FINANCIAL SERVICES COMMISSION OF ONTARIO
Neutral Citation: 2005 ONFSCDRS 28
FSCO A04-001585
BETWEEN:
SASE NARINE BASDEO
Applicant
and
CITADEL GENERAL ASSURANCE COMPANY
Insurer
DECISION ON A PRELIMINARY ISSUE
Before:
David Muir
Heard:
January 24 and 25, 2005, at the offices of the Financial Services Commission of Ontario in Toronto.
Written submissions were received on January 6, and January 18, 2005.
Appearances:
Patrick DaSilva for Mr. Basdeo
Claude Blouin for Citadel General Assurance Company
Issues:
The Applicant, Sase Narine Basdeo, was injured in a motor vehicle accident on October 7, 2003. He has applied for statutory accident benefits from Citadel General Assurance Company ("The Citadel"), payable under the Schedule.1
The parties were unable to resolve their disputes through mediation, and Mr. Basdeo applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.
In addition to the application for statutory accident benefits, Mr. Basdeo has also claimed benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, Chapt. 16. The issue for determination here is from which of these two insurance schemes Mr. Basdeo is entitled to seek benefits.
The issues for determination are set out more precisely below:
Is Mr. Basdeo entitled to receive benefits under a workers' compensation plan and therefore The Citadel is not required to pay benefits as provided by section 59(1) of the Schedule?
If the answer to Question #1 is yes, does subsection 59(2) of the Schedule apply to these circumstances?
Is The Citadel required to pay benefits pending the resolution of the dispute respecting the application of section 59(1) to Mr. Basdeo as provided for in section 59(5) of the Schedule?
Result:
Mr. Basdeo is not entitled to receive benefits under a workers' compensation plan.
Accordingly, section 59(2) does not apply to these circumstances.
The Citadel is required to pay benefits in accordance with section 59(5) of the Schedule, pending the resolution of the dispute respecting Mr. Basdeo's entitlement to workers' compensation benefits.
The provisions of the Schedule at issue here are as follows:
- (1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan.
(2) Subsection (1) does not apply in respect of an insured person who elects to bring an action referred to in section 30 of the Workplace Safety and Insurance Act, 1997 so long as the election is not made primarily for the purpose of claiming benefits under this Regulation. O. Reg. 403/96, s. 59(2); O. Reg. 281/03, s. 30 (1).
(3) If a person is entitled to receive benefits under this Regulation as a result of an election made under section 30 of the Workplace Safety and Insurance Act, 1997, no income replacement, caregiver or non-earner benefit is payable to the person in respect of any period of time before the person makes the election. O. Reg. 403/96, s. 59 (3); O. Reg. 462/