Citation: TD General Insurance Company v. McClinton, 2026 ONLAT 25-000637/AABS

Licence Appeal Tribunal File Number: 25-000637/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:

TD General Insurance Company

Applicant

and

Pollyanna McClinton

Respondent

DECISION

ADJUDICATOR:

Melanie Malach

APPEARANCES:

For the Applicant:

Geoffrey L Keating, Counsel

For the Respondent:

Pollyanna McClinton, Self-Represented

HEARD:

By way of written submissions

OVERVIEW

1Pollyanna McClinton, the respondent, was involved in an automobile accident on December 29, 2022. She sought benefits from the applicant, TD General Insurance Company, pursuant to the Statutory Accident Benefits Schedule - Effective September 1, 2010 (including amendments effective June 1, 2016) (the “Schedule”). The applicant denies that the respondent is entitled to benefits and applied to the Licence Appeal Tribunal - Automobile Accident Benefits Service (the “Tribunal”) for resolution of the dispute.

ISSUES

2The issue in dispute is:

i. Is the respondent barred under s. 61 of the Schedule from pursuing her claim for accident benefits at the Tribunal due to alleged entitlement to benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”)?

RESULT

3I find that the respondent is statute-barred under s. 61 of the Schedule.

PROCEDURAL ISSUE

No submissions filed by the respondent

4In the Case Conference Report and Order (“CCRO”), released on May 5, 2025, the Tribunal ordered the dispute to proceed to a written hearing. The Tribunal scheduled a written hearing for November 14, 2025. Notice of the written hearing was sent to the parties on May 13, 2025, using the contact information provided.

5On August 12, 2025, the respondent filed a Response by Injured Person Regarding Insurance Company’s Application for Auto Insurance Dispute Resolution under the Insurance Act. Her response was as follows:

My insurance company assisted with my claim following my accident on December 29, 2022. My insurer is currently working towards WSIB and the claim. I have no response.

6The applicant filed its submissions in accordance with the CCRO on October 16, 2025.

7The respondent did not file any submissions.

8By email dated November 25, 2025, the Tribunal wrote to the parties and advised that it had not received the respondent’s submissions with respect to the written hearing scheduled on November 14, 2025. It asked whether the parties had reached a resolution.

9By email dated November 26, 2025, counsel for the applicant replied that the matter has not resolved. There was no response from the respondent.

10I find that as the applicant did not file a Notice of Withdrawal with the Tribunal, the file was not closed. I will therefore proceed with the hearing pursuant to s. 7(2) of the Statutory Powers Procedure Act. I find that the parties had notice of the written hearing by way of email on May 13, 2025, which included the Notice of Written Hearing.

ANALYSIS

Law – Section 61

11Section 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 worker’s compensation benefits under the WSIA.

12Section 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.

13Section 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 administer or board responsible for the administration of the worker’s compensation law or play approves the assignment.

14I 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 subjecting 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 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.

15Section 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.

The respondent is barred under s. 61(1) of the Schedule

16The applicant submits that the respondent was in the course of her employment at the time of the subject accident, and she is therefore entitled to WSIB benefits and is precluded from claiming statutory accident benefits. The applicant submits that the respondent submitted her Application for Accident Benefits (“OCF-1”) on January 3, 2023. She also applied to the Worker’s Compensation Insurance Board (“WSIB”) in relation to the subject accident. She completed an Assignment of Workplace Safety & Insurance Benefits on August 22, 2023. The WSIB approved the assignment of benefits in accordance with s. 61(5) of the Schedule on September 20, 2023. The applicant argues that to date, there is no evidence produced to suggest that the respondent has taken any steps to commence tort litigation with respect to the subject accident.

17The applicant further submits that the respondent has not proven on a balance of probabilities that her election for accident benefits falls within the exceptions of s. 61(2) of the Schedule. The applicant submits that the facts of this case clearly establish that the respondent’s primary intention at the time she elected to receive accident benefits was to receive accident benefits. However, the evidence supports that the respondent did not intend to commence a tort action with respect to the subject accident.

18The applicant relies upon the Tribunal decisions of Mahadeo v. Aviva Canada Inc., 2007 ONFSCDRS 58 (“Mahadeo”), and Mahjourian v. TD Home and Auto Insurance Company, 2009 ONFSCDRS 111 (“Mahjourian”), for the principle that even if the respondent were to now commence tort litigation, the evidence would still clearly indicate that the respondent did not genuinely intend to elect to receive accident benefits in order to pursue her tort claim at the time the election was made. Given the length of time that has passed since the accident occurred, as well as the fact that no tort claim has been pursued to date, the factual circumstances of this case are even less ambiguous than those featured in Mahadeo and Mahjourian.

19I find that the respondent applied for both accident benefits and WSIB benefits. She then filled out an Assignment of Benefits form almost eight months later. I find that there is no evidence that the respondent has commenced a tort claim with respect to the subject accident. Therefore, I find that the evidence establishes that the respondent’s election to receive accident benefits was for the primary purpose of claiming accident benefits.

20I find that the respondent does not meet the exceptions under s. 61(2) of the Schedule which would allow her to pursue her claim for accident benefits. Specifically, the respondent’s inaction in pursuing her tort claim supports the applicant’s position that the respondent has made an election for accident benefits primarily for the purpose of claiming accident benefits.

21As such, I am not persuaded that the respondent had a bona fide intention to commence a tort action and find that the applicant did elect out of the WSIA for the primary purpose of claiming accident benefits. I find that she is therefore statute barred from proceeding with her Application for Accident Benefits pursuant to s. 61 of the Schedule

ORDER

22For the reasons outlined above, I find that the respondent is statute-barred under s. 61 of the Schedule from proceeding with her Application for Accident Benefits at the Tribunal. As a result, her Application is dismissed.