Sara Calderon v. Allstate Canada, 2023 CanLII 15054

Citation: Calderon v. Allstate Canada, 2023 ONLAT 20-013275/AABS

Tribunal File Number: 20-013275/AABS

In the matter of an Application pursuant to subsection 280(2) of the Insurance Act, RSO 1990, c I.8, in relation to statutory accident benefits.

Between:

Sara Calderon

Applicant

and

Allstate Canada

Respondent

PRELIMINARY ISSUE DECISION [AND ORDER]

ADJUDICATOR:

Tavlin Kaur

APPEARANCES:

For the Applicant:

Sara Calderon, Applicant

Samia Alam, Counsel

For the Respondent:

Diana Oliveira, Counsel

Stefanie Schone, AB Specialist

Heard by way of written submissions

OVERVIEW

1This proceeding concerns a dispute between an insured person (the applicant) and an insurer (the respondent) about automobile insurance benefits under the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”) arising out of a motor vehicle accident on October 8, 2018.

PRELIMINARY ISSUE IN DISPUTE

2The preliminary issue to be decided at the hearing is:

i. Is the applicant statute-barred from pursuing her claim for accident benefits to the Licence Appeal Tribunal due to alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997 S.O. 1997, c. 16, Sched. A (“WSIA”) in accordance with section 61 of the Schedule?

RESULT

3I find that the applicant is statute-barred under s. 61 of the Schedule.

BACKGROUND

4On October 8, 2018, the applicant was involved in a motor vehicle accident while travelling on Henderson Road in the Town of Milton. There was dense fog and low visibility. The applicant was waiting for a stop sign to appear. However, due to the low visibility, she was unable to see it. She attempted to brake, but her car slid and went off the road into a ditch. Emergency services attended the scene of the motor vehicle accident. The applicant went home and reported the accident to the respondent shortly thereafter.

5On October 10, 2018, the applicant’s employer filled out the Employer's Report of Injury/Disease (“Form 7”) with the Workplace Safety and Insurance Board (“WSIB”). The applicant received correspondence from the employer acknowledging the receipt of the Form 7. She was told to complete a Worker’s Report of Injury/Disease (Form 6). On November 5, 2018, she completed and filed the Form 6 with the assistance of her employer. The applicant was advised that she did not qualify for the loss of earnings benefit (“LOE”) because she did not miss work.

6It is alleged that the applicant sought legal advice in August 2019 in relation to the accident benefits claim and a tort claim. On September 28, 2020, a Statement of Claim was filed on behalf of the applicant against the Town of Milton for improper lighting and signage. The applicant filed the Application by an Injured Person on November 11, 2020 with the Tribunal.

7On February 7, 2022, the applicant received correspondence from the WSIB which acknowledged her choice to pursue the lawsuit and provided her with an election form. She sent the election form to the WSIB on February 15, 2022. The respondent acknowledged receipt of the election form on March 11, 2022.

PARTIES’ POSITIONS

8The respondent submits that the applicant opted out of the WSIB benefits on February 15, 2022, which is 28 months after the accident took place. The respondent submits that the applicant opted out of the WSIB benefits and commenced a tort claim solely for the purpose of claiming accident benefits. It is the respondent’s position that the applicant has not met her onus.

9The applicant submits that she is not statute-barred from proceeding with her claim for accident benefits.

Law

Section 61

10Section 61(1) of the Schedule states that insurers are not required to pay accident benefits under the Schedule to those who are entitled to claim workers’ compensation benefits under the WSIA. The exact wording of the section is important and forms the basis of the dispute:

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.

11Section 61(2) is also relevant, as discussed below.

Section 61(2) provides a limited exception to the general rule in s. 61(1). That exception applies to injured workers who 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.

12Section 61(5) states that, despite subsection (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under the Schedule pending resolution of the dispute if, (a) the person makes an assignment to the insurer of any benefits under any workers’ compensation law or plan to which he or she is or may become entitled as a result of the accident; and (b) the administrator or board responsible for the administration of the workers’ compensation law or plan approves the assignment.

13I find that the following principles set out in 16-002364 v The Personal Insurance Company, 2017 CanLII 148445 (ON LAT) are persuasive and helpful in determining the “primary purpose” of an election under s. 61(2):

(i) It is the applicant’s obligation to prove that their election for tort and accident benefits falls within the exception of s. 61 of the Schedule and this determination is largely fact driven;

(ii) The relevant point of time when determining the applicant’s “primary purpose” is at the time of the election;

(iii) Determining the “primary purpose” involves determining the applicant’s mindset at the time of the election and, therefore, the test is inherently a subjective one to consider if the choice was made in good faith;

(iv) Although the test is subjective, the Tribunal must consider “objective” factors in evaluating the applicant’s motives. These factors include the strength of the court action, the steps taken to pursue the claim, and any advantages that might have led the applicant to choose accident benefits over WSIB benefits. Action or inaction since the election and the strength of the action can shed light on the true mindset of the applicant. Challenges to successfully establishing liability in tort are also a factor to consider; and

(v) The election must be a “real choice” as opposed to forum shopping on the question of disabilities although there may be circumstances where a bona fide re-election can be made after a final refusal for benefits by the WSIB.

