16-001066 v. Northbridge Personal Insurance Corporation, 2017 CanLII 39671

Safety, Licensing Appeals and

Standards Tribunals Ontario

Licence Appeal Tribunal

Automobile Accident Benefits

Service

Mailing Address: 77 Wellesley St. W.,

Box 250, Toronto ON M7A 1N3

In-Person Service: 20 Dundas St. W.,

Suite 530, Toronto ON M5G 2C2

Tel.: 416-314-4260

1-800-255-2214

TTY: 416-916-0548

1-844-403-5906

Fax: 416-325-1060

1-844-618-2566

Website: www.slasto.gov.on.ca/en/AABS

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Tribunal d'appel en matière de permis

Service d'aide relative aux indemnités d'accident automobile

Adresse postale : 77, rue Wellesley Ouest,

Boîte n^o 250, Toronto ON M7A 1N3

Adresse municipale : 20, rue Dundas Ouest,

Bureau 530, Toronto ON M5G 2C2

Tél. : 416 314-4260

1 800 255-2214

ATS : 416 916-0548

1 844 403-5906

Téléc. : 416 325-1060

1 844 618-2566

Site Web : www.slasto.gov.on.ca/fr/AABS

RECONSIDERATION DECISION

Before: Linda Lamoureux, Executive Chair

Date: June 6, 2017

File: 16-001066/AABS

Case Name: 16-001066 v. Northbridge Personal Insurance Corporation

Written Submissions By:

For the applicant: Michael Bishop (Student-at-Law), Harvey Katz Professional Corporation

For the respondent: Jason Goodman, Laxton Glass LLP

1. This request for reconsideration examines the intersection between the Statutory Accident Benefits Schedule – Effective September 1, 2010¹ (the “Schedule”) and the Workplace Safety and Insurance Act, 1997² (the “WSIA”). More specifically, it asks whether the applicant’s claim for benefits under the Schedule is precluded as a result of a recent decision by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”).

2. In 2012, the applicant, G.P., was injured in an automobile accident while in the course of his employment. He was entitled to claim workers’ compensation benefits under the WSIA. He did not claim them. Instead, he commenced a tort action in connection with the accident, and claimed accident benefits under the Schedule from his insurer, Northbridge Personal Insurance Corporation (“Northbridge”). Northbridge disputed G.P.’s entitlement to accident benefits.

3. The parties’ dispute focuses on s. 61(2) of the Schedule. Generally speaking, that section allows those who are otherwise entitled to workers’ compensation benefits under the WSIA to forgo those benefits and, instead, elect to commence a civil action for damages in relation to employment-related injuries and, in the process, claim accident benefits under the Schedule. G.P. argues that he made this very election. Northbridge argues that G.P. never had any election to make. Why?

4. Before G.P. made this application to the Licence Appeal Tribunal (the “Tribunal”), Northbridge made its own application to the WSIAT. Northbridge asked the WSIAT for a declaration that the WSIA barred G.P. from commencing his tort action. The WSIAT agreed, holding that G.P. was barred from pursuing legal action against those involved in the accident. With this decision in hand, Northbridge denied G.P.’s claim for accident benefits, following which G.P. made this application to the Tribunal. Northbridge argues that, based on the WSIAT’s decision, G.P.’s application is also barred.

5. The question now: what effect does the WSIAT’s determination have on this application? On February 13, 2017, the Tribunal answered this as a preliminary issue, holding that the WSIAT’s decision had no effect on this application. Accordingly, the Tribunal ordered G.P.’s application to proceed to a full hearing. On February 28, 2017, Northbridge requested that I reconsider the Tribunal’s decision.

6. For the reasons that follow, I grant Northbridge’s request, cancel the Tribunal’s decision, and dismiss this application.

The Facts

The accident and G.P.’s tort claim

7. On September 16, 2012, G.P. and Peter Horvath were in a transport truck travelling westbound on a highway near Moose Jaw, Saskatchewan. Horvath drove. G.P. slept in the truck’s berth. Unfortunately, Horvath lost control of the truck. The truck drove into a ditch and rolled. G.P. and Horvath were injured.

8. The following month, G.P. notified Horvath and the truck’s owner, Seven Star Express Line Ltd. (“Seven Star”), of his intention to commence a tort action against them in connection with the accident. G.P. also applied to Northbridge for benefits under the Schedule.

9. G.P.’s claim against Horvath and Seven Star was issued in February 2014. However, on March 17, 2015, G.P. executed a full and final release in connection with the action. By order dated May 15, 2015, the Ontario Superior Court of Justice dismissed the action on the parties’ consent.

10. Based on the record before me, it is unclear what, in the interim, was happening with G.P.’s claim for benefits under the Schedule. Nevertheless, all that really matters is that the final key facts had yet to occur.

The WSIAT decision at issue

11. Eventually, Northbridge made an application under s. 31(1) of the WSIA. That section allows an insurer from whom statutory accident benefits are claimed to apply to the WSIAT for various determinations. One of those determinations concerns a worker’s ability to commence a tort action in connection with an incident arising in the course of his or her employment. Northbridge asked for a declaration that the WSIA had barred G.P.’s action. The WSIAT heard Northbridge’s application on March 1, 2016 and released its decision, No. 561/16 (per Vice Chair J.P. Moore), on April 12, 2016.

