Citation: Thiyagarajah v. Economical Insurance, 2023 ONLAT 21-001866/AABS
Licence Appeal Tribunal File Number: 21-001866/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:
Sivakumar Thiyagarajah
Applicant
and
Economical Insurance
Respondent
DECISION
ADJUDICATOR:
Janet Rowsell
APPEARANCES:
For the Applicant:
Sivakumar Thiyagarajah, Applicant
Alexei Antonov, Counsel
For the Respondent:
Economical Insurance
Hermina Nuric, Counsel
Interpreter (Tamil language)
Kandiah Pathmanathan
Court Reporter:
Alyssa Scott
HEARD: by Videoconference:
October 17, 2022
OVERVIEW
1The applicant was involved in an automobile accident on January 16, 2019, and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”, O. Reg. 34/10). The applicant was denied certain benefits by the respondent and submitted an application to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
2The applicant and respondent co-submitted at the hearing on October 17, 2022, that the parties had arrived at a resolution in relation to the issues in dispute. However, the parties also submitted that the terms of the resolution, which were privileged, required a determination of the motion by the respondent, which is addressed in these reasons for decision.
ISSUE IN DISPUTE
[3] i. Did the applicant make an election pursuant to section 61(2) of the Schedule for the primary purpose of receiving benefits under the Schedule?
ii. Is the applicant entitled to claim accident benefits under the Schedule as a result of an accident?
RESULT
4I find that the applicant is entitled to claim accident benefits from the respondent for injuries that he sustained as a result of the accident as he met his onus of proving on a balance of probabilities that his election pursuant to section 61(2) was not made for the primary purpose of receiving benefits under the Schedule. As a result, the motion by the respondent is dismissed.
ANALYSIS
Background
5At the time of the accident, the applicant was driving a vehicle owned by his employer 2108840 Ontario Ltd. and insured by the respondent under a commercial policy. The applicant applied for accident benefits immediately following the accident including an income replacement benefit, with appropriate documentation from both of his employers and the employers’ representatives, the General Manager of Mr. Greek, and the President of “Global Rack and Pinion.”
6On January 25, 2019, following the accident, Global Rack and Pinion filed an Employer’s Report of Injury/Disease (Form 7) with the Workplace Safety and Insurance Board (WSIB) on the applicant’s behalf.
7On February 12, 2019, in response to the OCF-1, indicating that the Applicant was injured in the course of employment at the time of the accident, the respondent insurer requested the Applicant complete a WSIB Election and Undertaking, in addition to an Assignment of WSIB benefits, which the respondent furnished. The applicant executed the election, submitting it to the respondent, demonstrating an election pursuant to section 61(2) of the Schedule, claiming he would be seeking damages in tort for his accident-related injuries, in addition to claiming accident benefits under the Schedule.
8It is undisputed by the parties that the applicant was entitled to claim WSIB benefits as a result of the accident. However, the applicant elected to pursue the exception under section 61(2) of the Schedule, since at the time of the election, the applicant intended to seek damages by means of a tort action against the at fault driver in the accident.
9On August 3, 2021, at a case conference, the respondent requested evidence regarding the status of the applicant’s court application based on accident-related damages in tort. The applicant submitted the Motor Vehicle Accident Report dated January 16, 2019, listing Verold Roy Morgan as the driver of the other vehicle involved in the accident.1 In addition, the applicant provided correspondence addressed to Verold Roy Morgan, dated February 2, 2019, advising of a potential lawsuit by the applicant.
10The respondent submits that it is not required, pursuant to s. 61(1) of the Schedule, to pay accident benefits to the applicant unless the applicant falls within the exception provided for in s. 61(2). The respondent submits that the applicant’s intention in making the election pursuant to section 61(2) of the Schedule was in fact primarily for the purpose of claiming accident benefits, since he did not file a statement of claim to commence a tort action within the two-year limitation period following the accident. In addition, the respondent submits that the election on February 20, 2019, was not made in conformity with WSIB processes and is, therefore, invalid.
