The Right of Family Members to Sue in Respect of a Workplace Fatality

  • April 08, 2022
  • Cassandra Ma, Filion Wakely Thorup Angeletti LLP

It is well known that workers’ compensation benefits are in lieu of the accident-related damages that can be civilly claimed by a worker or their estate. What happens, however, to the rights of action held by family members who are not part of a deceased worker’s estate or dependents? Do these family members retain the right to commence civil litigation in respect of a work-related fatality?

The Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) recently grappled with this issue in Sigurdson v. Norbord Inc. (Decision No. 966/21), 2022 ONWSIAT 27 (“Sigurdson”), and found that individuals maintain their right to sue in relation to a work-related fatality if they cannot be considered dependents or survivors of a deceased worker.

Factual Background

The worker in Sigurdson was employed as a woodlands supervisor for a pulp and paper manufacturer. One day, the worker did not return home after being assigned to patrol a remote area. He was later found deceased next to his ATV.

In a previous decision, the Workplace Safety and Insurance Board (the “Board”) found that underlying pre-existing myocarditis had caused the worker to lose consciousness but that hypothermia had caused his death. Because the worker’s employment significantly contributed to his death, the worker’s estate, consisting of his spouse and son, were entitled to survivor benefits from the Board.

The Right to Sue Application

Concurrently, the worker’s father, mother, and sister (collectively, the “respondents”) filed an action in the civil courts against the employer and the company licensed to harvest the location where the worker’s body was found (collectively, the “applicants”). The worker’s estate, spouse, and son were not parties to the civil action.

In response, the applicants sought a determination from the Tribunal regarding whether the respondents’ civil action was barred by the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “Act”). The applicants argued that the Act extinguished both the worker’s right of action and the respondents’ derivative claims — which included claims under the Family Law Act, R.S.O. 1990, c. F.3 — in respect of his work-related fatality.

The Tribunal concluded that the Act removed the right for the worker and his estate to sue the applicants. This conclusion was based on the following findings:

  • The applicants were registered Schedule 1 employers at the time of the worker’s death.
  • The worker was directly employed by one of the applicants at the time of his death.
  • The worker had been engaged in his employment duties at the time of his fatal accident, and these duties significantly contributed to his death. Although the worker had suffered from pre-existing myocarditis and had lost consciousness at work after experiencing a myocarditis incident, the coroner’s examination found that the worker had resumed spontaneous circulation and respiration after his myocarditis incident. Moreover, the evidence showed that the worker’s death ultimately resulted from hypothermia because the worker was working alone, unable to access rescue, and exposed to cold weather.

However, despite finding that the worker and his estate had lost their right to sue, the Tribunal determined that the respondents could continue their civil action against the applicants. Key to this determination was the Tribunal’s finding that the respondents were neither “survivors” nor “dependants,” as defined under the Act. The Act’s definition of “survivor” is restricted to the spouse, child, or dependant of a deceased worker. Parents and siblings are considered “dependants” under the Act only if the parent or sibling was “wholly or partly dependent upon the worker’s earnings.” No evidence demonstrated that the respondents were dependent on the worker in this fashion.

Sigurdson is another noteworthy decision in the Tribunal’s ongoing efforts to clarify the jurisdictional scope created by the Act. Like other recent decisions, Sigurdson confirms that the Act does not bar all actions that may be brought in respect of a workplace accident and that the ‘right to sue’ test requires more than mere factual linkage to a compensable injury/illness. As the Tribunal wades through the overlapping issues handled by the civil courts and workers’ compensation adjudicators, it is expected that the Tribunal will continue to keep top of mind the language in the Act and the purpose behind the no-fault insurance scheme. Practitioners and workplace parties should similarly consider the types of claims intended to be relinquished in the historic trade-off, as this may help prevent claims from being raised in an improper forum.

About the Author

Cassandra Ma is the Director of Knowledge Management & Professional Development at Filion Wakely Thorup Angeletti LLP, one of Canada’s leading management-side labour and employment law firms. She is also the 2021-2022 Chair of the OBA’s Workers’ Compensation Section.

Any article or other information or content expressed or made available in this Section is that of the respective author(s) and not of the OBA.