12. The WSIAT determined that, indeed, the WSIA barred G.P.’s action against Horvath and Seven Star. The WSIAT’s decision was based on s. 28(1) of the WSIA, which prohibits any employee of a “Schedule 1 employer” – i.e., an employer included in Schedule 1 of O. Reg. 175/98 under the WSIA – from commencing an action in respect of an employment-related injury against any Schedule 1 employer or employee thereof. The WSIAT found that, at the time of the accident, G.P. was a worker in the course of employment for a Schedule 1 employer. It also found that Seven Star was a Schedule 1 employer, and that Horvath was an employee for a Schedule 1 employer. Accordingly, the WSIAT held that “all other parties involved in the accident were protected from lawsuit” by s. 28(1) of the WSIA, and that G.P.’s right to commence an action had, in the language of s. 31(1) of the WSIA, been “taken away”: see para. 5. Further, the WSIAT held that G.P. was entitled to claim workplace safety benefits under the WSIA.

13. As part of its application to the WSIAT, Northbridge also asked for a declaration that G.P. had no right to claim accident benefits under the Schedule. However, as the WSIAT’s decision makes explicit, Northbridge later agreed that the WSIAT lacked the jurisdiction to make such an order.

G.P. makes this application

14. Based on the WSIAT’s decision, Northbridge denied G.P.’s claim for accident benefits under the Schedule. By letter dated April 20, 2016, Northbridge explained that its position was based on the WSIAT’s determination that G.P. was entitled to claim workers’ compensation benefits under the WSIA, and that s. 61 of the Schedule exempts insurers from paying no-fault accident benefits to anyone entitled to receive benefits under any workers’ compensation scheme.

15. Two months later, G.P. made this application to the Tribunal. For the purposes of this reconsideration, I need not discuss the benefits G.P. claims.

The Tribunal’s preliminary decision

16. The Tribunal held a case conference in this matter on September 28, 2016. During the case conference, the parties agreed that the Tribunal should conduct a written hearing to resolve their principle impasse, namely whether the WSIAT’s decision also precludes G.P.’s application.

17. The parties’ positions were the same as they are now. G.P. acknowledged the fact that, generally speaking, s. 61 of the Schedule exempts insurers from paying no-fault accident benefits to anyone entitled to receive benefits under the WSIA. However, he argued that his case falls within the exception created by s. 61(2) of the Schedule since, as that section permits, he elected to bring an action that was not made primarily for the purpose of claiming benefits under the Schedule. Northbridge disagreed. Its position: given the WSIAT’s determination, G.P.’s action was statute-barred and, thus, he never had an election to make.

18. In its decision of February 13, 2017, the Tribunal held that the WSIAT’s decision had no bearing on G.P.’s application. For the most part, the Tribunal based this decision on two main points. The first was the WSIAT’s refusal to declare that G.P. had no right to claim accident benefits under the Schedule, something that the WSIAT observed was within the Tribunal’s exclusive jurisdiction to determine. The second was the Tribunal’s observation that G.P.’s primary purpose in commencing his action – i.e., whether it was made primarily for the purpose of claiming benefits under the Schedule – needed to be decided with the benefit of a complete evidentiary record. For those reasons, the Tribunal ordered that the application proceed to a full hearing.

Northbridge’s request for reconsideration

19. Northbridge now asks that I reconsider the Tribunal’s decision.

Decision

(a) s. 61(1) and (2) of the Schedule

20. In my view, the required analysis begins with s. 61(1) and (2) of the Schedule. Those sections provide as follows:

Workplace Safety and Insurance Act, 1997

61. (1) The insurer is not required to pay benefits described in this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under the Workplace Safety and Insurance Act, 1997 or any other 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 if the election is not made primarily for the purpose of claiming benefits under this Regulation.

21. The architecture of s. 61(1) and (2) is straightforward. Section 61(1) enunciates the general rule that insurers are not required to pay accident benefits under the Schedule to those who are entitled to receive workers’ compensation benefits under the WSIA. Section 61(2) provides a limited exception to that general rule. That exception applies to injured workers who, in essence, elect to seek damages in tort for their injuries, in which case they may also claim benefits under the Schedule provided that their election was not made primarily for the purpose of claiming accident benefits.

22. As mentioned above, G.P. argues that his 2014 action against Horvath and Seven Star followed this very election. His argument is that he elected to commence his action for a bona fide purpose (i.e., not for the purpose of claiming accident benefits), and that this purpose must be evaluated as of the time of his election, not thereafter with the benefit of hindsight or the WSIAT’s decision.

23. While G.P.’s submission is compelling, it places too much emphasis on the purpose underlying his purported election. Critically, it overlooks the nature of the exception that s. 61(2) actually creates. Importantly, s. 61(2) does not reference all actions commenced in respect of workplace injuries. Rather, it specifies that the general rule in s. 61(1) does not apply where an insured person elects to bring “an action referred to in section 30 of the [WSIA].” What type of action is referenced in s. 30 of the WSIA?

