Two WSIA Actions Dismissed With Many Lessons Learned

Christina Catenacci, BA, LLB, LLM, PhD, Content Editor, First Reference Inc.

The Ontario Superior Court of Justice just dismissed two actions regarding claims under the Workplace Safety and Insurance Act. The Court confirmed the decision of the Vice-Chair of the Workplace Safety and Insurance Appeals Tribunal, and similarly concluded that D lost her right of action under the Workplace Safety and Insurance Act. Additionally, D’s family member also lost her right of action under the Family Law Act, as this claim was derivative in nature and dependent on D’s claim. The Court made a strong comment about the delay with respect to both D’s and D’s family member’s claims-had the claims not been dismissed for the first reason, they would have been dismissed for delay.

What happened?

Back in 2014, there was a motor vehicle accident. D, a pedestrian, was hit by a truck that was being operated by an employee or the employer. D alleged that that she sustained permanent and serious injuries as a result of the accident.

The statement of claim was issued in 2016 by the plaintiffs (D and D’s family member), and the defendants (both the employee and the employer) served their statement of defence and jury notice also in 2016. More specifically, D wanted to bring an action regarding her injuries, and D’s family member wanted to bring a Family Law Act claim regarding her losses (those losses involved general damages for loss of care, guidance and companionship, and value of services performed pursuant to the provisions of the Family Law Act, special damages including out-of-pocket expenses, and damages for economic losses).

The defendants alleged that D was a Schedule I worker under O Reg 175/98 to the Workplace Safety and Insurance Act and was in the course of her employment at the time of the accident; also, the employee was a Schedule I worker and in the course of her employment with the employer at the time of the accident. The defendants pleaded that, as a result, the plaintiffs’ right to sue the defendants was extinguished by section 28 of the Workplace Safety and Insurance Act. That section states:

Certain rights of action extinguished

28 (1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. Any Schedule 1 employer.

2. A director, executive officer or worker employed by any Schedule 1 employer.

Same, Schedule 2 employer

(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. The worker’s Schedule 2 employer.

2. A director, executive officer or worker employed by the worker’s Schedule 2 employer.

Restriction

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.

Exception

(4) Subsections (1) and (2) do not apply if any employer other than the worker’s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. 1997, c. 16, Sched. A, s. 28

The Tribunal’s decision

The hearing proceeded at the Workplace Safety and Insurance Appeals Tribunal in 2019. In 2020, the Vice-Chair decided that D’s right of action was indeed taken away by section 28 of the Act. However, the Vice-Chair declined say the same for D’s family member.

That is, The Vice-Chair was convinced that:

• The employee was a worker under the Workplace Safety and Insurance Act.
• The employee was in the course of her employment under the Workplace Safety and Insurance Act.
• D was a worker under the Workplace Safety and Insurance Act.
• D was in the course of her employment under the Workplace Safety and Insurance Act.
• The Vice-Chair had no jurisdiction under the Workplace Safety and Insurance Act to take away the right of action of D’s family member because there was no evidence that she was a dependant of D.

As a result, the Vice-Chair granted the application of the defendants in relation to D and confirmed that the right of action of D was taken away as a result of section 28 of the Act.

For months, the defendants asked about whether D’s family member wanted to proceed with her FLA claim-five months later, the answer was yes. Following an adjournment, D’s family member appeared and D did not. Eventually, after some confusion about appearances and the court receiving a mysterious bundle of documents, D’s family member requested a reconsideration of the decision of the Vice-Chair.

The problem was that there was no evidence before the court that either plaintiff had commenced an application for judicial review of the Tribunal’s decision.

The Court’s decision

The Court decided the following:

• The Vice-Chair clearly found that D’s right of action was taken away as a result of section 28 of the Workplace Safety and Insurance Act.
• D had six months to file a claim with the Workplace Safety and Insurance Board, and there is no indication that she had done so.
• D’s family member made a request for reconsideration approximately 14 months after the Tribunal’s decision, and D asked for a reconsideration almost 34 months after the Tribunal’s decision.
• The Tribunal emphasized the importance of finality in the decision-making process, and noted that a significant amount of time had passed in this case.
• There was no evidence that D took any steps regarding an application for judicial review in Divisional Court, so D’s right of action remained barred by the Tribunal’s decision.
• Since D’s right of action was taken away, and D’s family member had a claim that was derivative in nature, D’s family member could not have an action under the Family Law Act.

Had the court not decided in this way, D’s and D’s family member’s actions would have been dismissed for delay-the court stated, “The plaintiffs are responsible for moving the action along. They have not done so.”

Therefore, both actions were dismissed. The defendants were entitled to costs.

What can we take from this development?

When there is an accident where “workers” are “in the course of employment,” personal rights of action are taken away pursuant to section 28 of the Workplace Safety and Insurance Act. That is because a different framework is used (the Workplace Safety and Insurance Act) and a different process must be followed (with the Tribunal, not in the courts).

Moreover, it is very important to respect timelines and policies/practices emphasizing finality when dealing with Tribunals and Courts. In this case, both plaintiffs did not fulfill their responsibilities of moving their actions along. This cannot be emphasized enough: the deadlines must be respected and followed.