Category: WSIB

Calderon v Allstate Canada (20-013275)

The main issue in this matter was whether the claimant was barred from pursuing accident benefits due to entitlement to WSIB benefits. The adjudicator found that the claimant was statute-barred under section 61 of the SABS, which states that insurers are not required to pay benefits to individuals entitled to workers’ compensation benefits. Despite the claimant’s assertion that she pursued a tort claim, the adjudicator found that the claimant primarily opted out of WSIB benefits to claim accident benefits. The decision was based on factors including the timing of the tort claim and a lack of evidence supporting the viability of the tort claim. The Tribunal was not convinced there was a bona fide intent to commence a tort action. The application was dismissed.

Thiyagarajah v Economical Insurance (21-001866)

The claimant was entitled to WSIB benefits. The issue in dispute at the LAT hearing was whether his election to claim benefits under the SABS was primarily to receive those benefits or to pursue a tort action against the at-fault driver. The insurer argued that the claimant’s election was primarily for claiming benefits, as he did not file a tort claim within the two-year limitation period. However, the Tribunal found that the claimant’s actions immediately following the accident, including submitting documentation for accident benefits and corresponding with the at-fault driver about potential legal action, demonstrated a genuine intention to pursue a tort claim. Despite the insurer’s contention that the election form was invalid, the Tribunal concluded that the applicant’s election was made in good faith and met the requirements of section 61(2) of the SABS. Therefore, the claimant was entitled to claim accident benefits.

Smektala v. TD Insurance Meloche Monnex (20-006086)

The claimant applied for accident benefits following an accident while she was in the course of her employment as a personal support worker. The insurer argued that the claimant was not entitled to claim IRBs because she had elected to receive WSIB. Adjudicator Lake agreed with the insurer, holding that the claimant was not entitled to receive accident benefits because her attempted election to receive accident benefits was not primarily made for the purpose of pursuing a tort claim. Adjudicator Lake wrote that the claimant contacted WSIB immediately after the accident and she filed an election to receive WSIB. The statement of claim the claimant issued two years later did not persuade Adjudicator Lake that the claimant’s primary purpose was to pursue the tort claim. In particular, there was no evidence before the Tribunal regarding the viability of the tort claim, even though the claimant was not at fault for the accident. Adjudicator Lake indicated that an affidavit from counsel was likely necessary to persuade the Tribunal that there was merit to the tort claim and that the claimant’s true intention in electing accident benefits was to pursue the tort claim.

Marsh v. Allstate Insurance Company of Canada (20-002936)

The claimant sought removal from the MIG and entitlement to various treatment plans. The insurer argued that the claimant was barred from claiming accident benefits due to section 61 of the SABS. The claimant was employed as a personal support worker at the time of the accident, and was driving from one client to another client when the accident occurred. The claimant filed a Form 7 with the WSIB stating that she intended on making a claim through her auto insurance. The claimant submitted an OCF1 to the insurer, and did not complete a WSIB election form. Counsel for the claimant wrote to WSIB six months after the accident stating that she intended on suing the at-fault driver. A statement of claim was issued five months after that. The insurer argued that the claimant was claiming accident benefits without the primary intention of seeking damages from the third party. Adjudicator Hines rejected the insurer’s arguments, and found that the claimant did intend on pursuing a court action against the third party, and the insurer could not show that the tort claim was frivolous or invalid. Adjudicator Hines did not find the timing of the claimant’s statement of claim issuance to be suspect, as it was commenced within one year of the accident. As to the benefits in dispute, Adjudicator Hines concluded that the claimant suffered a predominantly minor injury, and dismissed the claimed medical benefits.

