Neutral Citation: 2007 ONFSCDRS 231 FSCO A06-002210

Between: Robeckson Antony, Applicant and Continental Casualty Company, Insurer

Decision on a Preliminary Issue

Before: William J. Renahan Heard: Written submissions were received at the offices of the Financial Services Commission of Ontario in Toronto up to July 17, 2007.

Appearances: Adam Ezer, student-at-law, for Mr. Antony Kiran Sah, Barrister and Solicitor, for Continental Casualty Company

The Applicant, Robeckson Antony, was injured in a motor vehicle accident on July 29, 2005. He applied for statutory accident benefits from Continental Casualty Company, payable under the Schedule.¹ Continental claimed that Mr. Antony was precluded from receiving benefits by operation of section 59 of the Schedule. The parties were unable to resolve their disputes through mediation, and Mr. Antony applied for arbitration at the Financial Services Commission of Ontario under the Insurance Act, R.S.O. 1990, c.I.8, as amended.

Issue:

In his reporting letter following the pre-hearing of this matter, the arbitrator defined the preliminary issue as follows:

Is Mr. Antony precluded from receiving the claimed accident benefits by operation of section 59 of the Schedule, because he is entitled to receive WSIB benefits and elected to bring an action, primarily for the purpose [of] claiming accident benefits?

Result:

Mr. Antony is not precluded from receiving benefits by operation of section 59 of the Schedule.

Evidence and Analysis:

Section 59(1) of the Schedule provides:

(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.

The hearing proceeded by written submissions. Most of the submissions dealt with Mr. Antony’s election not to receive benefits from the Workplace Safety and Insurance Board and an assignment of any such benefits to Continental. These facts may be relevant to the exception to subsection 59(1) which is contained in subsection 59(2);

(2) Subsection (1) does not apply in respect of an insured person who elects to bring an action referred to in section 10 of the Workers’ Compensation Act² so long as the election is not made primarily for the purpose of claiming benefits under this Regulation.

Before I can determine whether the exception in subsection 59(2) applies, I must first determine whether subsection 59(1) applies. That is, whether Mr. Antony “as a result of an accident, is entitled to receive benefits under any workers’ compensation law or plan.”

The Workplace Safety and Insurance Board has exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act, except where the Act provides otherwise.³

I have no jurisdiction to determine whether Mr. Antony is entitled to benefits from the Workplace Safety and Insurance Board. I can only determine whether the Board has made such a determination and I heard no evidence on this issue.

Accordingly, subsection 59(1) does not apply and Mr. Antony is not precluded from receiving benefits by operation of subsection 59(1) of the Schedule.

Since subsection 59(1) does not apply, the evidence with respect to whether the exception in subsection 59(2) applies is not relevant.

This does not leave Continental without a remedy if the Board might determine that Mr. Antony is entitled to WSIB benefits.

Section 31 of the Workplace Safety and Insurance Act, 1997, provides:

(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;

(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).

Continental referred me to two cases which are not relevant because they did not deal with whether the insured was entitled to workers’ compensation. In Falahi v. ING Halifax Insurance Co. (FSCO A-01-000103, February 5, 2002) the arbitrator found that the real issue in dispute was whether the insured was entitled to receive benefits under any workers’ compensation law or plan. Mr. Falahi said he was not entitled and the insurer said he was. The arbitrator did not determine the issue because the parties agreed that this was not the issue. In Mahadeo v. Aviva Canada Inc.(FSCO A04-001435, April 27, 2006) the parties agreed that Mr. Mahadeo was entitled to benefits under the Workplace Safety and Insurance Act, 1997 as a result of the accident.

Expenses:

The parties did not make submissions on entitlement to expenses. The issue is deferred to the hearing arbitrator.

November 23, 2007

William Renahan Arbitrator

Arbitration Order

Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is ordered that:

Mr. Antony is not precluded from receiving benefits by operation of section 59 of the Schedule.
The issue of entitlement to expenses of this application is deferred to the hearing arbitrator.