*Since the writing of this blog the decision has been affirmed by ONSC.

The recent LAT decision in H.S. and Northbridge by Adjudicator Gregory Flude addresses the interplay between section 30 of the Workplace Safety and Insurance Act and section 61 of the Statutory Accident Benefits Schedule.

The facts in that case were relatively unusual. Two applicants had been involved in a single vehicle accident in Newfoundland, while in the course of their employment as long distance truck drivers. One of the applicants had been driving and the other sleeping. The driver asserted that the accident happened when he had to swerve to avoid a moose on the highway. While there was no corroborating evidence in this regard, there was also no evidence to contradict the driver’s version of events. Both applicants suffered very severe injuries.

Very shortly after the accident, the applicants consulted with counsel. They learned that there was in fact a class action underway in Newfoundland, alleging that the Province had not taken appropriate steps to keep moose away from highways. They further received the advice that there was a good likelihood of success with minimal exposure for costs as members of a class action. The applicants were added to the class and retained Newfoundland counsel to represent them in that action. Ultimately, the class action was dismissed with an unsuccessful appeal of that dismissal also having been undertaken on their behalf. Once the civil action was no longer live, Northridge took the position that they were no longer entitled to accident benefits under the election made, and must apply to WSIB for further benefits. The applicants challenged that decision, taking the position that an election to bring a civil action entitles the insured to accident benefits for the life of the claim regardless of the outcome of the civil action.

Adjudicator Flude accepted the applicants’ position, finding that the election referred to in section 61(2) is singular and a further election to return to the WSIB scheme is not contemplated under either the SABS or the WSIA.

The adjudicator also dealt with the issue of whether the election in this case had been made “primarily for the purpose of claiming benefits” under the SABS as argued by Northbridge. In doing so, he engaged in a very fact specific analysis, delving into the details of the legal advice received and instructions given by the applicants at the time that their election was made. He found that the relevant time for determining whether an election was bona fide for the purpose of section 61(2) was at the time of the election itself, and not retrospectively once the outcome of the litigation was known.

At the same time, he appeared to import an objective standard in evaluating the primary purpose of the election finding that:

Since s. 61(2) directs me to question the primary purpose for making the election to opt out, I must consider whether the election was reasonable. In determining what is reasonable, I am of the view that there must be a reasonable expectation of success at the time the election was made.

While the insurer in this case was not successful, the decision in H.S. and Northbridge does suggest that a different outcome may result in the case of elections to sue in objectively tenuous or unmeritorious cases. This case further suggests that a detailed inquiry into advice received, instructions given and steps taken in pursuing a civil action will be undertaken by the LAT in these cases and that an election made for the purpose of exploring a potential civil action (as is often the case) will likely not be upheld by the LAT where at the time it is made, there is no “reasonable expectation of success.”

Jennifer Griffiths is co-chair of the Workplace and Safety Insurance Appeal practice group. If you have a question about this blog or a similar file, please contact Jennifer.