Ontario arbitration confirms the need for early clarification of work-related auto accidents

Adjusters may want to ask a few detailed questions to determine whether a motor vehicle accident occurred over the course of a claimant’s employment, based on a recent arbitration in Ontario.
In Andrew Hayward and Royal & SunAlliance Insurance Company of Canada, the arbitration sided with an insurer that alleged a claimant was attempting to pursue workers’ compensation benefits simultaneously with auto insurance accident benefits. WSIB benefits and accident benefits are intended to be mutually exclusive.
Ontario law states that if an accident happens over the course of a worker’s employment, the claimant is entitled to Workplace Safety and Insurance Board (WSIB) benefits and an auto insurer is not required to pay accident benefits.
The law also contains an exemption in subsection 59.2 of the Statutory Accident Benefits Schedule (SABS). It says a person entitled to WSIB benefits may start a legal action against the person responsible for his or her injuries (in which case the person is no longer entitled to WSIB benefits), so long as their election to start a legal action is not made primarily for the purpose of claiming accident benefits.
The claimant in the case, Andrew Hayward, was injured in a motor vehicle accident on Jan. 15, 2009.
Royal gave evidence in arbitration that it had recorded an initial phone call with Hayward about the accident. In it, Royal said, Hayward told the insurer the accident had happened while he was on his way to the bank and then downtown for a sales call.
Royal then wrote to Hayward on Jan. 16, 2009 advising him that the accident occurred in the course of his employment, making him eligible for WSIB benefits. Hayward returned a letter on Feb. 13, 2009 indicating the accident did not happen while he was at work and that he intended to pursue an application for accident benefits.
Royal subsequently advised Hayward that he was not eligible for accident benefits because he did not have a valid driver’s license at the time of the accident.
Meanwhile, on Feb. 2, 2009, Hayward had already applied for WSIB benefits, indicating the accident happened while he was on his way to meet a client. Royal only became aware of Hayward’s WSIB claim after obtaining his employment file on Nov. 30, 2010.
Hayward subsequently abandoned his WSIB claim on Apr. 14, 2011, approximately four days before the arbitration case before the Financial Services Commission of Ontario (FSCO). He then commenced a legal action on May 16, 2010.
Hayward told the arbitrator his legal action signaled his intention to the insurer that he would be claiming accident benefits.
“I find that Mr. Hayward commenced the legal action primarily for the purpose of claiming accident benefits under the [SABS] Schedule,” the arbitrator ruled. “Therefore he cannot rely on the exemption in subsection 59(2) of the schedule.”