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.
