Safety, Licensing Appeals and Standards Tribunal 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 no 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:
Jonathan Batty, Associate Chair
Date:
June 7, 2018
File:
16-002364/AABS
Case Name:
I.T. v. The Personal Insurance Company
Written Submissions By:
For the Applicant:
Devon T. Kinch, Counsel
For the Respondent:
Benjamin Lee, Counsel
Overview
[1]. The applicant, I.T., was injured in a motor vehicle accident on January 22, 2015 while she was in the course of her employment. She applied for and received benefits from the Workplace Safety and Insurance Board (“WSIB”). I.T. subsequently made an election under s. 30 of the Workplace Safety and Insurance Act, 1997 (WSIA)1 to withdraw her WSIB claim and pursue a lawsuit and statutory accident benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010, (the “Schedule”).2
[2]. The central issue in this case concerns s. 61 of the Schedule. In essence, that section allows a person who is entitled to receive benefits under the WSIA to elect to pursue a lawsuit and claim accident benefits under the Schedule provided that such election is not made primarily for the purpose of claiming accident benefits. The respondent, the Personal Insurance Company (“the Personal”), denied I.T. benefits on the basis that she did not satisfy this test.
[3]. I.T. then applied to the Licence Appeal Tribunal (“Tribunal”). The Tribunal determined that I.T. was not precluded by s. 61 of the Schedule from proceeding to a hearing. The Tribunal determined that I.T.’s election was “equally made to pursue a tort claim and accident benefits, and thus, not primarily for claiming accident benefits.”
[4]. The Personal requests reconsideration of the Tribunal’s decision under Rule 18.2(b) of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016), alleging that the Tribunal erred in law and fact by:
finding that an applicant may make an election under s. 61 of the Schedule for the equal purposes of pursuing tort and accident benefit claims;
misapprehending the viability of the applicant’s tort claim;
relying solely on I.T.’s subjective evidence regarding her election to the exclusion of all contrary objective evidence; and
misapprehending and dismissing the objective evidence, all of which indicated that I.T. de-elected from WSIB for the primary purpose of pursuing accident benefits.
[5]. Pursuant to her authority under s. 17(2) of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009,3 the Executive Chair delegated to me her responsibility to decide this request.
[6]. For the reasons that follow, I dismiss the Personal’s request for reconsideration.
Background
[7]. The timing of I.T.’s actions is relevant to this reconsideration. Therefore, what follows are the key events and dates.
[8]. On January 22, 2015, I.T. was injured in a motor vehicle accident while in the course of her employment as a registered practical nurse. Immediately following the accident, she spoke briefly with the driver of the other vehicle involved in the accident. Apparently, however, the other driver suddenly left. I.T. did not obtain any information identifying the other driver or his vehicle.
[9]. I.T. made a claim under the WSIA for workers’ compensation benefits. She received some health care and loss of earnings benefits. However, the WSIB denied her further benefits on June 29, 2015. Until that point, I.T. did not have legal representation. She then retained a paralegal on July 6, 2015. The paralegal assisted I.T. to object to the June 29, 2015 denial. In or around this time, I.T. also made an additional claim under the WSIA for psycho-traumatic disability and chronic pain.
[10]. On August 7, 2015, the WSIB upheld its June 29, 2015 denial. That same day, I.T. met with her paralegal. During the meeting, they discussed I.T.’s ability to make an election under s. 30 of the WSIA. The paralegal advised I.T. to seek advice from a lawyer with respect to a tort claim, which she did on August 20, 2015. On October 1, 2015, the paralegal contacted the WSIB about I.T.’s ability to re-elect under s. 30 of the WSIA in order to commence an action.
[11]. On October 2, 2015, the WSIB denied I.T.’s psycho-traumatic disability claim. I.T. objected to the decision, which the WSIB upheld on November 3, 2015. (I note that the Tribunal’s decision recorded the date of the WSIB decision as November 24, 2015. This is one of the errors of fact alleged by the Personal, which I address below.)
[12]. On November 24, 2015, I.T.’s tort counsel formally requested that I.T.’s WSIB claim be withdrawn. On January 15, 2016, the WSIB allowed her to withdraw her claim. On January 22, 2016, I.T. and her tort counsel signed a re-election agreement with WSIB pursuant to s. 30 of the WSIA. It appears that her tort counsel was formally retained around that time.
