Chandrashan Umbargalsigamany v. Primmum Insurance Company, 2025 CanLII 132427

Licence Appeal Tribunal File Number: 25-005668/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:

Chandrashan Umbargalsigamany

Applicant

and

Primmum Insurance Company

Respondent

PRELIMINARY ISSUE HEARING DECISION AND ORDER

ADJUDICATOR: Tami Cogan

APPEARANCES:

For the Applicant: Ramendeep Minhas, Counsel

For the Respondent: Matthew Nieuwland, Counsel

HEARD: By way of written submissions

OVERVIEW

1Chandrashan Umbargalsigamany, the applicant, was involved in an automobile accident on January 8, 2025, 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, Primmum Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.

2At the time of the accident the applicant was operating a commercial motor vehicle owned by RCAP Leasing Inc. and leased to 11765515 Canada LTD. The applicant rear-ended a second commercial motor vehicle, pushing it into the rear of a third vehicle.

PRELIMINARY ISSUE IN DISPUTE

3The preliminary issue to be decided is:

1. Is the applicant barred under s. 61 of the Schedule from pursuing their claim for accident benefits at the Tribunal due to alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c.16, Sched. A (“WSIA”)?

RESULT

4The applicant is statute-barred from proceeding with his application.

ANALYSIS

Law

5Section 61(1) of the Schedule provides that an insurer is not required to pay accident benefits to an insured person who is entitled to receive benefits under the WSIA or any other workers’ compensation law or plan. The applicant is barred from claiming accident benefits unless he can prove that the exception described in section 61(2) applies; meaning that he must establish that he has elected to bring a tort action in accordance with s. 30 of the WSIA, and that this election was not made primarily for the purpose of claiming statutory accident benefits.

Background and parties’ positions

6The respondent submits that the accident occurred during the course of the applicant’s employment, which requires him to pursue benefits under the WSIA. Further, the applicant cannot claim an exemption pursuant to s. 61(2) of the Schedule because he was at fault for the accident and there is no viable tort action. Both the applicant and the second vehicle are classified as Schedule 1, and a tort action is therefore barred pursuant to s. 28 of the WSIA. For this reason, the applicant’s election to waive benefits under the WSIA was made primarily to claim accident benefits. The respondent submits this is supported by the applicant not having initiated a Statement of Claim in a tort action.

7The respondent seeks an adverse inference be drawn due to the lack of document production in accordance with the case conference report and order dated August 8, 2025. The inference being that the documents would be contrary to the applicant’s case.

8The applicant submits that the applicant was an independent contractor at the time of the accident, working under his wife’s corporation 16269290 Canada Inc. I note the bank statements of the applicant in evidence clearly indicate the applicant was receiving funds; however, proof of the source of the income and employment or business records are not in evidence.

9Also, the applicant submits the contractor he worked with did not maintain proper Workplace Safety and Insurance Board (“WSIB”) coverage, therefore, no WSIB entitlement exists. The only corporation identified by the applicant is his wife’s corporation. The applicant has submitted a Certificate of Incorporation for 16269290 Canada Inc. dated August 6, 2024, with Rupamathy Chandrahasan, the applicant’s wife, listed as the sole director. I note that I have not been directed to evidence that supports the corporation did not have WSIB coverage.

10The applicant submits he was working “informally” for 11765515 Canada Ltd. at the time of the accident. The Articles of Incorporation are not in evidence; however, both 11765515 Canada Ltd. and 16269290 Canada Inc. have been referred to as “VCare Transport” in auto insurance policy documents. The applicant has not led evidence as to the WSIB status of 11765515 Canada Ltd. at the time of the accident. I note the screen capture submitted into evidence which indicates 11765515 Canada Ltd. is “not eligible for a clearance certificate” is undated.

11The applicant relies on an Assignment of Workplace Safety & Insurance Benefits dated March 6, 2025, which indicates the applicant “has decided to sue, and there is a dispute with the automobile insurer over whether it has to pay benefits.” This document identifies the applicant’s occupation as a truck driver; “16269290” as the applicant’s employer; the business type as “Trucking-Transportation”, which is a Schedule 1 employer. I have not been directed to evidence that supports the election was accepted by the WSIB, or that the applicant was denied a WSIB claim.

12The applicant further submits that there is no evidence of acceptance or determination by the WSIB of a claim by the applicant, and therefore s. 61(1) of the Schedule is not triggered. Also, the applicant submits that the onus is on the respondent to prove the applicant has entitlement to WSIB coverage, and that in the absence of evidence of WSIB entitlement, s. 61(1) does not apply.

13I disagree with the applicant, and I find that an absence of evidence cannot be relied upon as proof that the applicant does not have entitlement to WSIB. It would be unjust for a party to simply withhold evidence and claim the opposing party has not met their burden. For the respondent to prove the applicant has entitlement to WSIB coverage it is entirely limited in proving its case based on the documentation provided by the applicant.