Parameswaralingam v. Echelon General Insurance Company (19-005907)

The claimant applied to the LAT disputing entitlement to IRBs and a special award. The insurer argued that the claimant was barred from claiming accident benefits based on section 61. The claimant conceded that he was working at the time of the accident, but argued that he was not entitled to benefits from WSIB and argued that the insurer had not properly investigated the issue prior to the LAT hearing. Adjudicator Lake agreed with the claimant that the WSIB issues was not properly before her, as the section 61 defence had not been raised in any earlier Case Conference. Regarding entitlement to IRBs, Adjudicator Lake found that the OCF3 was only properly submitted in April 2019. An earlier version had been faxed to an incorrect fax number rather than the number given in accordance with section 64(21). The insurer’s denial in April 2019 was not clear as it said that the claimant both qualified and did not qualify for IRBs. Only in February 2020 did the insurer provide a proper section 36 notice. Adjudicator Lake ordered the insurer to pay IRBs for the period April 2019 to February 2020. However, the claimant failed to provide sufficient information for the Tribunal to calculate the IRBs (no income tax returns for the 52 weeks prior to the accident or post-accident were provided), so no amounts were payable. The claim for a special award was also dismissed.

S.H. and H.S. v. Northbridge Personal Insurance Corporation (2018 ONSC 1801)

The insurer sought judicial review of the Tribunal’s decision in which the two claimants were permitted to opt out of WSIB and seek accident benefits. The Court upheld the Tribunal’s decision. The Court held that the standard of review is reasonableness, and that an appeal could only be made on a point of law. The Court agreed with the Tribunal’s decision that section 61 of the SABS only required that the claimant’s election to pursue an action was in good faith at the time of the accident – it did not import a retroactive impact following the dismissal of the court action. Therefore, after the claimants’ tort claim was dismissed, the insurer could not subsequently deny accident benefits. It is notable that reconsideration was not sought by the insurer prior to the judicial review.

H.S. v. Northbridge Personal Insurance Company (16-001133)

The claimant was involved in an accident while in the course of employment driving a tractor trailer. He opted out of the WSIB regime to join a class action claim against the Government of Newfoundland for failing to ensure its highways were free of wildlife (including moose). He received accident benefits from the insurer while the class action proceeded. The class action was ultimately dismissed following a trial and appeal. The insurer sought an order that the claimant was no longer entitled to accident benefits and had to pursue WSIB. Vice Chair Flude rejected the insurer’s argument and held that section 61 of the SABS only required that the claimant’s election to pursue an action was in good faith at the time of the accident – it did not import a retroactive impact following the dismissal of the court action.

S.H. v. Northbridge Personal Insurance Company (16-000915)

The claimant was involved in an accident while in the course of employment driving a tractor trailer. He opted out of the WSIB regime to join a class action claim against the Government of Newfoundland for failing to ensure its highways were free of wildlife (including moose). He received accident benefits from the insurer while the class action proceeded. The class action was ultimately dismissed following a trial and appeal. The insurer sought an order that the claimant was no longer entitled to accident benefits and had to pursue WSIB. Vice Chair Flude rejected the insurer’s argument and held that section 61 of the SABS only required that the claimant’s election to pursue an action was in good faith at the time of the accident – it did not import a retroactive impact following the dismissal of the court action.

I.T. v. The Personal Insurance Company (16-002364)

The claimant was involved in an accident while in the course of her employment as a Registered Practical Nurse. She was eligible for, applied for, and received WSIB. She subsequently elected to pursue a tort action and accident benefits. The respondent denied the claimant’s accident benefit claim pursuant to section 61 of the SABs, based on its belief that her action was brought primarily for the purpose of claiming accident benefits. The claimant contended that the primary purpose of her election was to pursue a tort action, not to claim accident benefits. Adjudicator Shapiro concluded that the claimant’s election was equally made to pursue a tort claim and accident benefits, and thus, not primarily for claiming accident benefits. The claimant was not precluded from proceeding with her claims for accident benefits.

Applicant v. Northbridge Personal Insurance Company (16-001066)

The claimant was injured in an accident. The insurer had previously sought and received a declaration from WSIAT that under section 31 of the WSIA the claimant was barred from seeking accident benefits. WSIAT indicated that the claimant only had a claim against its employer, but could not make a declaration against accident benefits due to lack of jurisdiction. The claimant applied to the LAT for accident benefits and the Tribunal allowed the claim to go forward. However, on reconsideration, Executive Chair Lamoureux determined that the claimant was barred from bringing the claim forward. The intention of the claimant to elect by launching an action was considered irrelevant, as WSIAT made a clear determination that no election was available to the claimant.