Litigating Workers' Compensation Issues Outside of the WSIB and WSIAT

  • April 27, 2020
  • Carissa N. Tanzola, Filion Wakely Thorup Angeletti LLP

The Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”), provides for a legislated compensatory no-fault insurance scheme for workplace injuries.  Section 118 of the WSIA gives the Workplace Safety and Insurance Board (the “WSIB”) the “exclusive jurisdiction to examine, hear and decide all matters and questions arising under the [WSIA], except where [the WSIA] provides otherwise.”  Section 123 of the WSIA gives the Workplace Safety and Insurance Appeals Tribunal (the “WSIAT”) exclusive jurisdiction to hear and decide “all appeals from final decisions of the [WSIB] with respect to entitlement to … benefits under the insurance plan” and more.  

While the above may be straightforward when adjudicating claims for certain benefits under the WSIA, complexities arise when a civil claim, human rights application and/or grievance seeks damages as a result of a workplace injury.  This begs the question: can workers’ compensation issues be litigated outside of the WSIB and WSIAT?  In most cases, the answer is “no”.

Workers’ Compensation and Civil Claims

According to subsection 26(1) of the WSIA, no civil action lies to obtain benefits under the WSIA. Rather, all claims for benefits must be heard and determined by the WSIB.  Further, according to subsection 26(2) of the WSIA, entitlement to benefits under the WSIA is in lieu of all rights of action that a worker has or may have against the worker’s employer.  That a worker injured in a workplace accident must file a claim with the WSIB for benefits and cannot sue an employer for damages suffered is often referred to as the “historic trade-off.” 

Nevertheless, sometimes a civil claim relating to a workplace injury is commenced.  For example, a worker may have slipped and fallen while walking from their parked car in the employer-owned parking lot to the front door of the workplace and, as a result, claim for a civil remedy from their employer, the company responsible for maintaining the parking lot and the applicable insurance companies.

In such instances, a party may apply to the WSIAT under subsection 31(1) of the WSIA. The WSIAT will then determine if, by virtue of the WSIA, (i) the right to commence an action has been taken away, (ii) whether the amount that a person may be liable to pay in an action is limited by the WSIA, or (iii) whether the plaintiff is entitled to claim benefits under the WSIA

This “right to sue application” can be brought at any point during a civil proceeding.  With a favourable decision from the WSIAT, the civil claim is statute-barred.  As in McDonald v Santos, 2016 ONSC 2916, the Ontario Superior Court rejected the plaintiff’s argument that, by consenting to a pre-trial, the defendants had attorned to the jurisdiction of the Ontario Superior Court of Justice.  The plaintiff’s motion requesting a stay of the defendants’ WSIAT right to sue application was dismissed.

When a civil claim is statute-barred, section 27(1) of the WSIA entitles the worker to the adjudication of benefits.  Section 27(1) has been interpreted to mean that having the right to claim benefits is different and distinct from having the right to receive benefits. 

As the WSIA does not provide a guarantee of benefits, it is possible that a worker could be statute-barred from bringing a civil action and also denied benefits under the WSIA. This result occurred in Decision No. 893/11, 2015 ONWSIAT 1396, where the plaintiff to a civil action unsuccessfully argued that his right to sue should not be barred by the WSIA because he had been previously denied entitlement by the WSIB.