[13]. On March 3, 2016, she then made an accident benefits claim to the Personal, the details of which are irrelevant for the present reconsideration. The Personal denied her claim on March 16, 2016. I.T. applied to the Tribunal for dispute resolution on August 16, 2016.
[14]. On December 13, 2016, I.T.’s tort counsel issued her Statement of Claim.
Analysis
Does s. 61 of the Schedule allow a tort claim and accident benefits to be equal purposes?
[15]. At the hearing before the Tribunal, the Personal argued that I.T. was required to prove that her election was made for the primary purpose of commencing an action. The Tribunal rejected that approach, reasoning that “s. 61 is stated in the negative – the election is valid if she proves an equal intention to pursue tort and accident benefits”: see para. 25. Personal submits on reconsideration that this is an error of law, as there must be one primary purpose – as the Personal argues, there cannot be a “tie”.
[16]. The starting point on this issue is s. 61 of the Schedule, which states as follows:
Workplace Safety and Insurance Act, 1997
- (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. [Emphasis added.]
[17]. A plain reading of s. 61(2) suggests that equal purposes are permitted. If an election is made for the equal purposes of pursuing a tort action and claiming accident benefits, it cannot be said that either purpose is the primary one. In such a case, the election is not made “primarily for the purpose of claiming [accident] benefits”.
[18]. However, that does not necessarily end the inquiry, as the “words of an Act are to 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 the legislature”: Rizzo & Rizzo Shoes Ltd. (Re)4 at para. 21.
[19]. The parties make a number of submissions on how s. 61(2) of the Schedule should be interpreted in light of the statutory context and the decided case law.
[20]. First, the Personal submits that “prior case law clearly indicates that the primary motivation for a de-election from WSIB into the automobile insurance regime is a dichotomy,” that it is “either primarily one or the other.’” There is some support for the Personal’s position. In Mahadeo v. Aviva Canada Inc.,5 the arbitrator stated:
[T]he only logical inference one can draw is that any valid election must be made "primarily" for the purpose of commencing an action in tort as provided for in the Insurance Act, as there are only two branches of recourse for injuries in an automobile accident: statutory accident benefits and tort.
[21]. The Personal also relies on Hayward v. Royal & Sun Alliance Insurance Company,6 in which the Divisional Court stated at para. 42:
I think the practical effect of the specific wording of the provision is to require the applicant to demonstrate that he brought the action in good faith for a primary purpose other than the purpose of claiming benefits under the SABS regulation, that is, that he had a bona fide claim, a practical effect which is reasonable given that the applicant would be the party in possession of information regarding whether his claim meets this standard.
[22]. Despite the statements in Mahadeo and Hayward that an election must be made primarily for a purpose other than claiming accident benefits, I find that the focus of these and other cases is on whether the tort claim was brought in good faith. For example, in Mahadeo, the Financial Services Commission of Ontario (“FSCO”) found that the applicant brought his tort action simply to defend against the insurer’s claim for benefits repayment: see para. 43. Similarly, in Hayward, the Divisional Court ultimately framed the test in the passage above as whether the applicant had a “bona fide claim.” A tort claim may be brought in good faith even if an applicant is equally motivated by an accident benefits claim. I note that in neither Mahadeo nor Hayward was the question of equal purposes directly in issue.
[23]. The Personal also submits that a finding that the applicant had equal purposes is “essentially to say nothing”, as s. 258.3(1)(a) of the Insurance Act makes it mandatory to seek accident benefits in order to proceed with a tort claim. Put another way, the Personal appears to argue that anyone who files an accident benefits claim along with their tort action could always be said to be equally motivated by both purposes. I disagree. The question in each case is what, as a matter of fact, was the applicant’s motivation. If the evidence establishes that the applicant was primarily motivated by the accident benefits claim, or if the tort action was commenced merely to enable an accident benefits claim, the requirement of 61(2) would not be met.
[24]. The Personal further submits that allowing equal purposes under s. 61(2) of the Schedule is to accept “forum shopping” or a “wait and see” approach. A “wait and see” approach refers to the strategy of first applying for WSIB benefits and then re-electing to sue if WSIB benefits are denied. The Personal refers to Davis v. Pafco Insurance Co.,7 a decision of the Director of Arbitration at the former Ontario Insurance Commission. That decision states at para. 41 that the intent of the version of the Schedule in force at the time was to allow a “choice between compensation options, but only where the person is making a real choice,” and that a person who elects to sue only after being denied workers’ compensation benefits “is asking for a second opinion, not making a choice between viable compensation options.”