14Further, it is the applicant’s onus to prove entitlement to Accident Benefits. In the case at hand, due to the accident having happened during the course of employment (or self-employment) this includes providing evidence that WSIB is not available.

15I agree with the respondent and find an adverse inference for a lack of document production is appropriate. During the case conference on August 7, 2025, the applicant consented to provide the respondent with the following documents:

i. The claimant’s employment file, contract, job description, work logs, or timesheets confirming they were acting in the course of employment at the time of the accident.

ii. WSIB registration and coverage details for the claimant’s employer, including account records or confirmation letters, if available;

iii. The claimant’s complete WSIB claim file, including Form 6, Form 7, election form (WSIA30), assignment form, and all WSIB correspondence, if available;

iv. Records of WSIB benefits approved or paid to the claimant (e.g., healthcare, loss of earnings), if available;

v. Employment and WSIB records for the other driver, including their employer’s WSIB registration and claim file, to confirm WSIB coverage, if available;

vi. The claimant’s Statement of Claim, if and when issued; and

vii. Employment files from one year pre-accident to the date of the case conference.

16The respondent submits the applicant did not produce proof of requests having been made, nor the employment records from Vcare Transport, WSIB registration and coverage details for Vcare Transport, nor the complete WSIB claim file, including claims investigations.

17I note that the applicant submitted a letter of request for the employment file made to VCare Transport (11765515 Canada Ltd.), however, proof of service was not submitted. Also, given that 16269290 Canada Inc. is the applicant’s wife’s corporation, these productions should have been readily available. I find these documents are highly relevant to these proceedings, as well as the WSIB claim file with claims investigation. Given that the applicant did file a WSIB Assignment, I am satisfied that a WSIB file exists. As a result of not producing documentation, I find an adverse inference against the applicant, that the documentation was not produced because it would be contrary to the applicant’s claim.

18I find the most persuasive evidence before me is the hospital record from the United Health Network which indicates the applicant was covered by WSIB as of March 20, 2025. I find this further supports that a WSIB file exists because the hospital would have invoiced WSIB for services provided to the applicant, and there would have been either correspondence denying payment to the hospital, or confirmation of payment. I find that the evidence supports the applicant had access to benefits under WSIB. Therefore, he must prove that the exception described in section 61(2) applies; meaning that he must establish that he has elected to bring a tort action in accordance with s. 30 of the WSIA, and that this election was not made primarily for the purpose of claiming statutory accident benefits.

19In the alternative, the applicant submits that a tort action was pursued within 60 days of the accident.

20The parties agree the applicant’s vehicle and the second vehicle were categorized as a Schedule 1 pursuant to the WSIA and Ontario Regulation 175/98:

WSIA

Section 2(1)

“Schedule 1 employer” means an employer in a class or group of industries included in Schedule 1 but does not include an employer who is a Schedule 2 employer.

O. Reg. 175/98

Schedule 1, Industries, Part I - Classes of Industries

Class F — Transportation and Warehousing:

Industries engaged in transporting passengers or goods, warehousing or storing goods, and providing services incidental to transportation.

21I am not persuaded by the applicant’s submissions that s. 28(1) of the WSIA does not apply. The legislation is clear (emphasis added):

WSIA

Section 28 (1)

A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. Any Schedule 1 employer.

2. A director, executive officer or worker employed by any Schedule 1 employer.

22The applicant further submits the accident was caused by the other drivers, and the driver of the third vehicle was not a Schedule 1 worker, therefore a viable tort action exists. I note the Motor Vehicle Collision Report (MVCR) clearly indicates that the applicant failed to stop for stationary traffic. I find the MVCR does not support the applicant’s submission that the other drivers were at fault.

23I do not accept the applicant’s submission that the tort recovery includes potential liability related to vehicle maintenance and negligence by others because a statement of claim is not in evidence.

24The applicant has submitted that near the time the WSIB Assignment was filed, letters from the applicant’s counsel to the other drivers indicating an intention to commence legal actions were sent; however, that was in March 2025, approximately 10 months ago, and no further evidence has been submitted to support that legal action is being pursued, including proof that the letters were served or delivered to the intended recipients.

25I therefore find that the applicant has not demonstrated a bona fide intention to pursue his tort claim as required, pursuant to s.30 of the WSIA, and find that he does not fall within the exception found at section 61(2) of the Schedule.

26Therefore, the applicant is not entitled to claim accident benefits from the respondent for injuries he sustained as a result of the accident because he has not met his onus of proving on a balance of probabilities that his election to sue in tort was not made for the primary purpose of receiving benefits under the Schedule.

CONCLUSION AND ORDER

27The applicant is barred under section 61 of the Schedule from pursuing his claim for accident benefits at the Tribunal due to entitlement to benefits under the WSIA.