Licence Appeal Tribunal File Number: 24-012434/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:
Mohsin Raza
Applicant
and
XL Specialty Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Syed M. Raza, Counsel
For the Respondent: Jason Frost, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohsin Raza, the applicant, was involved in an automobile accident on February 9, 2023 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 certain benefits by XL Specialty 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 at this hearing is:
i. 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 any other workers compensation plan?
Result
3I find that the applicant is statute-barred under s. 61 of the Schedule.
Procedural Issues
Respondent’s request re: weight assigned to the applicant’s affidavit
4As part of his preliminary issue hearing submissions and evidence, the applicant included his affidavit dated February 12, 2025. The respondent requests that no weight be assigned to this affidavit. It argues that the Case Conference Report and Order dated January 16, 2025 confirmed that affidavits were not permitted, and that it cannot now question the applicant on the affidavit at this late stage. The respondent further submits that the affidavit contains false and unsubstantiated statements.
5The respondent’s request to assign no weight to the applicant’s affidavit is denied. From my review of the applicant’s affidavit, it contains statements relating to the authenticity of the employment agreement obtained by the respondent. For the most part, these statements duplicate the statements contained in the applicant’s preliminary issue hearing submissions, or expand on the reasons. The statements contained in the affidavit are directly relevant to the issue of whether the applicant’s employment agreement, a key piece of evidence, should be considered at this hearing. Section 15(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. 22 allows for the admission of any evidence relevant to the subject matter of the proceeding that is not otherwise privileged or statutorily inadmissible. I find the applicant’s affidavit to be directly relevant to the admissibility of the employment agreement and as such, it will be considered as part of the applicant’s evidence.
Applicant’s request to exclude the employment contract
6The applicant’s request to exclude his employment contract as evidence in this preliminary issue hearing is denied.
7The applicant’s employment contract with Day to Day Logistics was one of the documents ordered to be produced at the case conference held on January 14, 2025. The applicant’s counsel requested his employment file from Day to Day, and was referred to an adjuster, Ms. Guerette, by the company. This email exchange was forwarded to the respondent, and the applicant’s counsel requested that if the respondent ended up receiving the document, that it provide it “urgently”. The respondent subsequently received the employment contract from Ms. Guerette and forwarded it to the applicant’s counsel.
8The applicant subsequently brought a motion requesting a number of orders, including that the employment contract be excluded as evidence in this preliminary issue hearing. The ruling on the admissibility of the document was deferred to be heard at this preliminary issue hearing.
9The applicant challenges the validity and authenticity of the employment contract provided by the respondent. He submits that the copy of the contract appears to have been cut and pasted, does not have the applicant’s initials on any pages, the attached schedule to the contract was not initialled or signed, that his signatures appear to be substantially different, and that an original copy of the document was not provided by the respondent. The applicant further argues that the contract he had signed had his initials on every page.
10I find that the applicant has not established that the employment agreement should be excluded. From my review of the document, I do not agree that it is “clearly demonstrated” that different pages have been cut and pasted together. Rather, the respondent has submitted into evidence email correspondence indicating that the same pdf document received from Ms. Guerette, was forwarded to the applicant’s counsel. Further, although the applicant argues that his signature appears to be different on the document, the respondent has submitted evidence of examples of the applicant’s signature where they have appeared to be different.
11Finally, although the applicant argues that the copy of the employment contract obtained by the respondent was inauthentic, tampered with or counterfeited, the applicant has not produced his own copy of the employment agreement. I agree with the respondent that to the extent the applicant is arguing that the version of the employment agreement he signed is different from the version provided to the respondent, the applicant could have produced his copy of the agreement to show the purported changes. No such copy was submitted by the applicant.
12As such, I find that the applicant has not established that the employment agreement should be excluded as evidence in this hearing.
Background
13The applicant was involved in a motor vehicle accident on February 9, 2023. He was employed as a truck driver by Day to Day Logistics (the “company”), and was injured when the truck being driven by his co-driver rear-ended another transport truck. The company is a Schedule 1 employer required to maintain WSIB coverage for its workers. The applicant’s employment agreement was a “Contractor Services Agreement” (the “contract”) which structured the employment relationship as an “independent contractor” relationship.
14Article 4.6 of the contract stated that the applicant would not be participating in any pension, health benefit, vacation or sick pay plan, which may be available to employees of the company. Rather, Article 4.6.1 stated that the company would provide the applicant with workplace/travel insurance with NAL Insurance, in the event of an accident. Article 4.6.1 further stated that the applicant may “ONLY claim any workplace injuries or accidents through the NAL Insurance provided and cannot go towards the Company for any additional compensation or remuneration for injuries sustained while driving.”