[25]. However, the “forum shopping” referred to in Davis relates to the choice between WSIB benefits and a tort claim. By contrast, the dual purpose of claiming accident benefits and commencing a tort claim is not a choice. Both are pursued simultaneously. A person may be denied WSIB benefits and then decide that their best option is to pursue a tort action. The fact that they were denied WSIB benefits does not necessarily affect their motivation as between tort and accident benefits. In any event, the Davis case acknowledged at para. 42 that “there may be circumstances where a bona fide re-election can be made after a final refusal [of workers’ compensation benefits].” I agree. Again, the question in each case will be one of fact: did the applicant re-elect for the primary purpose of claiming accident benefits?
[26]. I.T.’s submissions focus on decisions in other contexts that, according to I.T., suggest that if something is equally two things it is therefore not “primarily” either of those things. Some of the examples raised by I.T. are consistent with that plain meaning interpretation, but ultimately do not shed further light on the legislative intent of s. 61(2) specifically.
[27]. In my view, the intent of s. 61(2) of the Schedule is to ensure that tort actions are not commenced as a procedural step merely to gain access to accident benefits, that is to say that the tort action should be brought in good faith. This is consistent with the FSCO case law, which tends to focus on whether the applicant commenced the tort claim and made the election in good faith: see Coseco Insurance Co. / HB Group / Direct Protect v. Gebru8 at para. 10; Pearson v. ACE INA Insurance9 at para. 62. I find that purpose to be fulfilled where an applicant commences a bona fide tort action and may be equally motivated by an accident benefits claim.
[28]. For these reasons, I conclude that the Tribunal did not make an error of law by finding that an election is valid if I.T. proves an equal intention to pursue tort and accident benefits.
Did the Tribunal misapprehend the viability of I.T.’s tort claim?
[29]. The Personal submits that the Tribunal erred in law by finding that the merits of I.T.’s tort claim were strong. The merits of the tort claim have some relevance to the validity of the election. I agree with the FSCO case law that states that the strength of the court action is a “factor to be considered in evaluating the insured person's motivation in electing to proceed in court” but that the ultimate question to be determined under s. 61(2) of the Schedule is the applicant’s motivation in making the election. A weak case does not necessarily mean that the election to sue was not made in good faith, although it is a factor to be taken into consideration: Gebru, at paras. 11, 18.
[30]. The Tribunal considered the weaknesses of I.T.’s tort claim. As the Personal argued, these included I.T.’s ability to establish the seriousness and causation of her injuries; her failure to comply with certain procedural requirements for bringing the action; and, the likelihood that she would not be able to establish that the identity of other vehicle’s owner or driver “cannot be ascertained”, which is a requirement in order to establish an insurer’s liability under s. 265 of the Insurance Act with respect to an unidentified automobile. Notwithstanding these potential challenges to I.T.’s tort action, the Tribunal was not convinced that I.T.’s claim would fail. The Tribunal stated the following about the merits of her tort claim:
[T]he WSIB psychological assessor appears to find her psychological injuries significant, and Ms. T has a strong basis to establish relief from forfeiture, and a court could reasonably determine that given the circumstances of the driver suddenly leaving the scene and the shock of the accident, it wasn’t reasonable for her to secure the identity of the vehicle. In any event, these potential bars do not change my finding that Ms. T’s election was primarily for tort – or at least equally between tort and accident benefits.
[31]. The Personal argues on reconsideration that one’s failure to record a vehicle’s licence plate number due to the “shock” of an accident cannot make the identity of the vehicle’s owner unascertainable. An individual is required to make “all reasonable efforts” to identify the owner or driver of the other vehicle: Lambert v Khan10 at para. 50. The Personal argues that this test requires an “atmosphere of practical impossibility”, such as “a hit-and-run accident or a wilful refusal by the alleged offending driver to supply information, or an incapacity on the part of the driver of the innocent vehicle”: Leggett v. British Columbia (Insurance Corp. of)11 at para. 6.
