorious case. This is most unfortunate


Contact Information