Mohammed Mahdi v. TD General Insurance Company, 2025 CanLII 81415

Citation: Mahdi v. TD General Insurance Company, 2025 ONLAT 24-007666/AABS

Licence Appeal Tribunal File Number: 24-007666/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 Mahdi

Applicant

and

TD General Insurance Company

Respondent

DECISION

ADJUDICATORS:

Tami Cogan

Trina Morissette

APPEARANCES:

For the Applicant:

Mobina Khan, Counsel

For the Respondent:

Wendy Breuer, Counsel

Claudia Cortell, Paralegal

Heard by Videoconference:

June 16, 2025

OVERVIEW

1Mohammed Mahdi, the applicant, was involved in an automobile accident on August 3, 2022, 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 the respondent, TD General Insurance Company, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the Tribunal) for resolution of the dispute.

PRELIMINARY ISSUE IN DISPUTE

2Is the applicant barred under section 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, S.O. 1997, c.16, Sched. A (WSIA)?

3At the start of the hearing, the respondent withdrew the second preliminary issue that had been raised at the case conference, which alleged that the applicant wilfully made a material misrepresentation when he applied for accident benefits.

SUBSTANTIVE ISSUES IN DISPUTE

4The substantive issues in dispute are:

i. Is the applicant entitled to attendant care benefits in the amount of $585.34 per month, from October 1, 2022, to October 31, 2022?

ii. Is the applicant entitled to attendant care benefits in the amount of $167.24 per month, from November 1, 2022, to November 7, 2022?

iii. Is the applicant entitled to medical/rehabilitation services, proposed by FunctionAbility Rehabilitation Centre in a treatment plan/OCF-18 (plan), as follows:

1. $1,140.72 for motor and living skills therapy proposed in a plan dated October 19, 2022?

2. $1,455.16 for rehabilitation services proposed in a plan dated November 3, 2022; and

3. $1,744.51 for optometric services proposed in a plan dated November 24, 2022;

iv. Is the applicant entitled to $1,996.00 for chiropractic services, proposed by Optimo Clinic in a plan dated October 11, 2022?

v. Is the applicant entitled to $412.77 for home care and medical supplies, proposed in a plan dated November 23, 2022?

vi. Is the applicant entitled to $45.00 for ambulance services, proposed in a plan dated November 7, 2022?

vii. Is the respondent liable to pay an award under section 10 of Regulation 664 because it unreasonably withheld or delayed payments to the applicant?

viii. Is the applicant entitled to interest on any overdue payment of benefits?

5At the start of the hearing, the applicant withdrew his claim for income replacement benefits.

RESULT

6We find the 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.

ANALYSIS

The applicant is statue barred from pursuing his claim for accident benefits pursuant to s. 61 of the Schedule

7Section 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. The applicant is barred from claiming accident benefits unless he can prove that the exception described in section 61(2) applies. He must establish that he has elected to bring an action in accordance with section 30 of the WSIA, and that this election was not made primarily for the purpose of claiming statutory accident benefits.

8The applicant submits that his Workplace Safety and Insurance Board (WSIB) benefits claim was approved, and benefits were received, however, he elected to withdraw his WSIB claim pursuant to section 61(2) of the Schedule. He relies on a letter dated November 7, 2022, from his counsel to WSIB confirming that he decided to opt out of his WSIB claim to pursue his insurance claim for accident benefits. The applicant also relies on the Assignment of Workplace Safety & Insurance Benefits executed by the applicant and the respondent on November 25, 2022, and October 4, 2022, respectively. The applicant also relies on a Statement of Claim he filed electronically with the Ontario Superior Court of Justice as evidence of his intention to pursue his tort claim.

