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Reconsideration dismissed; election to pursue tort and accident benefits equally does not bar SABS claim.
The respondent insurer requested reconsideration of a Licence Appeal Tribunal decision finding that the applicant was not precluded by s. 61 of the Statutory Accident Benefits Schedule from claiming accident benefits.
The applicant had been injured in a motor vehicle accident while working and initially claimed WSIB benefits before electing to pursue a tort action and accident benefits.
The insurer argued that an election must be made primarily for the purpose of a tort claim, not equally for tort and accident benefits.
The Associate Chair dismissed the request for reconsideration, holding that s. 61(2) permits an election made for the equal purposes of pursuing a tort action and claiming accident benefits, provided the tort action is brought in good faith.
The Associate Chair also found no error in the Tribunal's assessment of the tort claim's viability or its weighing of subjective and objective factors.
The court granted the respondent's motion to attempt to requalify an expert, file a late report, and amend pleadings.
The respondent brought a motion seeking various grounds of relief pertaining to a protracted trial, including recalling herself to testify, filing a late expert report, and revisiting prior rulings regarding another expert's disqualification and amendment of particulars of fraud.
The court granted all substantive requests, allowing the respondent to attempt to requalify her expert, admit a new expert's report, amend her particulars of fraud, and provide further testimony.
The court applied the Supreme Court of Canada's framework from *White Burgess Langille Inman* regarding expert witness independence and impartiality, finding the previous judge applied an overly stringent test.
Despite the respondent's substantial success on the motion, costs were denied due to her prior procedural failures.