15After the February 9, 2023 accident the applicant applied to NAL Insurance for accident benefits, and as of October 9, 2024 had received $71,889.83 in benefits from NAL including $40,000 in income replacement benefits, $26,157.47 in out of province medical expenses and $5,732.36 in chiropractor, massage and attendant care expenses. The applicant also applied to his personal automobile insurer for accident benefits, but the respondent subsequently accepted priority for the applicant’s claim, since the respondent insured the work vehicle involved in the accident. The applicant further filed a Statement of Claim against the driver of the truck and the company.
16The respondent submits that pursuant to s. 61(1) of the Schedule, it is not required to pay any accident benefits to the applicant, since he is entitled to receive accident benefits from another “workers’ compensation plan”, namely, the WSIB-alternative workers’ compensation plan in place with NAL Insurance. The fact that the applicant subsequently filed a tort action is irrelevant for the purposes of s. 61(2) of the Schedule, since the applicant did not make a Workplace Safety and Insurance Act, 1997 (“WSIA”) election given that the WSIA is not applicable in the present case.
17The applicant argues that he is not barred under s. 61 from pursuing accident benefits from the respondent. He submits that the NAL policy in place does not meet the definition of a workers’ compensation plan, and that it is not a WSIB alternative. Given that he elected to bring a tort action against the driver and company and that the WSIA is not applicable, the applicant argues that s. 61(2) is engaged and the bar against claiming benefits from the respondent in s. 61(1) does not apply.
ANALYSIS
Law - Section 61
18Section 61(1) of the Schedule states that insurers are not required to pay accident benefits under the Schedule to those who are entitled to claim workers’ compensation benefits under the WSIA or any other workers’ compensation law or plan.
19Section 61(2) provides a limited exception to the general rule in s. 61(1). 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 under s. 30 of the WSIA was not made primarily for the purpose of claiming accident benefits.
The applicant is barred pursuant to s. 61 of the Schedule
20I find that the policy in place with NAL Insurance is a “workers’ compensation plan” as contemplated in s. 61(1) of the Schedule. Since the applicant was entitled to receive benefits under this plan, s. 61 is applicable and the respondent is not required to pay accident benefits to the applicant.
21Although the applicant argues that the employment contract and NAL policy do not contain the explicit wording “workers’ compensation plan”, in my view the wording in Article s. 4.6.1 identifies that insurance plan as a WSIA-alternative plan. The policy is identified as “Workplace/Travel Health Insurance to the Contractor in the event of an accident”. Further, the “contractor may ONLY claim any workplace injuries or accidents through the NAL Insurance provided and cannot go towards the Company for any compensation or remuneration for injuries sustained while driving.” The respondent has also submitted evidence identifying NAL Insurance as “The Leading provider of WSIB/CNESST Coverage in Canada”.
22The applicant argues that the NAL policy is instead a disability policy for “Fleet Accident” and that it only covers certain benefits, but not all of the benefits that would be available under a workers’ compensation plan. For example, the applicant submits that the NAL policy does not cover the cost of any assessment.
23However, from my review of the NAL policy I agree with the respondent that the insurance policy is an alternative workers’ compensation plan. The applicant has received income replacement benefits, chiropractor, massage and attendant care expenses from NAL all totalling $71,889.83. Although the applicant argues that the NAL policy does not cover the cost of assessments, the respondent has submitted evidence that the NAL policy also covers assessment fees of up to $2,500.00 per report. As such I find that the evidence establishes that the NAL policy provides benefits similar in scope to the WSIA and the Schedule and that the NAL policy was intended to be a WSIA-alternative workers’ compensation plan.
24The applicant further argues that the wording in Article 4.6.1, that he can “only claim any workplace injuries or accidents through the NAL Insurance provided and cannot go towards the Company for any additional compensation” cannot substitute the legislative regime. He submits that the Schedule is consumer benefits legislation and that the Insurance Act cannot be superseded by language in an employment contract.
25I am not persuaded by the applicant’s argument. In my view, the wording in the employment contract and putting in place of the NAL policy is not an attempt to supersede the legislative regime set out in the Schedule. Rather, s. 61(1) expressly contemplates alternative workers’ compensation plans. To the extent that a claimant is entitled to receive benefits under such an alternative plan, an insurer is not required to pay accident benefits pursuant to the Schedule. Given that the applicant was entitled to benefits under the NAL policy, and did receive such benefits, he is barred from pursuing his claim for accident benefits from the respondent.
26I further find that s. 61(2) of the Schedule is not applicable in these circumstances. While s. 61(2) provides a limited exception to s. 61(1) when injured workers who elect to seek damages in tort for their injuries provide an election under s. 30 of the WSIA, the applicant did not in fact make an election under s. 30 of the WSIA. He was not covered by the WSIA, but rather, was covered by an alternative workers’ compensation plan.
Order
27I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with his application for accident benefits at the Tribunal. As a result, the application is dismissed and the substantive hearing is vacated.
Released: April 23, 2025
__________________________
Ulana Pahuta
Adjudicator