14Based upon the evidence before me I find that the applicant did opt out of the WSIA for the sole purpose of claiming accident benefits. On January 25, 2019, the respondent informed the applicant in a letter that she would need to elect accident benefits to pursue a tort action against a third-party vehicle in order to be eligible for benefits under the automobile legislation.

15No action was taken on the part of the applicant in this regard. By her own admission, the applicant sought legal advice in late August 2019, and it appears that she retained legal counsel in October 2019 based on her submissions. It was not until a little over a year on September 28, 2020 when the statement of claim was issued by the Court. There is no evidence led by the applicant of her intention to pursue the tort action during that time period. While I recognize that there may have been a delay in pursuing the tort action during the time period when the applicant was unrepresented, this does not explain why there was a gap in pursuing the tort action once she was represented. Moreover, the applicant did not provide any evidence, via affidavit or otherwise, of her mindset at the time of the re-election such that I could determine if the applicant’s decision to sue in tort was a choice made in good faith.

16The evidence shows that the applicant sought to appeal the decision to deny Loss of Earnings (“LOE”) benefits on three occasions before she applied to the Tribunal. She informed WSIB of her intention to appeal the LOE decision for the fourth time after applying to the Tribunal and filing her Statement of Claim. This raises the question why the applicant continued to appeal the LOE decision if her intention was to pursue the tort action. The applicant has not provided an explanation for this. In my view, this gives the impression that the applicant was forum shopping.

17The respondent raised the issue that the WSIB was not notified of the applicant’s intention to opt out of WSIB benefits until February 15, 2022, which was less than two weeks before the respondent’s submissions were due for this written hearing. The applicant submits that she was never provided with an election form because the WSIB never conducted an investigation. Her counsel made contact with the WSIB in January 2022 and requested the election form. This was provided in February 2022. The letter from the WSIB dated February 7, 2022 states “it has been brought to the WSIB’s attention that you have also pursued a lawsuit seeking damages for your workplace injuries. We note that a statement of claim was filed bearing court file number CV-20-00073944-0000, naming the Town of Milton as the defendant.” In her submissions, the applicant alleges that the WSIB did not provide her with an election form. I accept this fact because the WSIB acknowledged that they were not aware of the fact that a third party was involved in her workplace injuries.

18However, it raises the question why the WSIB was not made aware of the applicant’s intention to pursue the tort action sooner. There is a significant gap from the time that the statement of claim was issued to the time that the WSIB became aware of the tort action. The applicant obtained legal representation in late 2019. The statement of claim was issued the following year on September 28, 2020. There is no explanation as to why it took until January 2022 for the WSIB to be notified about the tort action. Nor is there any evidence that contact was made earlier and the WSIB did not respond in a timely manner.

19The applicant submits that she was actively pursuing accident benefits. However, the Application by an Injured Person was filed with the Tribunal on November 11, 2020. This raises the question why there was a delay of almost a year in filing the application with the Tribunal once the applicant retained legal representation. She has not provided an explanation for the delay. The application is easily available online. The applicant’s actions do not seem to support her position.

20The applicant has not made any submissions nor has provided any evidence with respect to the viability and likelihood of success of her tort action. Rather, I am more persuaded by the evidence that has been proffered by the respondent in the form of the statement of defence from the Town of Milton which shows that the applicant failed to provide the Town with proper notice of her claim within 10 days after the occurrence of the alleged injury pursuant to section 44(10) of the Municipal Act, 2001, S.O. 2001, Chapter 25. I find that this may impact her claim as she did not comply with the timeline. I find that filing a statement of claim does not overcome the applicant’s burden to prove on a balance of probabilities that she did not re-elect to sue in tort primarily for the purpose of claiming benefits under the Schedule.

21I am also not persuaded by the case law that has been presented by the applicant in support of her case. I find those cases to be distinguishable from the facts before me. Moreover, previous decisions from the Tribunal are not binding on me. J.S. v Aviva General Insurance, 2019 CanLII 130360 (ON LAT) is different from the facts before me as the issue in that case as that pertained to entitlement to WSIB benefits. That is not the issue in the case at hand. In 16-002364 v The Personal Insurance Company, 2017 CanLII 148445 (ON LAT), the applicant provided affidavits that showed her intention to pursue the tort action. Moreover, she filed her statement of claim in a timely manner. This did not happen in this particular case. Nor did her counsel provide an affidavit or supporting evidence to show that the tort action is viable as did the counsel in 16-002364/AABS. As such, I find the cases presented by the applicant of little assistance.

22On the whole, I am not convinced that there was a bona fide intent to commence a tort action and conclude that the insured person did so for the sole purpose of claiming accident benefits.

ORDER

23I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with her application for accident benefits at the Tribunal. As a result, the application is dismissed.