Licence Appeal Tribunal File Number: 23-008208/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:
Pasquale Iannuccilli
Applicant
and
CAA Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Kate Grieves
APPEARANCES:
For the Applicant:
No submissions
For the Respondent:
Peter Mendelsohn, Counsel
HEARD:
By Way of Written Submissions
OVERVIEW
1Pasquale Iannuccilli (“the applicant”) was involved in an automobile accident on July 29, 2020 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 CAA Insurance Company (“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 whether the applicant is barred from pursuing his claim for accident benefits pursuant to section 61 of the Schedule?
RESULT
3The applicant is barred from pursuing his claim for accident benefits pursuant to section 61 of the Schedule.
4The application is dismissed.
ANALYSIS
No submissions from the applicant
5The parties participated in a case conference on February 2, 2024. The respondent raised the preliminary issue regarding whether the applicant was precluded from receiving accident benefits pursuant to s. 61 of the Schedule. The preliminary issue was identified on the case conference report and order (“CCRO”) dated February 9, 2024, it was ordered to be heard in writing prior to the substantive issues in dispute, and a timetable for the parties to serve their written submissions and evidence was established.
6The written submission deadline for the respondent was April 17, 2024, the applicant’s deadline was April 24, 2024, and the deadline for the respondent to serve and file a reply was April 29, 2024. On April 10, 2024, the applicant’s representative was removed from the record. Despite the Tribunal’s multiple attempts to contact the applicant at the contact information on file to confirm if he was proceeding with his application self-represented or if he was seeking to retain new counsel, no response was received. Under Rule 4.4 of the Licence Appeal Tribunal Rules, 2023, parties have an obligation to keep their contact information up to date.
7The respondent served and filed its submissions within the timelines. No submissions were filed on behalf of the applicant.
The applicant’s claim is statute-barred
8I find that the applicant is barred from pursuing his claim for accident benefits pursuant to s. 61 of the Schedule.
9Section 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 Workplace Safety and Insurance Act, 1997 (“WSIB”). Section 61(2) provides an exception when the person elects to opt out of the WSIB benefits to pursue a tort action.
10An election form from the WSIB dated November 9, 2020 indicates that the applicant was injured in a workplace accident on July 29, 2020 and that he elected to claim WSIB benefits.
11A letter dated November 18, 2020 indicates that his claim for WSIB benefits was accepted. A letter dated January 20, 2021 indicates that he was entitled to loss of earnings benefits and the calculation of the weekly amount to which he was entitled.
12There is no evidence that the exception in section 61(2) applies – by email dated December 6, 2023 the applicant’s then-representative advised that there was no tort action commenced.
13The evidence before me indicates that the applicant is not entitled to claim accident benefits for injuries sustained as a result of the accident, because he was entitled to receive WSIB benefits, pursuant to section 61 of the Schedule.
ORDER
14The applicant is barred from pursuing his claim for accident benefits pursuant to section 61 of the Schedule.
15The application is dismissed. The Tribunal will vacate the hearing date for the substantive issues.
Released: May 7, 2024
Kate Grieves
Adjudicator