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.