9The respondent submits that the application should be barred pursuant to section 61(1) of the Schedule as the applicant has not provided evidence that he had a bona fide intention to seek relief through a tort action. The respondent submits that the applicant had long affirmed to WSIB and others that the accident occurred during employment and received WSIB accordingly. The respondent submits that despite the Statement of Claim being filed on August 6, 2024, the applicant served it only hours before the hearing, namely on Friday, June 13, 2025 at 4:05 p.m. The respondent submits that this Statement of Claim should be given little weight as:

i. It was not served on the respondent nor was it filed with the Tribunal until a few hours before the hearing;

ii. The Statement of Claim was filed electronically with the Superior Court of Ontario three days after the expiration of the 2-year limitation period;

iii. The applicant has provided no evidence that it was served on the defendants;

iv. The action describes a collision with another vehicle when all other evidence submitted (including the WSIB file, the police file, the Application for Accident Benefits/ OCF-1, and the Disability Certificate/OCF-3) denote a single-vehicle accident; and

v. Two of the defendants in the tort action are identified as “John Doe” and “John Doe 2” despite the applicant having over two years to investigate and identify these individuals.

10There is no dispute between the parties that the accident occurred in the course of the applicant’s employment. There is also no dispute that the applicant initially received WSIB benefits. The question before the Tribunal on this preliminary issue is whether the applicant properly exercised his option to withdraw his WSIB claim pursuant to section 61(2) of the Schedule.

11The applicant produced a letter from his counsel to the WSIB dated November 7, 2022, advising that he had “decided to opt out of his WSIB claim and continue with the accident benefit claim”. (A second identical letter dated December 2, 2022, was subsequently sent to the WSIB). In a response dated December 23, 2022, the WSIB wrote to the applicant confirming its receipt of the applicant’s intention to withdraw but noted that once an individual elects to claim WSIB benefits, the individual does not have a unilateral right to withdraw his WSIB claim. The WSIB did not formally terminate the benefits at that time and noted that it is subrogated to any rights of action that the applicant may have against third parties and is solely entitled to determine whether or not to commence, continue or abandon an action.

12The applicant was advised by WSIB that the discretion to permit the worker to revoke his election and remit to him the right to sue on “terms that are just”, rests with WSIB. The applicant was directed to:

i. Confirm his decision to withdraw his WSIB claim in order to pursue the lawsuit; and

ii. Sign a repayment agreement to WSIB for all benefits he received.

13The applicant did not present evidence to the Tribunal that he fulfilled these terms. We note that the applicant entered into evidence a “Re-Election Agreement”, signed by both the applicant and his counsel which appears to have been sent to the WSIB. However, no repayment agreement with the terms raised in the WSIB’s response of December 23, 2022, was submitted into evidence. We also note that the Assignment of Workplace Safety & Insurance Benefits, signed by both the applicant and the respondent, is incomplete because the section requiring the WSIB’s consent was left blank. Without evidence to demonstrate that the WSIB has formally terminated the benefit, we find the applicant has not provided persuasive evidence that he has properly withdrawn his WSIB claim and/or obtained the required consent from the WSIB for his withdrawal to be complete.

14We assign little weight to the Statement of Claim submitted by the applicant as evidence of a tort claim. The claim was filed after the two-year limitation period, there is no evidence that the claim was served on the defendants, or that “John Doe” and “John Doe 2” were successfully identified. The applicant has also not directed the Tribunal to any subsequent efforts to pursue the tort claim. A copy of this claim was also not provided to the respondent or filed with the Tribunal within the required timeframe outlined in Rule 9.4.3 of the Licence Appeal Tribunal Rules, 2023 despite being electronically filed with the Superior Court of Justice approximately 10 months prior.

15We 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.

16For these reasons, the applicant is not entitled to claim accident benefits from the respondent for injuries he sustained as a result of the accident as he failed to meet his onus of proving on a balance of probabilities that his re-election to sue in tort was not made for the primary purpose of receiving benefits under the Schedule.

SUBSTANTIVE ISSUES IN DISPUTE

17Whereas we find the applicant is not entitled to accident benefits, it is not necessary to address the substantive issues in dispute.

ORDER

18The 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.

19The application is dismissed.