I will take an analysis at the selection of litigation approaches in two different scenarios – (i) workers versus their employer AND (ii) workers versus a negligent third party/ third party’s employer.
In Ontario, the statutory provisions regarding a worker’s entitlement to benefits and right of action are set out in the Workplace Safety and Insurance Act, 1997 (WSIA).
Worker vs. Employer
In order to determine which approach to proceed with, the worker, first of all, has to find out whether his or her employer has WSIB coverage already in place for workers. If the employer does not have WSIB insurance coverage, such as Banks or some employers, which are not mandatory WSIB industries under the Act, it may be open for the workers to sue their own employer, if the worker is injured at work without his or her own fault.
However, if the employer has obtained WSIB coverage in place for his/her workers, the workers cannot commence a civil action against their employer for personal injury at all, but to pursue his or her claim under the WSIB benefits. Whether the person is a Schedule 1 worker, typically employed in construction and industrial settings or such, OR a Schedule 2 worker, such as a government employee, employee of a school board, police officer etc., they are already entitled to be considered for the WSIB benefits, when they are injured in the course of employment --- no matter it is at his or her own fault of injury or not. More information regarding to the classification of Schedule 1 or Schedule 2 entity is available under Employer Classification Manual at the WSIB website.
Most Ontario employers that employ workers must register with the WSIB within 10 days of hiring a full-or part time worker, if they are mandatory WSIB industries.
Worker vs. a negligent Third Party/Third party’s Employer
A third party is a person or company who does not work for one’s company. If a Schedule 1 employee has suffered from a collision in the course of their employment by any negligent third party who is classified under Schedule 1. Pursuant to s. 28(1) of WSIA, the worker can only be entitled to be considered for WSIB benefits, but barred from bringing an action against any employer or third party’s employer in Schedule 1.
But a Schedule 1 worker is not precluded from commencing a lawsuit against any employer other than a Schedule 1 employer. If this is the case, a Schedule 1 worker can elect to pursue the WSIB benefits OR bring a lawsuit against any employer of Schedule 2 or other private companies resulted from a negligent third party. The election must be made within 3 months after the accident occurs or, if the accident results in death, within 3 months after the date of death, according to the S 30(4) of WSIA. Please keep in mind that the civil tort claim should be dealt with by the lawyer(s).
To pursue a lawsuit, one must be qualified within the definition of “worker” on the job, and must be injured during the course of employment by a negligent third party. The definition of “worker” in section 2 of the Act explains that “a person who has entered under a contract of service or apprenticeship”. Whenever there is any dispute pertaining to whether the injured party a worker or an independent contractor, the approach of “organizational test” is used to verify it. If the person is classified as an independent contractor, he or she could sue an at fault third party, but no claim for WSIB benefits.
As for Schedule 2 Workers, such as a government employee, employee of a school board, police officer or such, they can sue anyone except their own Schedule 2 employer with reference to s. 28(2) of the Act. They can elect to pursue for WSIB benefits or commence a civil proceeding to the employer of a negligent third party.
The question on whether to elect for pursuing WSIB benefits OR to commence a civil tort action depends on who is really at fault for the accident. A civil proceeding is only beneficial to the injured worker if the other party is at fault. Otherwise, it is a good idea to stay in the WSIB system, if the ownership of liability becomes an issue in the case.
Disclaimer: This information is not intended to be construed as a legal advice, but strictly for information only in this entire website. Please contact Trustworthy Legal Service for your independent legal advice in your particular situation. The first consultation is also required prior to my retainer of your case.
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