Licence Appeal Tribunal File Number: 25-002307/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:
Vimal K Khiara
Applicant
and
Chubb Insurance Company of Canada
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR: Ulana Pahuta
APPEARANCES:
For the Applicant: Mariana Slomyanski, Counsel
For the Respondent: Savneet Multani, Counsel
HEARD: By way of written submissions
OVERVIEW
1Vimal K Khiara, the applicant, was involved in an automobile accident on August 28, 2022 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, Chubb Insurance Company of Canada, and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“Tribunal”) for resolution of the dispute.
PRELIMINARY ISSUES IN DISPUTE
2The preliminary issues to be decided at this hearing are:
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 (“WSIA”)?
ii. Is the applicant barred from proceeding to a hearing as they failed to notify the respondent of the circumstances giving rise to a claim for benefits no later than the seventh day after the circumstances arose or as soon as practicable after that day?
RESULT
3I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with his accident benefits application.
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 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.
Overview
6The applicant was involved in a motor vehicle accident on August 28, 2022 while in the course of his employment. The applicant submits that he opted out of receiving Workers’ Safety and Insurance Benefits (“WSIB”), although he concedes he did not provide a formal election. Rather, the applicant states that pursuant to s. 30(6) of the WSIA, if an election is not made, then the worker is deemed to have elected not to receive WSIB benefits. Since an election was not made within three months of the accident, the applicant argues that he is deemed to have elected to pursue his accident benefits claim under the Schedule. The applicant argues that he elected out of WSIA benefits to pursue a tort claim. As evidence of his bona fide intention, he relies on his Statement of Claim which was issued on August 28, 2024, within the two-year statutory limitation period in Ontario.
7With respect to the second preliminary issue, the applicant does not dispute that he first notified the respondent of the accident on September 20, 2023, more than a year after the accident. However, he submits that he has a reasonable explanation for the delay. He argues that his back pain and other injuries were not realized until later. The applicant also points to the adjuster’s log notes which indicate that the applicant’s employer had not responded to the adjuster with respect to the request for an incident report. The applicant submits that given that his employer was not able to provide the proper documentation of the incident to the adjuster, the respondent was forced to conduct an Examination Under Oath (“EUO”) to gather more information. The applicant argues that it can be deduced from this that his employer had misled the applicant, causing the delay in filing his application.
8The respondent submits that the applicant did not have a bona fide intention to pursue a tort claim, as required by 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 points to the applicant’s testimony at his EUO where he stated that he opted out of WSIB because it was a long process and they did not provide adequate compensation. The respondent further argues that at the time of the EUO, on August 26, 2024, the applicant had not yet issued a Statement of Claim, which was only two days from the expiration of the limitation period. The Statement of Claim was issued two days later.
9With respect to the applicant’s failure to notify the respondent of the accident within the timelines of s. 32(1), the respondent submits that the applicant’s explanations are not credible or reasonable.
Preliminary Issue #1 - Section 61 and the applicant’s primary purpose
10I find that the evidence establishes that the applicant did elect out of the WSIA for the primary purpose of claiming accident benefits.
11When considering a claimant’s “primary purpose” in seeking an election under s. 61(2), both parties cite the Tribunal decision 16-002364 v The Personal Insurance Company, 2017 CanLII 148445 (ON LAT). In this decision, the Tribunal found that:
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.
12When 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. In his submissions, the applicant states that his “sole purpose of opting out of WSIB benefit was to file an Insurance claim and avoid [the] lengthy process of WSIB application”. I agree with the respondent that an “insurance claim” would not be a tort action. As such, the applicant appears to be agreeing that his primary purpose for electing out of the WSIB was to claim accident benefits.
13However, even if the applicant’s submissions are not taken at face value, the applicant’s EUO testimony similarly supports that the applicant’s election was for the primary purpose of claiming accident benefits. The applicant testified that he opted out of WSIB because they “take very long and the coverage is not proper”. The applicant did not state in his EUO that he was pursuing a tort claim. But rather, the applicant’s counsel had confirmed that a Statement of Claim had not yet been issued at the time of the EUO, which was two days before the expiration of the limitation period.
14I find the caselaw cited by the respondent to be persuasive. In Rezvan Mahjourian v. TD Home and Auto Insurance Company, 2009 ONFSCDRS 111 and Calderon v Allstate Canada, 2023 CanLII 15054 (ONLAT) both FSCO and the Tribunal underscored that the relevant time when considering the applicant’s mindset, is at the time of the election. Both decisions noted the lengthy delay in pursuing the tort action. In Calderon the adjudicator noted that the claimant did not provide any evidence of her mindset at the time of the election or with respect to the viability and likelihood of success of her claim. In Mahjourian the arbitrator similarly noted that the claimant had brought her accident benefit claim soon after the accident, but did not begin her tort action for two years. The arbitrator found that the chronology of her claim, particularly that the claim was filed in response to the insurer’s inquiry, demonstrated that she brought her tort claim primarily for the purpose of claiming accident benefits.
15In the present matter, the applicant submitted his application for accident benefits (OCF-1) on September 20, 2023, whereas his Statement of Claim was issued almost a year later on August 28, 2024, the last day of the limitation period. Limited evidence has been led by the applicant as to the steps he had taken to pursue the tort claim prior to August 28, 2024, or as to the viability or success of his claim. The applicant points to his notice letter to the at fault driver of his intention to pursue a tort claim. However, this letter was dated July 24, 2024, almost two years after the accident. I do not find this to be persuasive evidence of an intention to pursue a tort claim at the time of the election. As such, I find that the applicant has not established that at the time of the election, he had a good faith intention to pursue his tort claim, rather than primarily seeking accident benefits.
16I further find the decisions relied upon by the applicant to be distinguishable. The applicant cites the Tribunal decision Thiyagarajah v Economical Insurance, 2023 CanLII 15074 (ONLAT) where the claimant was found to have met his onus to prove that his election was not made for the primary purpose of claiming accident benefits. However, in Thiyagarajah even before electing out of WSIB benefits, the claimant had sent correspondence to the opposing at fault driver, stating that he was intending to pursue a court application. The adjudicator found this correspondence, sent soon after the accident, supported the applicant’s intention to pursue the court action at the time of the election. However, in the present matter, the applicant sent such a notice letter almost two years after the accident, and almost a year after submitting his OCF-1.
17The applicant further cites S.H. and H.S. v. Northbridge Personal Insurance Corporation, 2018 ONSC 1801, where the Divisional Court found that the adjudicator did not err in law in finding that the claimant had elected to opt out of WSIA benefits to pursue his class action, not primarily for the purpose of obtaining accident benefits. However, in S.H. the adjudicator noted that within a few months of the accident, the claimants had consulted a lawyer and received legal advice on the likelihood of success of a class action stemming from the accident. The claimants testified that they instructed their counsel to join the class action at their first meeting. The applicant has led no such evidence as to any steps he had taken to pursue the tort claim prior to July 24, 2024, or as to the viability or success of his claim.
18Accordingly, I find that the applicant has not established that at the time of the election he had a bona fide intention to commence a tort action, rather than primarily seeking accident benefits.
Preliminary Issue #2 – Failure to notify the respondent of the accident within the applicable timelines
19Given that I have found that the applicant is barred from moving forward with his application pursuant to s. 61(1) of the Schedule, it is not necessary for me to consider the second preliminary issue raised by the respondent.
ORDER
20I find that the applicant is statute-barred under s. 61 of the Schedule from proceeding with his application for accident benefits at the Tribunal.
21The application is dismissed, and the substantive hearing is vacated.
Released: August 12, 2025
Ulana Pahuta
Adjudicator