Licence Appeal Tribunal File Number: 24-009555/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:
Mohammed Ahmed Uddin
Applicant
and
Northbridge Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Syed M. Raza, Counsel
For the Respondent: Daniel Himelfarb, Counsel
HEARD: By way of written submissions
OVERVIEW
1Mohammed Ahmed Uddin, the applicant, was involved in an automobile accident on April 18, 2023 and sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (the “Schedule”). The applicant was denied certain benefits by the respondent, Northbridge Insurance Company, 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 the Workplace Safety and Insurance Act, 1997?
RESULT
3I find that the applicant is statute-barred under s. 61 of the Schedule.
ANALYSIS
Law - Section 61
4Section 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 Workplace Safety and Insurance Act, 1997 (“WSIA”). Section 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 was not made primarily for the purpose of claiming accident benefits.
Background
5The applicant was involved in a motor vehicle accident on April 18, 2023 during the course of his employment as a semi-trailer truck driver, when the load in his trailer hit the top of the roof and scattered on the road. The truck swerved and then stopped in a ditch. On April 28, 2023 the applicant reported the accident to the Workplace Safety and Insurance Board. On May 2, 2023 the Board approved the applicant’s claim for WSIA benefits and the applicant began to receive benefit payments through the WSIA.
6Subsequently, on August 22, 2023, the applicant submitted an Application for Accident Benefits (“OCF-1”) to the respondent. On August 28, 2023 the applicant provided the respondent with a signed and approved assignment of Workplace Safety and Insurance Benefits (“WSIB”) form. The applicant also filed a Statement of Claim for the tort action on May 28, 2024.
7The respondent submits that the applicant has not made a proper election under s. 61(2) of the Schedule. It argues that the evidence establishes that the applicant opted out of WSIB for the primary purpose of obtaining accident benefits, and not to pursue a tort claim. It relies on the applicant’s testimony at his Examination Under Oath (“EUO”) on April 8, 2024 where he stated that once the WSIB had stopped paying benefits, he “had to go for insurance”. The respondent further points to the fact that at the time of the EUO, the applicant had not started a tort action and no parties were put on notice of a tort claim.
8The applicant submits that his EUO establishes that he had wanted to pursue accident benefits under the Schedule from the very beginning of his claim. He points to his testimony at the EUO where he states that his employer insisted that he apply for WSIB, despite his repeated requests to “go through insurance” instead. The applicant argues that he retained his counsel to pursue his accident benefits claim, as well as his tort claim against his employer. His Statement of Claim was issued only 11 months after the accident, and the applicant argues that providing a WSIB election to claim accident benefits under the Schedule, is evidence of a clear intention to pursue a tort claim as well.
Section 61 and the applicant’s primary purpose
9I find that the applicant did elect out of the WSIA for the primary purpose of claiming accident benefits.
10When considering a claimant’s “primary purpose” in seeking an election under s. 61(2), the following principles set out in 16-002364 v The Personal Insurance Company, 2017 CanLII 148445 (ON LAT) are of assistance:
i. It is the applicant’s obligation to prove that their election for tort and accident benefits falls within the exception of s. 61 of the Schedule and this determination is largely fact driven;
ii. The relevant point of time when determining the applicant’s “primary purpose” is at the time of the election;
iii. Determining the “primary purpose” involves determining the applicant’s mindset at the time of the election and, therefore, the test is inherently a subjective one to consider if the choice was made in good faith;
iv. Although the test is subjective, the Tribunal must consider “objective” factors in evaluating the applicant’s motives. These factors include the strength of the court action, the steps taken to pursue the claim, and any advantages that might have led the applicant to choose accident benefits over WSIB benefits. Action or inaction since the election and the strength of the action can shed light on the true mindset of the applicant. Challenges to successfully establishing liability in tort are also a factor to consider; and
v. The election must be a “real choice” as opposed to forum shopping on the question of disabilities although there may be circumstances where a bona fide re-election can be made after a final refusal for benefits by the WSIB.
11When applying the principles set out in 16-002364 v The Personal Insurance, I find that the evidence establishes that the applicant’s election was made for the primary purpose of claiming accident benefits. At the EUO the applicant testified that he felt that his expenses were not being covered through WSIB “properly” and that WSIB had stopped paying him benefits. As such, the applicant elected to apply to motor vehicle insurance instead. When discussing his reasons behind the election, the applicant did not identify the tort action as the reason for the switch from WSIB, but rather, going for “insurance benefits”.
12I further am not persuaded by the applicant’s argument that his employer had insisted that he apply for WSIB, and that he had instead wanted to apply through insurance from the outset. Although in his submissions the applicant points to his EUO testimony stating that he had always wanted “go for my insurance benefits”, in my view, this is persuasive evidence that the applicant’s primary purpose was to pursue accident benefits through his insurer. It is not compelling evidence of an intention to pursue a tort action. This clearly falls outside of the limited exception in s. 61(2) which expressly hold that an election not be made primarily for the purpose of claiming accident benefits.
13In terms of the applicant’s tort claim, at the time of the EUO in April 2024 the applicant confirmed that he had not yet started a tort action or put parties on notice of a tort claim. When asked if he was planning on starting a lawsuit, he stated that “you can ask my lawyer”. The Statement of Claim was not filed until after the EUO questioning, on May 28, 2024. I do not agree with the applicant’s argument that simply providing an election to claim accident benefits under the Schedule, is evidence of a clear intention to pursue a tort claim as well. The applicant argues that he did not have legal representation until August 2023, and that as soon as he retained counsel, he elected to opt out of WSIB. However, in my view, this alone is not persuasive evidence of an intention to pursue a tort claim at the time of the election. Rather, at the time counsel was retained in August 2023, the applicant filed his OCF-1 for accident benefits. No evidence has been provided by the applicant as to what steps he had taken to pursue his tort claim once he retained counsel, at the time of the election, or at any point prior to May 28, 2024.
14The applicant cites Tribunal decision J.S. v Aviva General Insurance, 2019 CanLII 130360 (ONLAT) to argue that where there is a WSIB denial of benefits for any reason, s. 61 is inapplicable, as the Schedule is consumer-protection legislation. However, I find that this decision is distinguishable, as in J.S., the Tribunal held that the insurer had not established that the claimant was an employee when the accident occurred or that he was entitled to benefits under the WSIA. This is not the case in the matter at hand, where the applicant was entitled to, and received, WSIB benefits.
15The applicant further cites 16-00915 v. Northbridge Personal Insurance Corporation 2019 CanLII 62158 (ONLAT) to argue that the respondent’s argument as to the weakness of the tort claim is without merit, since in 16-00915 the Tribunal found that the ultimate outcome of litigation is irrelevant when considering s. 61(2) of the Schedule. However, I similarly find that this case is distinguishable. In 16-00915 the Tribunal found ample evidence that at the time of the WSIB election the claimant was actively pursuing a civil case. He had joined a class action lawsuit, and evidence was led of the steps and research he had taken to pursue the civil claim at the time of the election. While ultimately the class action lawsuit was dismissed, the Tribunal held that this did not negate the good faith of the election at the time it was made. In the present matter, the applicant has not led any such evidence of the steps taken to pursue his tort claim at the time of his election.
16As such, I am not persuaded that the applicant had a bona fide intention to commence a tort action at the time of his election, and find that the applicant did elect out of the WSIB for the primary purpose of claiming accident benefits.
ORDER
17I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with his application for accident benefits at the Tribunal.
18The application is dismissed, and the substantive hearing is vacated.
Released: May 6, 2025
Ulana Pahuta
Adjudicator