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WSIA benefits and accident benefits collide in highway moose incident


March 16, 2018   by David Gambrill


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Two men injured on the job when their truck swerved to avoid a moose are entitled to receive accident benefits, even though they opted out of Workplace Safety Insurance Act (WSIA) benefits to join a class action lawsuit that ultimately failed.

The failure of the class action “is not the type of later event that should reasonably be taken into account” when determining the injured men’s purpose at the time they elected to opt out of WSIA, the Superior Court for Ontario ruled, rejecting the appeal of the accident benefits insurer. “The dismissal of the class action occurred years later and a finding of bad faith does not ensue because the action was ultimately unsuccessful.”

In S.H. and H.S. v. Northbridge Personal Insurance Corporation, two men identified in court documents only as “Mr. Singh” and “Mr. Hussein” were seriously injured on the job while driving a transport truck on a Newfoundland highway.

Mr. Singh was driving the transport truck on July 12, 2013, when he swerved to avoid a moose and lost control of the vehicle. He and Mr. Hussain, who was sleeping in the “sleeper portion” of the truck at the time of the accident, were rendered paraplegic.

Both men were entitled to WSIA benefits because the incident happened over the course of their employment. Under Ontario legislation, people injured on the job apply to WSIA benefits as a first resort. Accident benefits are considered only as a last resort.

Section 61(2) of the Statutory Accident Benefits Schedule (SABS) says that if a claimant opts out of WSIA benefits to pursue a court action instead, the insured is entitled to receive accident benefits payments as long as their decision to opt out of WSIA “is not made primarily for the purpose of claiming [accident] benefits under [the SABS].”

After the accident, both men consulted legal counsel. The claimants were advised to join a certified class action lawsuit underway in Newfoundland regarding motor vehicle accidents involving moose. If the lawsuit was successful, there was a chance they could receive a higher sum than available through WSIA benefits. After receiving this advice, both men elected to opt out of WSIA benefits to join the class action in Newfoundland.

As per the SABS legislation, Northbridge paid the men’s accident benefits for two years. But on June 9, 2016, roughly two weeks after the court dismissed the class action, Northbridge wrote the men to say they were no longer entitled to accident benefits because the class action was dismissed.

A Licence Appeal Tribunal (LAT) decision called for the insurer to pay the men’s accident benefits payments. Northbridge appealed the LAT decision to the Superior Court for Ontario. On appeal, the insurer argued, among other things, that the outcome of the class action should have been a factor in assessing the men’s purpose for opting out of WSIA.

Counsel for the injured men countered that the purpose to opt out of WSIA at the time was clearly not to collect accident benefits, since WSIA benefits were more than accident benefits.

The Superior court rejected Northbridge’s appeal of the LAT decision. In its decision, the court stated that the outcome of a civil suit could not be applied retrospectively to assess the claimant’s purpose for opting out of the WSIA regime. The purpose of the decision for opting out of the WSIA could only be determined based on the circumstances at the time when the decision was made.