Licence Appeal Tribunal File Number: 24-006187/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:
Theepika Kulasegarampillai
Applicant
and
Aviva Insurance Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
Godfrey Bakeerathan, Counsel
For the Respondent:
Tresa S. Zacharia, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Theepika Kulasegarampillai (the “applicant”) was involved in an automobile accident on July 16, 2021 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“Schedule”). The applicant was denied benefits by Aviva Insurance Canada (the “respondent”) and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUE IN DISPUTE
2The preliminary issue to be decided is:
i. Is the applicant barred under s. 61 of the Schedule from pursuing her claim for accident benefits?
RESULT
3The applicant is barred from pursuing her claim for accident benefits pursuant to section 61 of the Schedule.
PROCEDURAL ISSUES
No submissions by the applicant
4The applicant did not file any submissions for the preliminary issue hearing. The case conference report and order (“CCRO”) identified the preliminary issue, indicated that it was to be heard prior to the substantive issues, and set out a timetable for the parties’ submissions. I am satisfied that the applicant received notice of this preliminary issue hearing, given that the CCRO was sent to her representative at the address on file. Despite this order, no submissions were filed on behalf of the applicant.
ANALYSIS
The applicant’s claim is statute-barred
5I find that the applicant is barred from pursuing her claim for accident benefits pursuant to s. 61 of the Schedule.
6According to the Application for Accident Benefits (OCF-1), the applicant was involved in a motor vehicle accident while in the course of her employment as a FedEx driver when she failed to stop at a stop sign and collided with another vehicle. As such, the applicant would have been entitled to receive benefits from the Workplace Safety and Insurance Board (WSIB) in accordance with the Workplace Safety and Insurance Act, 1997 (WSIA).
7Section 61(1) provides that an insurer is not required to pay accident benefits to an insured person who is entitled to receive benefits under the WSIA.
8The applicant is barred from claiming accident benefits unless she can prove that the exception described in Section 61(2) applies. She must establish that she has elected to bring a tort action in accordance with section 30 of the WSIA, and that this election was not made primarily for the purpose of claiming statutory accident benefits.
9The applicant has not established that the exception applies. Despite several requests from the respondent, the applicant has not provided evidence that she elected to bring an action referred to in section 30 of the WSIA. There is no evidence that the applicant has commenced an action against another party with respect to injuries she sustained in the subject accident. The applicant has only provided a WSIB assignment of benefits on May 14, 2024, nearly three years post-accident, and well after the two-year limitation period for commencing a tort action.
10The applicant is not entitled to claim accident benefits pursuant to section 61(1) of the Schedule.
ORDER
11The applicant is barred from pursuing her claim for accident benefits pursuant to section 61 of the Schedule.
12The application is dismissed. The Tribunal will vacate the hearing date for the substantive issues.
Released: November 22, 2024
___________________________
Kate Grieves
Adjudicator