Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 24-011487/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:
Pirasath Suberamaniam
Applicant
and
TD General Insurance Company
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Melanie Malach
APPEARANCES:
For the Applicant:
Aman Chopra, Counsel
For the Respondent:
Wendy Breuer, Counsel
Heard:
By Way of Written Submissions
OVERVIEW
1Pirasath Suberamaniam (the “applicant”) was involved in an accident on May 17, 2021, 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 TD General Insurance Company (the “respondent”) and applied to the Licence Appeal Tribunal – Automobile Accident Benefits Service (the “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 his claim for accident benefits at the Tribunal due to alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997?
RESULT
3The applicant is statute-barred under s. 61 of the Schedule.
ANALYSIS
Law – Section 61
4Section 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 Workplace Safety and Insurance Act, 1997 (“WSIA”).
5Section 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.
6Section 61(5) states that, despite section (1), if there is a dispute about whether subsection (1) applies to a person, the insurer shall pay full benefits to the person under the Schedule pending resolution of the dispute if, (a) the person makes an assignment to the insurer of any benefits under any worker’s compensation law or plan to which he or she is or may become entitled as a result of the accident; and (b) the administrator or board responsible for the administration of the worker’s compensation law or plan approves the assignment.
7I find that the following principles set out in 16-002364 v The Personal Insurance Company, 2017 CanLII 148445 (ON LAT) (“16-002364 v The Personal Insurance”) are persuasive and helpful in determining the “primary purpose” of an election under s. 61(2):
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 to 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.
8Section 13(1) of the WSIA states that a worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
Background
9The applicant was involved in a motor vehicle accident on May 17, 2021.
10At the time of the accident, the applicant worked as a truck driver for a company called Transporter. Transporter was a subcontractor to another company called Realm Transport. Transporter is a Schedule 1 employer, which falls under category Class F-Transportation and Warehousing as per O. Reg. 175/98. The respondent submits that the applicant is a Schedule 1 employee as defined by O. Reg. 175/98. The applicant submits that he is a sub-contractor of Transporter, not an employee.
11When the accident occurred, the applicant was driving a 2016 Kenworth “Reefer” Straight Truck, owned and insured by his employer Transporter. On the day of the accident, the applicant began work at 5:00 a.m. The accident occurred two hours and 45 minutes later, at 7:45 a.m. The applicant had dropped off a load on Airport Road and was on route to Apotex, a company which he regularly visited, to see if there was a load to pick up.
12After the subject accident, the applicant submitted a completed Application for Accident Benefits (“OCF-1”) to the respondent on June 1, 2021.
13On October 20, 2021, the applicant provided notice of his intention to initiate a tort claim against the at-fault party.
14However, on October 5, 2022, the respondent wrote to the applicant requesting a confirmation of coverage under the Workplace Safety and Insurance Board (“WSIB”). The letter advises that the applicant’s OCF-1 indicates that he was in the course of his employment at the time of the accident. It states that the applicant’s Statutory Declaration dated March 25, 2022, confirmed that he was in his employer’s vehicle at the time of the accident, a 2016 Kenworth, which is solely used for work purposes. The respondent advises that the applicant may be eligible for benefits under the WSIB. It requests that an Assignment of Workplace Safety & Insurance Benefits form be submitted.
15On November 4, 2022, the applicant provided the Assignment of the Workplace Safety and Insurance Benefits to the Respondent.
16On March 3, 2023, WSIB wrote to the applicant to confirm that “you do not wish to claim benefits under the Workplace Safety and Insurance Act.” The letter advises that “A worker who is injured while on the job has the right to claim benefits when the criteria for entitlement outline in Section 13 of the Act are met.”
17On May 16, 2023, the applicant issued his tort claim against the at-fault party.
Parties Positions
18The respondent submits that the applicant was in the course of his employment when the subject accident occurred, and he is therefore entitled to WSIB benefits and is precluded from claiming statutory accident benefits. The accident occurred at a time and in a location where the applicant would have been expected to be while engaged in work related activities. As a full-time truck driver, the accident occurred two hours and 45 minutes after he began work, while he was driving the employer’s transport truck. The applicant had dropped off a load and was going to see if there was additional work to be had at a location that he commonly attended. The applicant advised that it was common practice that not all pickups and deliveries would be scheduled in advance. The applicant’s workday had not ended as he had another job waiting for him at 1:00 or 2:00 p.m. The respondent further submits that the applicant had not dropped off his truck at the yard as he did at the end of every workday. The applicant reported the accident to his employer.
19The respondent submits that the applicant has not led evidence as to why he is not eligible for WSIB benefits. The respondent relies upon the Tribunal decision in Roble v. Chubb Insurance, 2024 CanLII 20690 (ON LAT), where the Tribunal held that the applicant had not led sufficient evidence as to why she was not eligible for WSIB benefits. The employer did not report the accident to the WSIB and the WSIB was only notified of the claim through the assignment process. The Tribunal held that this would not have automatically denied an applicant access to WSIB benefits.
20The respondent further submits that the applicant has not proven on a balance of probabilities that his election for tort and accident benefits falls within the exceptions of s. 61(2) of the Schedule. The respondent refers to the evidence of the applicant at his EUO, where he stated that it was his understanding that he was not working when the accident occurred, so he did not claim WSIB benefits. As such, in order to obtain treatment, he chose to pursue accident benefits. The respondent further submits that the applicant did not issue his tort claim until one day before the expiry of the two-year limitation period, which infers a lack of bona fide intention to pursue his tort claim at the time of his election of statutory accident benefits. The respondent submits that the applicant did not make any submissions nor provide any evidence with respect to the “viability and likelihood of success of his tort action nor to indicate that his choice was made in good faith to sue in tort.”