Legal Principles and Statutory Provisions
11Section 61(1) of the Schedule states that automobile insurers are not required to pay accident benefits under the Schedule to those who are entitled to claim workers’ compensation benefits under the Workplace Safety and Insurance Act. The exact wording of the section forms the basis of the dispute:
- (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 (WSIA) or any other workers’ compensation law or plan.
12Section 61(2) provides a limited exception to the general rule in section 61(1). The exact wording of section 61(2) is to the effect that it 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.” 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 under this Regulation” (for accident benefits).
13Section 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.
14In 16-002364 v. The Personal Insurance Company 2017 CanLII 148445 (ON LAT) (16-002364), the Tribunal set out a number of guiding principles to analyze whether an applicant’s election under section 61(2) is not made “primarily for the purpose” of claiming benefits under the Schedule. These principles were also considered in Smektala and TD Insurance Meloche Monnex, 2021 CarswellOnt 15089 (ON LAT).
15I agree that the principles set out in 16-002364 are persuasive and helpful in determining the “primary purpose” of an election under s. 61(2), which is a fact-driven analysis. The relevant point in time when determining the applicant’s “primary purpose” is when the election takes place. In determining the “primary purpose” and mindset of the applicant at the time of the election, the test applied is a subjective one to consider if the choice was made in good faith. However, determining the applicant’s mindset requires the Tribunal to evaluate objective factors to determine the applicant’s motives. The determinative factors that may be considered to determine the applicant’s primary purpose, include: the strength of the court action; steps undertaken to pursue the claim; challenges to establishing liability in tort; and advantages that might lead an applicant to the action or inaction of choosing accident benefits over WSIB benefits.
Positions of the parties
16The respondent submits that although the applicant completed an election and undertaking furnished by the respondent, that the form executed was invalid for the purpose of making the section 61(2) election, as it was not issued by the WSIB. The respondent submits that it was incumbent on the applicant to complete a WSIB form for the section 61(2) election to be effective, although ostensibly it would appear that the respondent company provided the form to the applicant for the purpose of making an election. The respondent submits that the applicant was required to conform with the WSIB Policy Manual. The Tribunal notes that the Schedule does not state that the WSIB processes, in relation to the section 61(2) election, are mandatory to satisfy the requirements of the election exemption in the Schedule. Rather, this subsection of section 61 is focused on the intention of the claimant at the time of the election and not on the form of the election.
17The respondent further submits that the applicant’s intention in making the election was “primarily for the purpose of claiming accident benefits” since he did not file a statement of claim to commence a tort action within the two-year limitation period following the accident The respondent submits that the applicant applied to WSIB for benefits in January 2019.
18However, I find this not to be the case. Rather, as noted, it was one of the applicant’s two employers who applied for WSIB benefits at the same time the employer applied for automobile insurance benefits on the applicant’s behalf. The applicant did not personally apply for, nor receive, WSIB benefits, but rather he signed the election on February 20, 2019, which was sent by the respondent, for the express purpose of electing to receive accident benefits, as the applicant intended to pursue an action for damages in tort at that time. The applicant sent correspondence to the opposing, at-fault driver Verold Ray Morgan on February 2, 2019, advising Mr. Morgan that the applicant intended to pursue a court application.
19Still, the Respondent submits that the applicant’s actions were ambiguous in terms of an election under section 61(2). I disagree. The Tribunal finds that the applicant’s actions demonstrate an intention, immediately following the accident, to seek accident benefits and plausibly pursue the striking driver at fault in the subject accident by way of court action. The applicant did not seek nor apply for WSIB benefits, rather, one of his two employers applied to WSIB and filed an OCF-2 Employer’s Confirmation Form contemporaneously.
The applicant’s primary purpose
20It is the primary purpose or mindset of the applicant at the time of the election that is the key consideration for the Tribunal pursuant to section 61(2) as opposed to the Tribunal considering the purpose of any other party, such as the applicant’s employer. In addition, the election form supplied by the respondent was executed on February 20, 2019, by the applicant, a witness and, acknowledged by means of counter signature by the respondent, which demonstrates to the Tribunal that the applicant made a choice in good faith and an election under section 61(2), which was acknowledged by the respondent and that the election was a reasonable step to take since the applicant was considering suing the striking driver.
