Licence Appeal Tribunal File Number: 24-007031/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:
Aviva Insurance Company of Canada
Applicant
and
Kiranpal Brar
Respondent
PRELIMINARY ISSUE HEARING DECISION AND ORDER
ADJUDICATOR:
Brian Norris
APPEARANCES:
For the Applicant:
Geoffrey Keating, Counsel
For the Respondent:
No submissions
Heard:
By Way of Written Submissions
OVERVIEW
1Kiranpal Brar (“Brar”) was involved in an automobile accident on September 13, 2017. He sought benefits pursuant to the Statutory Accident Benefits Schedule – Effective September 1, 2010 (including amendments effective June 1, 2016) (“the Schedule”). Aviva Insurance Company of Canada (“Aviva”) is responsible for Brar’s claim.
2Aviva believed that Brar may be entitled to benefits pursuant to the Workplace Safety & Insurance Act (“WSIA”). Initially, the Workplace Safety and Insurance Board (“WSIB”) denied that Brar was entitled to benefits. The decision to deny benefits through the WSIB was appealed by Aviva and was later overturned in a decision by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In that decision, Brar was determined to be entitled to claim benefits through the WSIB.
3Aviva contends that the WSIAT decision bars Brar from claiming benefits under the Schedule and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (“the Tribunal”) for an order confirming that Brar is barred from claiming entitlement to benefits under the Schedule.
4In his response to Aviva’s application at the Tribunal, Brar insisted that the WSIAT decision found that he was an employee, entitling him to claim benefits under “the insurance plan”, and that Aviva must now pay him benefits under the Schedule.
ISSUE IN DISPUTE
5The issue to be decided is:
i. Is Aviva required to pay accident benefits to Brar, pursuant to section 61(1) of the Schedule?
RESULT
6Aviva is not required to pay benefits to Brar, pursuant to section 61(1) of the Schedule.
ANALYSIS
Background
7Brar filed a response to Aviva’s application and participated in the case conference, where he agreed to the issue in dispute, and the format of the hearing. However, he did not issue submissions in this hearing. Additionally, the Tribunal contacted Brar’s counsel after the deadline to tender submissions, seeking submissions from Brar, yet none have ever been tendered.
8Brar was involved in an accident on September 13, 2017, in Arkansas while driving a transport truck. He initially claimed entitlement to accident benefits from a different auto insurer. But by January 8, 2019, Aviva took over Brar’s claim.
9Subsequent to his application for accident benefits, Aviva also sought to determine whether Brar was entitled to claim benefits under the WSIA. As noted, initially the WSIB concluded that Brar was not entitled to benefits because he was deemed to be an owner operator, or independent operator of the truck.
10Aviva appealed the initial denial of benefits under the WSIA. In the appeal decision, WSIAT determined that Brar was a worker at the time of the accident, was in the course of his employment at the time of the accident, and thus was found to be entitled to claim benefits under the WSIA.
11Aviva submits that, to-date, Brar has taken no steps to commence tort litigation with respect to the subject accident, which is required to satisfy section 61(2) of the Schedule. As a result, Aviva asks for an order confirming that it is not required to pay accident benefits to Brar.
12For the following reasons, I agree with Aviva and find that it is not required to pay accident benefits to Brar.
Jurisdiction
13This is a rare situation in which the dispute is not over a specific benefit claimed by Brar, by rather his overall claim for statutory accident benefits from Aviva. As such, I must first consider whether the Tribunal has jurisdiction to hear the case. Having reviewed the materials before me, I find that this matter falls within the jurisdiction of the Tribunal by operation of section 280 of the Insurance Act.
14Section 280(1) of the Insurance Act applies to disputes in respect of an insured person’s entitlement to statutory accident benefits or in respect of the amount of statutory accident benefits to which an insured person is entitled. Section 280(2) of the Insurance Act provides that an insured person or the insurer may apply to the Tribunal to resolve a dispute describe in section 280(1).
15Based on the response filed with the Tribunal, it is my understanding that Brar insists that he is entitled to claim statutory accident benefits despite the WSIAT Order indicating otherwise. Aviva’s refusal to accept his claim, creates a dispute over Brar’s entitlement to statutory accident benefits, as contemplated by section 280(1) of the Insurance Act. While there is no claim for a specific benefit before me, I find that this does not detract from the overarching issue before the Tribunal – Brar insists he is entitled to claim statutory accident benefits, and Aviva denies that he is entitled to same. Accordingly, pursuant to section 280(1) of the Insurance Act, the Tribunal is the appropriate venue to address the dispute.
