In Roble v. Chubb Insurance 2023 ONLAT 23-002811/AABS-PI, Adjudicator Pahuta barred the Applicant’s claim pursuant to section 61 of the Statutory Accident Benefits Schedule (“the Schedule”).

In accordance with section 61 of the Schedule, when an insured elects to bring an action, thereby opting out of receipt of WSIB benefits, they are entitled to Statutory Accident Benefits (SABS) provided that their election “is not made primarily for the purpose of claiming benefits under SABS.” This is to avoid a situation where an individual elects to commence an action for the sole purpose of circumventing the workers’ compensation scheme and accessing SABs.

In this case, the applicant was involved in a motor vehicle accident during the course of her employment, and she submitted an Application for Accident Benefits to the respondent. As such, she was required pursuant to s. 61 to make an election between SABS and WSIB benefits. The respondent noted that such election could not be made for the sole purpose of obtaining statutory accident benefits and asked for proof that the tort action had been commenced as well as a copy of the executed WSIB assignment.

The applicant forwarded her executed WSIB assignment to the respondent , and the applicant’s representative provided the respondent with a copy of the letter providing notice to the tortfeasor of her intent to sue pursuant to s. 258 .3 of the Insurance Act.

A year later, the limitation period for the applicant to issue a Statement of Claim to pursue recovery of tort damages expired. Despite the respondent’s multiple written requests to the applicant requesting a copy of the Statement of Claim, it was filed outside of the two-year limitation period, and the applicant was barred from proceeding against the other party.

In coming to the decision to similarly bar the applicant’s SABs claim, Adjudicator Pahuta followed the “primary purpose test” set out in 16-002364 v The Personal Insurance Company, which considers the following factors that are persuasive in determining the “primary purpose” of an election under s. 61(2):

(i)      It is the applicant’s onus to prove that their election falls within the exception and this determination is fact driven;

(ii)     The relevant point of time when determining the applicant’s “primary purpose” is at the time of the election;

(iii)     The test in determining the “primary purpose” is subjective, considering if the choice was made in good faith;

(iv)    “Objective” factors must also be considered in evaluating the applicant’s motives including: strength of the court action, steps taken to pursue the claim, advantages that might have led the applicant to choose accident benefits over WSIB benefits; and

(v)     The election must be a “real choice” as opposed to forum shopping.

In addition to this test, Adjudicator Pahuta considered Mahjourian v TD, where the applicant filed their claim late and only in response to an insurer’s inquiry. This was a key factor suggesting that a proper election was not made. In the matter at hand, the applicant argued that her delay in pursuing her tort claim was due to her difficulty obtaining legal representation and navigating the claims process during Covid restrictions. She cited Thiyagarajah v. Economical Insurance, argued that litigation is “complicated and risky” and the fact that a claimant later decided not to pursue a tort claim, does not diminish the possibility of litigation as a valid goal immediately following the accident.

However, it was noted that the applicant had legal representation for more than a year and a half before her Statement of Claim was filed, and such representation had been retained well before the expiration of the limitation period. Further, Thiyagarajah was distinguishable on the facts. In the matter at hand, the applicant did not send her notice of intention to sue in tort prior to, or contemporaneously with , her election to pursue payment of SABs by the respondent, and she only did so after the issue was raised by the respondent. In terms of the delay in filing a Statement of Claim, the applicant did not give evidence of any hurdle to the tort claim, as was identified in Thiyagarajah. Further, the claimant in Thiyagarajah was noted not to have been at fault in the accident. In the present case, the applicant did not make any submissions as to the strength of her tort claim.

Further, Adjudicator Pahuta noted that the decision in 16-002364 v The Personal Insurance, as raised by the applicant, was also distinguishable. In that case, the applicant provided affidavits indicating their intention to pursue the tort action, and they also filed the statement of claim in a timely manner. This did not happen in the matter at hand , and the “discoverability rule” did not apply to her late filing, as the evidence established that the applicant was aware of her injuries as of the date of loss.

The applicant also raised the additional argument that she did “not have access to WSIB benefits.” However, no evidence was provided in support of this claim.

After considering all of these factors, Adjudicator Pahuta determined that in fact, the applicant did not have a bona fide intention to issue a tort claim due to her lack of efforts to pursue such claim before the expiry of the limitation period and held that the fact that no tort claim was pursued proved that her election was made primarily for the purpose of pursuing payment of statutory accident benefits. As such, her SABs application was statute barred.

Selina Ferenac is an articling student at the firm and the author of this blog. If you have a question about this decision, or a similar file, please contact Selina at [email protected].