The Licence Appeal Tribunal has dismissed an injured worker's accident benefits Application, finding the respondent did not meet the section 61(2) exception.
In a decision released May 25, 2026, Adjudicator Melanie Malach found that Pollyanna McClinton is statute-barred under s. 61 of the Statutory Accident Benefits Schedule from proceeding with her Application for Accident Benefits at the Tribunal, with no evidence that she had commenced a tort claim arising from the accident.
McClinton was involved in an automobile accident on December 29, 2022. She submitted her Application for Accident Benefits (OCF-1) on January 3, 2023, and also applied to the Workplace Safety and Insurance Board in relation to the subject accident. On August 22, 2023, she completed an Assignment of Workplace Safety & Insurance Benefits. The WSIB approved the assignment under s. 61(5) of the Schedule on September 20, 2023.
TD General Insurance Company then applied to the Tribunal arguing McClinton was in the course of her employment at the time of the accident, was entitled to WSIB benefits, and therefore was precluded from claiming statutory accident benefits.
Section 61(1) of the Schedule states that insurers are not required to pay accident benefits to those entitled to claim workers' compensation under the WSIA. A limited exception in s. 61(2) applies to injured workers who elect to seek damages in tort, provided that election was not made primarily to claim accident benefits.
The case turned on McClinton's primary purpose at the time of election. McClinton, who was self-represented, did not file submissions for the written hearing. Drawing on the framework in 16-002364 v. The Personal Insurance Company, the adjudicator noted that objective factors - including steps taken to pursue the tort claim and action or inaction since the election - shed light on the claimant's true mindset.
TD General Insurance Company relied on Mahadeo v. Aviva Canada Inc. and Mahjourian v. TD Home and Auto Insurance Company, arguing the evidence showed McClinton never genuinely intended to pursue a tort claim. The insurer pointed out there was no evidence she had taken any steps to commence tort litigation.
Malach agreed. She found McClinton had applied for both accident benefits and WSIB benefits, then completed the Assignment of Benefits form almost eight months later, with no evidence of any tort claim being commenced. The respondent's inaction in pursuing her tort claim, the adjudicator said, supported the insurer's position that the election was made primarily for the purpose of claiming accident benefits.
"I am not persuaded that the respondent had a bona fide intention to commence a tort action," Malach wrote.
The adjudicator found McClinton did not meet the exceptions under s. 61(2) of the Schedule.
Her Application for Accident Benefits was dismissed.
For claims professionals handling files where injured workers apply for both accident benefits and WSIB benefits, the decision turns on a claimant-conduct point: the absence of any evidence of tort litigation, combined with the timing of the assignment, was enough for the Tribunal to conclude the election fell outside the s. 61(2) exception.
