WSIB vs Tort

The Historical Trade-off

Many years ago, when employees were hurt on the job, they were left stranded without any benefits to help them get better, unable to work, with nowhere to turn.  In order to try to fix this problem, the Ontario Government created the Workplace Safety and Insurance Act (the “Act”) which applies to certain industries listed in the Schedules to the Act.    Schedule 1 employers include construction, manufacturing, mining and transportation as well as hospitality and domestic workers.  Schedule 2 employers include provincial government, railway and telephone companies amongst others.

The act provides for many things, like minimum safety requirements for workers and provides coverage for medical benefits and income continuation when a worker is injured on the job.  Employers are required to pay premiums into a fund to ensure that proper coverage is available for injured employees.

However, depending on the circumstances, the Act may prevent the worker from starting what we call a Tort Claim – that is, suing an at fault party or parties when it is the worker’s own employer or co-workers.

This is what is often referred to as a historical tradeoff:  in exchange for guaranteed access to certain benefits if injured on the job, employees lost the right to be able to sue their employers or fellow employees when they were injured at work, no matter how egregious the fault.

Unfortunately this can have harmful consequences for someone who is seriously and permanently injured in that their right to claim pain and suffering damages may be extinguished if they are stuck within the WSIA coverage only.

When might your claim be barred?

Almost certainly, if you are employed by a workplace that falls under the WSIA legislation, and are injured while at work as a result of the fault of your workplace or one of your co-workers you are not permitted to sue.  However those are not the only circumstances in which your claim may be barred.

For Schedule 1 employees, you cannot sue if:

-the at fault party was any Schedule 1 employer (either your own or any other) or Schedule 1 employee (employed by the same employer or a different one) AND

-you were both “in the course of employment” when the injury occurred

For Schedule 2 employees, the same rules apply, except that you can sue another Schedule 2 employer other than your own.

There is no bar for a Schedule 1 employee to sue a Schedule 2 employer even if he/she was in the course of employment.

Examples of claims that have been barred include: a manufacturing plant worker walking to the outside of their workplace during a paid break and slipping on an icy walkway or parking lot, a construction worker travelling as a passenger in a company vehicle driven by a co-worker from jobsite to jobsite when that vehicle causes an accident, even a worker on their way in to work tripping in a pothole in the company’s parking lot has been prevented from suing by the Act.  In each of these cases, the worker was limited to receiving benefits through the Act and was not permitted to sue for pain and suffering.

So, the better question may be, when can I sue?

When do I have the right to sue?

Finding out whether or not you and the at fault party are in the same Schedule is easy enough to do.  Determining that you are in a different schedule than the at fault party will allow you to sue that person.

But what about when you’re in the same schedule?  The consideration of whether or not you have a right to sue usually comes down to whether you and the at fault party were both “in the course of your employment” when the incident occurred.

If even one of you are not “in the course of employment” you can choose to sue.

The Workplace Safety and Insurance Appeals Tribunal has the jurisdiction to determine whether or not someone has the right to sue.  Evidence that you can present to them to show that either you or the at fault party were not in the course of your employment includes:

• That you were not getting paid when the incident occurred
• If the incident occurred off work premises, that you were not on any work related business
• The incident occurred outside of your usual work hours
• You are an independent contractor or self-employed as opposed to an employee

That last point is important especially in the trucking industry, which is usually considered a Schedule 1 industry and thus covered by the legislation.  Many truck drivers are actually independent owner/operators and fall outside of the WSIA coverage.  The WSIAT will want to see that you have your own company, invoicing, set your own hours, and have the ability to choose which jobs you take in order to confirm that you are truly independent and therefore have the right to sue when an incident occurs while you are working.

Note that if your injury occurred as a result of a motor vehicle accident, and you have a genuine intention to sue an at fault party where the claim is not barred, you must opt out of WSIA benefits and elect to receive accident benefits through your auto insurer.

If you or someone you know has been injured while on the job and want to know whether or not you have the possibility of any compensation outside of the Workplace Safety and Insurance Act,  call the Jasmine Daya & Co. team at (416) 967-9100 or contact us online to schedule a free consultation.