Volume. 5 Issue. 52- December 1, 2021
This week the Tribunal considered whether the filing of a Statement of Claim, in a potential WSIB matter, satisfied the requirement to establish that the election to sue was not made primarily for the purpose of claiming benefits under the Schedule.
On the procedural front, we review the Tribunal’s considerations on two matters wherein the Tribunal Appeal would be stayed pending related proceedings before Divisional Court.
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Despite Statement of Claim, Election Not Valid
Statement of Claim Does Not Prove Election as Bona Fide – Injured in an accident while in the course of her employment, Smektala, in 20-006086 v TD Insurance originally signed a WSIB Election form, confirming both that she was choosing to claim WSIB and had applied for and received benefits from her automobile insurer.
WSIB, in August 2018 indicated that they were unable to process her election given her receipt of benefits under the SABS. TD requested Smektala complete and submit a WSIB assignment of benefits form and following same WSIB advised Smektala that she was now eligible to receive WSIB healthcare benefits, but not loss of earnings benefits
TD, in December 2018 as a result advised Smektala that they were closing her AB file as she was in receipt of WSIB benefits. In February 2019, WSIB advised that they too were now closing their file, given that she had recovered from the accident related injuries.
Subsequently, in April 2020, Smektala issued a Statement of Claim regarding her injuries sustained in the accident. Smektala also filed an appeal with the Tribunal in June 2020, and ultimately a preliminary issue hearing was scheduled, “to determine whether the applicant’s re-election to sue in tort was not made primarily for the purpose of claiming accident benefits and, as a result, whether she is entitled to proceed with her claim for accident benefits from the respondent.” Smektala contended that “she re-elected to sue in tort on April 21, 2020 by issuing the Statement of Claim. The Statement of Claim, according to Smektala, demonstrated that she did not elect to sue primarily for the purpose of claiming benefits under the Schedule.” TD countered that she had “failed to prove on a balance of probabilities that her election was not made primarily for the purpose of claiming benefits under the Schedule.”
In considering the available evidence, the Tribunal noted that the requirement was to determine the “primary purpose” “at the time of election, and that “determining the “primary purpose” involves determining the applicant’s mindset at the time of the election.” The Tribunal found there to be “no evidence from the applicant regarding her mindset at the time of her re-election… no subjective evidence before me to demonstrate that the applicant’s decision to sue in tort was a choice made in good faith.”
While Smektala “made several submissions regarding the viability and likelihood of success of her tort action, there is no evidence before me to support these submissions.” In addition, “there is no evidence before me that speaks to the strength of the applicant’s tort action…”
Concluding, the Tribunal found that “simply filing a statement of claim without supporting information does not overcome the applicant’s burden to prove on a balance of probabilities that she did not re-elect to sue in tort primarily for the purpose of claiming benefits under the Schedule. Therefore, I find that the applicant does not fall within the exemption provided in s. 61(2) of the Schedule”, and therefore she was not allowed to proceed with her appeal at the Tribunal.
Contempt Hearing Referred to Court
Contempt Hearing Pending – In Gilani v Travelers (19-009248) Gilani sought an Order from the Tribunal referring the matter to the Divisional Court for a contempt hearing, because the Travelers’ occupational therapist failed to attend the hearing to give evidence despite receiving a “Summons to a Witness” to do so. The Tribunal found for a fact that the intended witness was properly served with a “Summons to a Witness” and has failed to attend the hearing. Further, “the Tribunal has no information with respect to the reasons for her non-attendance. Ms. Lee’s evidence is important as it relates to the catastrophic impairment determination before the Tribunal.” Therefore, the Motion was granted and the matter would be referred to the Divisional Court for a Contempt hearing.
Matter Stayed Pending Court Intervention
Stay Granted – In Harpreet Grewal v Peel Mutual (20-010308), Grewal had originally been denied the ability to add punitive damages as an issue in dispute, which the hearing adjudicator upheld upon reconsideration. Therefore, the hearing remained scheduled to commence October 18, 2021. On that date however, the Tribunal was served a Notice of Appeal to the Divisional Court on the decision. The Tribunal agreed with Grewal and decided to stay the hearing pending the decision from Divisional Court, given that the SPPA is clear that once an appeal has been filed at Divisional Court, the matter at the Tribunal is stayed pending the decision. It was also noted that the stay would allow for the attendance at two further scheduled IEs as well.
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