(b) [s. 30](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html#sec30_smooth) of the [WSIA](https://www.canlii.org/en/on/laws/stat/so-1997-c-16-sch-a/latest/so-1997-c-16-sch-a.html)

24. Section 30 of the WSIA outlines the general rules concerning an injured worker’s ability to elect not to receive workers’ compensation benefits and, instead, commence an action. It provides, in key part, as follows:

Election, concurrent entitlements

30. (1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease. [emphasis added]

31. In my view, the legislature’s choice of the word entitled is revealing. It makes clear that s. 30 contemplates only those actions that an injured worker has a legal right to commence.

32. This reading is consistent with the WSIA’s broader context and purpose. As always when reading statutes, it is important to recall that the legislature does not speak in vain,³ and that an act’s words must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”⁴ In this case, s. 30 is informed by the WSIA’s overall scheme, in particular the “historic trade-off” under which workers receive no-fault benefits for employment-related injuries in exchange for giving up the right to sue their employers.⁵

33. This “trade-off” is reflected in the WSIA’s various provisions. Specifically, s. 11 provides that, generally speaking, workers’ compensation benefits are available to every worker employed by a Schedule 1 or Schedule 2 employer. In exchange, those workers give up certain rights: s. 26(2) provides that entitlement to workers’ compensation benefits is “in lieu of all rights of action (statutory or otherwise)” that a worker may have against his or her employer for employment-related injuries. For that same reason, s. 28(1) of the WSIA prohibits a worker employed by a Schedule 1 employer from commencing an action concerning employment-related injuries against a Schedule 1 employer or employee thereof.

34. In sum, the WSIA creates a regime under which employees of Schedule 1 employers, like G.P. in this case, are entitled to receive no-fault workers’ compensation benefits for injuries arising in the workplace but, in return, may not sue their employers or colleagues for causing those injuries. With that broader legislative context and purpose in mind, it is obvious, again, that s. 30(1) addresses only those situations in which injured workers are legally permitted to commence an action to redress employment-related injuries.

(c) How the exception in s. 61(2) should be read

29. Thus, the exception provided in s. 61(2) of the Schedule should be read as applying only to those who have elected to commence an action that they are legally entitled to commence. In addition to the reasons outlined above, I find additional support for this interpretation in s. 31(1)(a) of the WSIA.

30. Section 31(1)(a) of the WSIA provides insurers with an important avenue of redress. More explicitly, it allows “an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act” to apply to the WSIAT to determine “whether, because of the [WSIA], the right to commence an action is taken away.” In this case, Northbridge availed itself of this opportunity to secure the WSIAT’s determination that the WSIA barred G.P.’s action. In my view, construing s. 61(2) of the Schedule as applying to any action, as opposed to only those that are legally permitted, would render pointless the remedy available to insurers in s. 31(1)(a) of the WSIA. Faced with a claim for accident benefits from someone who purported to elect to commence an action, an insurer might obtain a determination from the WSIAT that the claimant’s action was statute-barred only to then have to honour the claim – notwithstanding the fact that that the claim is predicated upon an action that should have never been commenced. Section 61(2) of the Schedule should be read in a manner that complements, not frustrates, the WSIA.

(d) Where the Tribunal erred

31. Applying this interpretation of s. 61(2) to the facts at hand, I find that the Tribunal erred. The Tribunal was correct to underscore that the WSIAT explicitly declined to determine whether G.P. was entitled to accident benefits under the Schedule. That, of course, is a power that the legislature, through s. 280 of the Insurance Act, vested exclusively with the Tribunal. However, the Tribunal erred in ultimately placing too much emphasis on the purpose underlying G.P.’s decision to commence his 2014 action.

32. The WSIAT determined that the WSIA had “taken away” G.P.’s right of action. Just as the WSIAT was obligated to observe the limits of its jurisdiction and respect the Tribunal’s exclusive preserve to determine G.P.’s entitlement to benefits under the Schedule, so too the Tribunal has reciprocal obligation to accept the limits of its own powers and respect the WSIAT’s expertise and jurisdiction to render this determination. The parties raised no reason to doubt its correctness. Given this determination, G.P.’s purpose in commencing the 2014 action is irrelevant – in light of the WSIAT’s decision, G.P. had, as Northbridge argues, no election to make for the purposes of either s. 30 of the WSIA or s. 61(2) of the Schedule.

Conclusion

33. For these reasons, I therefore grant Northbridge’s request for reconsideration, cancel the Tribunal’s decision, and dismiss this application.

Linda P. Lamoureux

Executive Chair

Safety, Licensing Appeals and Standards Tribunals Ontario

Released: June 6, 2017

Footnotes

1. 1O. Reg. 34/10
2. 2S.O. 1997, c. 16, Sch. A.
3. 3Godbout v. Pagé, 2017 SCC 18 at para. 120.
4. 4Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27 at para. 21.
5. 5Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] 2 S.C.R. 890 at paras. 23-6.