[32]. In my view, it was open to the Tribunal to conclude that a court could find that a person would not be reasonably able to ascertain the identity of another driver due to shock and the other driver suddenly leaving the scene. Even if the Tribunal did err in assessing the merits of I.T.’s court action, I am not satisfied that this would have affected the result. The viability of the tort claim was one of several objective factors considered in answering the subjective question of I.T.’s state of mind at the time she made the election. The Tribunal’s reasons state that “these potential bars do not change my finding that Ms. T’s election was primarily for tort – or at least equally between tort and accident benefits.”
Did the Tribunal err in weighing the objective and subjective factors?
[33]. The Personal argues that the Tribunal erred by:
relying solely on I.T.’s subjective evidence in making his determination to the exclusion of all contrary objective evidence; and
misapprehending and dismissing the objective evidence, all of which indicated that I.T. de-elected from WSIB for the primary purpose of pursuing accident benefits.
[34]. Essentially, the Personal appears to be arguing that the Tribunal erred by favouring the subjective evidence of I.T. over the other objective factors. I disagree. It was open to the Tribunal to weigh the objective and subjective factors as it did.
[35]. As noted in the Tribunal’s decision, the question of whether an election is made primarily for the purpose of claiming accident benefits is a subjective one based on the applicant’s state of mind at the time of the election: see Gebru, at para. 8. However, the Tribunal must consider certain objective factors, such as the strength of the court action, the steps taken to pursue the claim, any advantages to accident benefits over WSIB benefits, and the claimant’s action or inaction before and after the election: Gebru at para. 8; Mahadeo (FSCO Appeal Decision) at paras. 17-19.
[36]. The Personal argues that all of the objective evidence suggests that the election was made for the primary purpose of pursuing accident benefits. The Personal points to the timing of the commencement of her tort claim, as well as the fact that her tort counsel was only retained after she had exhausted all of her avenues of appeal at the WSIB. The Personal argues that the Tribunal “relied entirely on [I.T.]’s self-serving and subjective Affidavit evidence indicating that she de-elected WSIB to pursue her tort rights.”
[37]. Contrary to the Personal’s submission, I am not satisfied that the Tribunal excluded, misapprehended, or dismissed the objective factors. The Tribunal considered the timing of the WSIB denial, consulting and retaining tort counsel, applying for accident benefits, and commencing the tort action. The Tribunal also considered the fact that I.T. was not represented by counsel from the beginning. The Tribunal put weight on the fact that I.T.’s tort claim was filed within the statutory limitation period. The Tribunal accepted I.T.’s explanation of how she proceeded from one step to the next and accepted her affidavit evidence about her ability to pursue damages for pain and suffering in a tort action. The Tribunal also considered the strength of I.T.’s tort claim. Taking all of those factors into consideration, the Tribunal concluded that I.T.’s election was not primarily for the purpose of claiming accident benefits. I find that the Tribunal made no error in fact or law, and that it is not my role to reweigh the subjective and objective factors.
[38]. The Personal also states that the Tribunal erred in fact with respect to the date that WSIB dismissed I.T.’s objection to the denial of her psycho-traumatic injury claim. The Tribunal noted this date as November 24, 2015. Based on the record, this denial appears to be dated November 3, 2015. I am not satisfied that this error is such that the Tribunal would likely have reached a different decision. The Personal argues that the earlier date is evidence that I.T. was waiting to exhaust all her avenues of appeal at WSIB before making the election. However, I.T. first consulted her tort counsel in August 2015 and inquired into the re-election process on October 1, 2015. Both of these were prior to her final WSIB denial, whether it was November 3 or November 24, 2015.
Order
[39]. For the reasons set out above, I dismiss this request for reconsideration.
Jonathan Batty
Associate Chair
Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Released: June 7, 2018
Footnotes
- S.O. 1997, c. 16, Sch. A
- O. Reg. 34/10
- S.O. 2009, c. 33, Sched. 5
- 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27
- 2006 CarswellOnt 2914 (FSCO Arbitration Decision), aff’d on appeal, 2007 CarswellOnt 1991 (FSCO Appeal Decision).
- 2015 ONSC 433
- 1997 CarswellOnt 2832
- 2002 CarswellOnt 5580, (FSCO Appeal Decision)
- 2016 CarswellOnt 15356 (FSCO Arbitration Decision)
- 2016 ONSC 103
- 1992 CanLII 1263 (B.C.C.A.)