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Bad Facts Make for Bad Law: WSIB vs. Accident Benefits

Recently I read a very troubling decision from the License Appeals Tribunal (Travis v. Aviva Insurance Company, 2021 CanLii 120883 ON LAT)

This case is about a first responder firefighter, who heroically responded to the North York Van Attack which took place on April 23, 2018. You may recall that on April 23, 2018 Alek Minassian rented a van and deliberately rode down Yonge Street between Sheppard Ave. and Finch Ave along to pedestrian sidewalk and road and deliberately killed and injured innocent people.

This case hit very close to home. On the date of the attack Goldfinger Injury Lawyers Office was located at 45 Sheppard Avenue West, at Yonge Street in North York.

Myself, our personal injury lawyers and staff walked along the Yonge Street every day to get to the post office, to send couriers, for large copies, for dry-cleaning, for food, to take the TTC or just to get some fresh air. That stretch of Yonge Street was our daily route for pretty much everything outside. It could have been any one of us.

Reading this decision I had a pretty clear picture of the volume of pedestrian traffic and the route which the Van took.

In this case the first responder made a claim for accident benefits. That means that he made a claim through car insurance to get benefits like an income replacement benefit; an attendant care benefit, or benefits for psychological counselling or social work. Unfortunately, the accident claim was denied.

Bad Facts Make for Bad Decisions

This case involves some very bad facts and made for a bad decision at law. I suspect that it will get appealed. Interesting is that one of the main cases relied on by the parties P.F. v. Economical Mutual Insurance Company was the subject of an application for judicial review to the Divisional Court. The Tribunal tried to wait to release their decision, but 3 months had passed so they released their decision to avoid unreasonable delay. Strange how one Court’s definition of what constitutes unreasonable delay is not the same as another Court’s definition of unreasonable delay. I feel like Courts and Tribunals should put their heads together to mandate that decisions get out within a certain period of time failing which…….? What are you going to tell the Judge? That s/he losses his/her job or loses pay for a late decision on a really complex and lengthy matter? If you have a solution or an idea, I’m sure the entire legal community would love to know.

Here’s what happened in this case:

“The applicant’s fire station received a call to respond to an incident. The applicant stated the call may have indicated he was responding to a pedestrian strike. He proceeded to board and drive one of two fire trucks from his station to attend the scene. However, the applicant did not see the van strike pedestrians and confirmed during his EUO that “I did not see it strike a pedestrian.”  When the applicant eventually stopped the fire truck, he stated he saw multiple police officers with machine guns in hand, as well as victims on the ground. At the scene, the applicant indicated that he assisted with the medical equipment, donned his protective gear, and began attempting to assist.”

We know that the Applicant was in the course of his employment. Once course of employment triggers, a personal injury lawyer immediately thinks to a Worker’s Compensation Claim (WSIB).linkedin-2-300x300

A Plaintiff cannot simultaneously collect WSIB Benefits, and collect accident benefits via car insurance. This is double dipping which isn’t allowed.

A Plaintiff must choose a route. Either s/he choses the WSIB Route; or s/he choses the accident benefit and suing the at fault party route. This is called an election. There are pros and cons to each route. The Plaintiff and his/her personal injury lawyer must chose the path which best suits the Plaintiff’s needs, interest and the case at hand. If the facts line up well for Third Party Negligence Case; then perhaps that’s the best road to take and vice versa with WSIB in the event that liability is an issue.

When I think firefighter, I also think of collateral benefits. Firefighters are unionized. They have various benefits which have been negotiated by their Union as a perk of employment. The vast majority of firefighters have access to claim short term disability insurance (which will pay 80-100% of lost wages depending on the policy); long term disability benefits (which will pay 65-80% of lost wages depending on the policy); along with health benefits for counselling and other treatment. Collateral benefits may also cover dental, prescriptions and even assistive devices; depending on the wording of the policy. Some insurance policies are more comprehensive than others; so it really all depends on the policy.

Nonetheless, we have a heroic firefighter who did his job as a first responder. He had to stop working in and around September 2018 and received psychological therapy through the WSIB. He was diagnosed with Major Depressive Disorder, Moderate to Severe, and Post-traumatic Stress Disorder.  Around December 2019, he was recommended to return to work on a gradual basis and WSIB wrote the applicant offering a modified duty position starting January 21, 2020. However, the applicant disagreed with the assertion that he was capable of a gradual return to work. Instead of appealing the WSIB decision to the WSIAAT (which is the body that hears WSIB disputes); he  decided to “de-elect” from the WSIB regime and pursue an accident benefit claim against his insurer. 

And this is how things got all messed up. The insurance company did not accept that the accident arose out of the regular use or operation of a motor vehicle and denied the payment of accident benefits. The adjudicator at the LAT agreed with the insurer’s position and now we have a published decision where bad facts have made for bad law which will likely be appealed.

In the meantime, it would appear that the Applicant is neither receiving WSIB Benefits for lost wages or counselling, nor would it appear that he is receiving accident benefits for lost wages or counselling. So, it would appear that we have someone who cannot return to work and who is in need of counselling/therapy; who isn’t getting the help and benefits he needs either from WSIB, or from accident benefits.

In what world do we treat heroic first responders to a terrorist attack this way.


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