Ramesh Suntharalingam v. Chubb Insurance Company of Canada, 2023 CanLII 47532

Licence Appeal Tribunal

LAT File Number: 20-009977/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:

Ramesh Suntharalingam

Applicant

and

Chubb Insurance Company of Canada

Respondent

DECISION

ADJUDICATOR: Derek Grant

APPEARANCES:

For the Applicant: Ramesh Suntharalingam, Applicant (No Submissions)

For the Respondent: Diana Oliveira, Counsel

HEARD: By way of written submissions

OVERVIEW

1The applicant was involved in an automobile accident on May 19, 2019 and sought benefits pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the "Schedule"). The applicant was denied benefits by the respondent, Chubb Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the "Tribunal") for resolution of the dispute.

PRELIMINARY ISSUE

2The preliminary issue to be determined is whether the applicant is precluded from receiving benefits in accordance with s. 61 of the Schedule.

RESULT

3The applicant is not entitled to claim accident benefits as he is precluded from receiving benefits in accordance with s. 61 of the Schedule.

BACKGROUND

4A case conference was scheduled for March 26, 2021. Neither party appeared.

5A subsequent case conference took place on July 15, 2021. Both parties attended. The respondent sought to add a preliminary issue regarding whether the applicant was precluded from receiving benefits in accordance with s. 61 of the Schedule. The issue was added and pursuant to the Tribunal Order dated July 21, 2021, a timetable for the parties to serve their written submissions and evidence was established.

6The deadline for the exchange of documents between the parties was March 18, 2022 and the written submission deadlines on the preliminary issue was April 19, 2022 for the respondent, May 3, 2022 for the applicant and May 17, 2022 for the respondent's reply submissions. A written hearing was scheduled for May 31, 2022. By the time of the hearing deadline, the applicant had not produced any documents, nor filed any evidence or submissions with respect to the preliminary issue as well as the substantive issues. The respondent had produced its documents and filed all evidence and submissions in accordance with the deadlines.

7On May 27, 2022, the applicant emailed the Tribunal requesting an adjournment. On May 30, 2022, the Tribunal responded to the applicant (copying respondent's counsel), requesting that the appropriate form to request an adjournment be completed. On June 7, 2022, the Tribunal issued an Order granting the applicant a brief adjournment and extension of time to secure representation and file submissions for the written hearing on a peremptory basis. At paragraph 9 of the Order, it notes that no further adjournment requests or extensions will be considered. Lastly, at paragraph 13 of the Order, it states that if the applicant fails to make submissions by the new deadline, a determination will be made by the Tribunal without their participation. The new deadline for the applicant's written submissions was set for August 26, 2022. The new written hearing date was scheduled for September 9, 2022.

8On October 26, 2022, the Tribunal emailed the parties to advise that, to date, the applicant's submissions had not been received. The applicant did not respond. On January 20, 2023, the respondent wrote to the Tribunal (and the applicant) indicating that the applicant had abandoned his case and that the matter needed to be addressed. The Tribunal responded on the same day requesting the respondent to bring a motion to address the alleged abandonment of the case. The applicant did not respond.

9On February 1, 2023, the respondent filed a Notice of Motion requesting that the application be dismissed as the applicant has abandoned the proceeding pursuant to section 3.4 of the LAT Rules of Practice and Procedure. On February 2, 2023, the respondent's motion was denied on the basis that it was premature and that a decision on the preliminary issue had not been released.

ANALYSIS

10The applicant failed to file evidence and submissions with respect to the preliminary issue.

11The respondent submits that the applicant is precluded from receiving benefits in accordance with s. 61 of the Schedule. The respondent posits that the applicant has been deemed an employee by the Worker's Safety and Insurance Board ("WSIB") and is entitled to receive benefits; an assignment was sent to WSIB and was approved on June 4, 2020, confirming the applicant's status as an employee.

12The respondent further submits that if there is a dispute about whether an applicant was an employee at the time of the accident, the employer has six months from the date of the decision (February 3, 2020), to dispute the decision of the WSIB. To date, there has been no application filed within the allowable six-month period, disputing that the applicant was an employee at the time of the accident. At the time of this proceeding, it has been over 3 years since the decision, therefore, the deadline to dispute whether the applicant was an employee has long passed.

13Section 61 of the Schedule provides that an insurer is not required to pay accident benefits for a claimant who is entitled to receive WSIB benefits unless the claimant elects to opt out of the WSIB benefits to pursue a tort action and accident benefits.

14At page 13, lines 12 and 13 of the Examination Under Oath ("EUO") (Transcript dated June 17, 2021), the applicant confirms his intention regarding WSIB, stating, "I have no intention of opting out of WSIB benefit [sic]...". The respondent submits that the applicant has not commenced a tort claim and is beyond the limitation period to do so. I note that the applicant was involved in a single vehicle accident, and that the applicant testified at the EUO, that the accident happened due to the weather (wind). In such circumstances, there is likely not a viable tort claim, as there was no other vehicle/driver involved.

15The respondent's position is that even if a Statement of Claim was issued to support the s. 61 exemption, the tort claim would not viable. In this regard, it points to the fact that the applicant was charged in connection with the subject accident.

16The respondent submits that the evidence supports that the applicant is not entitled to claim accident benefits for injuries sustained as a result of the accident, on the grounds that he is precluded from receiving benefits in accordance with s. 61 of the Schedule.

ORDER

17The applicant is precluded from receiving benefits in accordance with s. 61 of the Schedule. Given my finding on the preliminary issue, it is unnecessary to consider the substantive issues.

18The application is dismissed.