21The applicant submits that his decision to sue in tort and apply for accident benefits was based on a genuine belief that applying for WSIB benefits was not an option. He further submits that at the time of the accident, he was not an employee of Transporter, but was a subcontractor. The applicant submits that he was not working at the time of the accident. He states that he had completed a prior work-related delivery and was traveling towards another warehouse with the intention of potentially securing a new pickup from that location. He submits that he was not under any specific directive from Transporter and he retained full discretion over the use of his time until such point that a new pickup load became available. He therefore was not engaged in any specific work duty.
22The applicant submits that in assessing whether an election to commence a tort action was done for the sole purpose of claiming accident benefits, it is important to look at the chronology of events, the timing of when the tort action was commenced and the legitimacy of the tort action (see March v. Allstate Insurance Company of Canada, 2021 CanLII 85067 (ON LAT). The applicant submits that he has been consistent in communicating his intent to issue a tort claim against the at-fault driver as set out in his notice letter, dated October 20, 2021, and his Statement of Claim filed on May 16, 2023. He argues that the fact his claim was filed close to the expiration of the limitation period is legally irrelevant, as the law allows claims to be filed at any time within the two-year window. The applicant submits that the delay in submitting his Statement of Claim does not indicate a lack of intent to pursue a valid claim but is instead a common occurrence in complex personal injury cases.
Did the accident take place while the applicant was in the course of his employment?
23I find that the applicant was in the course of his employment at the time of the accident.
24I find the decision cited by the respondent from the Workplace Safety and Insurance Appeals Tribunal Decision No. 1178/09, 2009 ONWSIAT 1721, persuasive, in determining the appropriate test regarding “course of employment”. In reference to the WSIB guidelines, I find that the appropriate test regarding “course of employment” involves consideration of the circumstances of place, time and activity. Regarding place, I find that the applicant dropped off a load and was in the process of heading to another location which is reasonably expected while engaged in his work-related activities. Regarding time, I find that the applicant’s workday had not ended, and he was still driving his employer’s truck at the time of the accident. Regarding activity, driving to another location to see if there was additional work at another customer’s location was reasonably incidental to his employment. The applicant had the discretion to wait for the next load or to seek other work. I therefore find that the applicant was employed as a truck driver and was injured while driving his employer’s truck on the day of the accident. I find that the applicant was working at the time of the accident and therefore would fall under the WSIA framework.
25I further find that the company the applicant worked for, Transporter, is a Schedule 1 employer required to maintain WSIB coverage for its workers. While the applicant has not provided a copy of his employment agreement, his evidence is that he was an independent contractor, which is an employment relationship for which he would be covered under the WSIA. I find that the applicant has not provided any evidence in support of his claim that he would not be covered under the WSIA.
The applicant’s primary purpose
26I find that the applicant elected out of the WSIA for the primary purpose of claiming accident benefits.
27When 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 indicated that he believed he was not working at the time of the accident and therefore he could not claim benefits under the WSIA. As such, the applicant applied for statutory accident benefits. When discussing his reasons behind the election, the applicant did not identify the tort action as the reason for his application for accident benefits, but rather, that he believed that applying for benefits under the WSIA was not an option. Pursuant to s. 13(1) of the WSIA, it is clear that the applicant was entitled to benefits under the WSIA, but never applied for benefits or even advised the WSIB of the accident until the respondent requested confirmation of coverage. I therefore find that the applicant did not pursue benefits under the WSIA even though he was entitled to, and that his election was made for the primary purpose of claiming accident benefits.
28I find that the decision relied upon by the applicant, Thiyagarajah v. Economical Insurance, 2023 CanLII 15074 (ON LAT) (“Thiyagarajah”), is distinguishable on its facts. In Thiyagarajah, the applicant had sent a notice of intention to the at-fault driver prior to electing to receive accident benefits. The Tribunal found that this supported the applicant’s intention to pursue a court action. However, in Thiyagarajah the applicant subsequently received correspondence from his counsel addressing the hurdle to the tort claim, despite the applicant not being at fault for the accident. This led to the applicant subsequently reconsidering litigation.
29Here, in contrast to Thiyagarajah, the applicant did not send his notice of intention prior to, or even contemporaneously with, his application for accident benefits. I therefore am not persuaded that the applicant had a bona fide intention to commence a tort action when he applied for accident benefits. The applicant’s OCF-1 was submitted on June 1, 2021 and his notice of intention is dated October 20, 2021. In terms of the delay in filing a Statement of Claim, the applicant submits that the delay does not indicate a lack of intent to pursue a valid claim but is instead a common occurrence in complex personal injury cases. The applicant does not direct me to any hurdle to the tort claim, such as identified in Thiyagarajah. In the present case, the applicant has not made any submissions or provided any evidence as to the strength of his tort claim or any complexities of the case.
30As such, I find that the applicant did not pursue benefits under the WSIA because the primary purpose for his election was to claim accident benefits. I therefore find that the exception under s. 61(2) of the Schedule does not apply and the applicant is statute-barred under s. 61 of the Schedule from proceeding with his application for accident benefits at the Tribunal.
ORDER
31I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with his application for accident benefits at the Tribunal.
32The application is dismissed, and the substantive hearing is vacated.
Released: May 26, 2025
Melanie Malach
Adjudicator```