21Further, I find the notice letter sent to Mr. Morgan on February 2, 2019, is another element of the fact driven analysis which supports the applicant’s intention to pursue a court action. I do not agree with the respondent’s submission that the correspondence sent to the applicant by applicant’s counsel on December 16, 2020,2 undermines the bona fides of the original election. Litigation is complicated and financially risky, and the fact that the applicant later decided not to pursue the other driver’s liability in tort does not diminish the possibility of litigation as a valid goal for the applicant immediately following the accident. The correspondence to the applicant dated December 16, 2020, addresses a hurdle to a tort claim relevant and made known to the applicant by his counsel with the passage of time, following the event of the election.
22I agree with the applicant, who submitted that the respondent is asking the Tribunal to over-reach beyond its jurisdiction, bringing a motion for the enforcement of regulations and processes of the Workplace Safety and Insurance Board (WSIB). The respondent did not challenge the entitlement to automobile insurance benefits on the basis of section 61 of the Schedule until the case conference on August 3, 2021, following what it describes as the expiration of the two-year limitation period for filing a tort claim.
23In addition, I agree that the applicant made the election pursuant to section 61(2) of the Schedule on February 20, 2019, in the form provided by the respondent. The applicant points out that the consequences of not filing the election directly with WSIB, pursuant to section 30(6) of the Workplace Safety and Insurance Act, is that the claimant is deemed not to receive benefits under the WSIB Insurance plan if he does not supply an election within 90 days of the accident. The applicant submits that his intention was to bring a tort action since he had a cause of action as there was no contributory negligence on his part and that the striking driver was entirely at fault. The Applicant submits that he immediately and decisively applied for accident benefits pursuant to the Schedule on the basis of entitlement to bring a tort action for damages. I find the evidence supports this.
24In the decision, 16-002364 v. The Personal Insurance Company 2017 CanLII 148445 (ON LAT) (16-002364), the respondent similarly submitted that the insured had an obligation to prove that her election for tort and accident benefits falls within the exception of s. 61 of the Schedule. However, the Tribunal at paragraph 25 made the finding based on the wording of section 61, that the section 61 (2) election is valid if the applicant proves an equal intention to pursue tort and accident benefits.
25While the respondent submits that the applicant did not take steps after the election to pursue an investigation and further solidify the tort action, I find that this consideration is only one factor in the fact-driven analysis and the other considerations, in terms of entitlement to a claim in tort and the strength of the cause of action, are considerations which outweigh actions which a litigant might possibly consider if pursuing a tort action
26I find the applicant intended a tort action as a realistic possibility in the foreseeable future at the time of the election pursuant to section 61(2). Because the test concerns the time of the election, it is clear based on a review of the applicant’s actions following the accident and by a review of the undisputed facts and material in the parties’ briefs, that the requirements of section 61(2) of the Schedule are met on a balance of probabilities.
27Additionally, I note that it is acknowledged in adjuster Jaime Renner’s log notes that the WSIB Election and Undertaking Form submitted by Economical Insurance was received on February 27, 2019, and that the claimant elected to receive accident benefits, as the applicant intended to pursue a tort claim against the striking driver at the time of the election. It is also noted in the log notes by Ms. Renner on February 13, 2019, that the applicant was not the at fault driver. I find these facts to be compelling evidence in support of the applicant’s claim.
28Accordingly, I find that the applicant is entitled to claim accident benefits from the respondent for injuries that he sustained as a result of the accident. The applicant has met the burden of proof on the strength of a fact driven analysis with the evidence provided.
29I find that the applicant has met the onus of proving that his election to sue in tort falls within the exception set out in s. 61(2) of the Schedule.
ORDER
30The applicant is entitled to claim accident benefits from the respondent for injuries that he sustained as a result of the accident, as he met the onus of proving on a balance of probabilities that his election pursuant to s. 61(2) on February 20, 2019, was not made for the primary purpose of receiving benefits under the Schedule. As a result, the motion by the respondent is dismissed.
Released: February 24, 2023
Janet Rowsell
Adjudicator