The Law
16Section 61(1) of the Schedule provides that an insurer is not required to pay benefits under the Schedule in respect of any insured person whom, as a result of an accident, is entitled to receive benefits under the WSIA, or any other workers’ compensation law or plan.
17Pursuant to section 61(2), section 61(1) does not apply in respect of an insured person who elects to bring an action referred to in section 30 of the WSIA, if the election is not primarily for the purpose of claiming benefits under the Schedule, such as pursuing a tort action against the at-fault driver. The onus is on the insured person to demonstrate, at a minimum, an equal intention to pursue a tort action and accident benefits at the time the election is made. This is typically demonstrated by issuing a statement of claim against the other party involved in the tort claim.
18Section 30 of the WSIA applies when a worker is entitled to benefits under the WSIA with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease. Section 30(2) provides that the worker shall elect whether to claim the benefits or to commence the action and shall notify the Workplace Safety and Insurance Board (“the Board”) of the option elected. The election must be made within 3 months after the accident occurs, or within a longer period the Board deems it just to do so.
19Pursuant to section 30(6), if an election is not made, or if notice of election is not given, the worker shall be deemed, in the absence of evidence to the contrary, to have elected not to receive benefits under the WSIA.
20Section 34 of the WSIA states that if the insured person does not comply with the 3-month time limit, the insured person may still be entitled to benefits if they have a reasonable explanation for the delay.
Brar is entitled to receive benefits under the [WSIA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)
21I find clear and uncontroverted evidence confirming that Brar is entitled to receive benefits under the WSIA.
22The May 15, 2024 decision, numbered 647-24 by the Workplace Safety and Insurance Appeals Board (“WSIAB”) clearly and unequivocally states that Brar is entitled to claim benefits under the WSIA. Thus, section 61 of the Schedule is engaged, and Aviva is not required to pay accident benefits to Brar, unless he elects to bring an action against a person in respect of the injury, pursuant to section 30 of the WSIA.
No evidence Brar has elected to forego benefits through the [WSIA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-i8/latest/rso-1990-c-i8.html)
23I find no evidence indicating that Brar elected to forego benefits through the WSIA and commence an action against the at-fault driver.
24As noted, Brar is required to make an election within three months of the accident, confirming his intention to commence a tort action. To-date, there is no indication that the WSIAB has permitted an election made within a longer period.
25Having not made an election, section 30(6) of the WSIA assumes that Brar elected not to receive benefits under the WSIB, subject to evidence to the contrary. Yet, being deemed to have elected not to receive benefits does not automatically entitle Brar to claim benefits pursuant to the Schedule.
26According to section 61(2) of the Schedule, and because Brar is entitled to claim benefits pursuant to WSIA, Brar’s election must not be made for the primary purpose of claiming benefits under the Schedule. That is, he must demonstrate, at a minimum, an equal intention to pursue a tort action and accident benefits at the time the election is made.
No evidence Brar has commenced tort litigation
27I find no evidence indicating that Brar commenced tort litigation with respect to the accident.
28I agree with Aviva that Brar has not demonstrated that he has an equal intention to pursue a tort action and accident benefits. To-date, there is no evidence indicating that Brar has taken any steps to commence a tort action with respect to the accident. As noted, Brar did not tender submissions in this hearing and led no evidence to support a position that he intends to pursue a tort action against the at-fault driver. Not only has Brar failed to provide any evidence of an intention that his election is not made primarily for the purpose of claiming accident benefits, but he has also not provided any submissions or evidence to suggest that he had a bona fide claim, as found in Hayward v. Royal & Sun Alliance Insurance Company, 2015 ONSC 433. Accordingly, no evidence is before me to suggest that Brar commenced or intends to commence a tort action with respect to the subject accident.
29Brar is now eight years removed from the accident but has yet to commence a tort or other action in relation to the accident, nor has he led any evidence to suggest an intention to commence an action in relation to the accident. These facts, when combined with the WSIAT decision confirming that Brar is entitled to claim benefits under the WSIA, cause me to conclude that Brar has not opted out of claiming benefits under the WSIA because he has in no way demonstrated that his election is not made primarily for the purpose of claiming accident benefits.
30Accordingly, I find that Aviva is not required to pay accident benefits to Brar.
CONCLUSION AND ORDER
31Aviva is not required to pay accident benefits to Brar pursuant to section 60(1) of the Schedule because there is no evidence Brar elected to opt out of claiming benefits under the WSIA, in order to primarily pursue benefits other than accident benefits.
Released: February 9, 2026
___________________________
Brian Norris
Adjudicator