The Workplace Safety and Insurance legislation from its inception has been based

on a “no fault system”.  Workers gave up their right to sue their employers in

exchange for access to a no-fault insurance scheme. 

A worker’s cause of action for damages for personal injury arising out of an accident

 or occupational disease is barred by Sections 26 to 28 of the Workplace Safety and Insurance Act 1997, S.O. 1997.  A worker employed by a Schedule 1 employer (as identified in R.R.0. 1990, Reg. 1102) cannot sue any Schedule 1 employer where the injury arose in the course of employment. This bar is against both the worker’s

employer and other Schedule 1 employers.  Injury has been found to include a worker’s death[1] and the bar extends to punitive and special damages.[2] 

The Courts have held on numerous occasions that the Appeals Tribunal has

exclusive jurisdiction to decide on the issue of whether a cause of action can proceed.  Litigators can bring an application under Section 31 of the Act to

determine if the Act bars the litigation or whether there are limits to the recovery. 

Three types of issues can be adjudicated and determined under Section 31:  “a plaintiff’s right to compensation; whether a right of action is taken away; or whether

 a right to recover damages, contribution, or indemnity is limited.”[3]  The most opportune time to make an application is following discoveries.  Information can be obtained during examinations to support the application.

In making its decisions, the Tribunal reviews several preliminary issues, the first being whether the individuals are workers or employers under the Act.  Many individuals

who consider themselves executive officers or independent operators may in fact

be workers as defined in the legislation.  The legislation defines a worker as “a person who has entered into or is employed under a contract of service.”[4]  It is not

necessary that a person be under the direct control of an employer to be a worker.

The second issue is to identify whether the employer is a Schedule 1 or 2 employer. 

If the employer falls under Schedule 1, a workers’ action for damages for personal injury arising in the course of employment is barred.  Schedule 2 employers may be

at risk of further litigation. They are only protected against civil actions for work

related injuries brought by their own workers unlike Schedule 1 employers who are protected from most civil actions.  There is also another category of employer that is not included in either Schedule 1 or 2.  This class of employers can opt into the Workplace Safety Insurance scheme and therefore may be afforded the protection

 of Sections 26-28[5].  A separate set of restrictions on commencing civil actions on behalf of federal government employees exists under Section 12 of the Government Employees Compensation Act.[6]

The Tribunal must also determine whether the worker suffered a personal injury.  The term “personal injury” has not been defined in the Act however has been accepted that it means an injury to the person of the worker.  Section 26[7] does not bar an action for damages to personal property. The injury must occur by accident. 

Accident has a very specific meaning under the Workplace Safety and Insurance

 Act.[8]  It is defined as:

            “a)  a willful and intentional act, not being the act of the worker;

              b)  a chance event occasioned by a physical or natural cause, and

              c)  disablement arising out of the course of employment”[9]

This definition was the focus of the numerous applications, and in particular the

phrase “willful and intentional act”.  A victim of horseplay or a victim of sexual harassment could be covered under this section. The “act” could be the act of a complete stranger or a coworker.  Regardless of the nature of the accident, the

event must arise in and out of the course of employment.  The “arising out of” test requires the establishment of a causal relationship between the work activity and

the injury.  The issues of place, time and activity must be examined.  Generally, it is presumed that the injury occurs in the course of employment where the accident occurs while the worker is carrying out work- related tasks, or something reasonable, incidental to them.[10]  There have been many cases which have examined this

issue, including what constitutes premises, traveling[11] and dual purpose trips.

WSIAT  Decision 36/00[12] which involved an application by Sears Canada Inc.

 provides an interesting analysis of this concept.  While a situation where a stranger

or enemy walks into a workplace and shoots a worker dead will clearly never be found to arise out of the course of employment, a shooting involving coworkers required a careful analysis of the work relationship between the individuals, their personal relationship and the motivating factors.

A quick examination of the case law concerning right to sue applications reveals

that how a claim is framed and the nature of what is being claimed is not determinative whether an action is barred.  Rather, the determinative factor is whether the underlying cause of action was the compensable accident.

Wrongful dismissal claims have, for the most part, been allowed by the Tribunal.  In fact, in WSIAT Decision 237/03, the Tribunal stated that a right of action for wrongful dismissal “is never taken away”[13].  However, in a recently released decision

involving an application by Siemens Canada[14], the panel accepted the

principle that an action for wrongful dismissal can lie outside the workers compensation legislation but also noted that a worker cannot avoid a bar to an action by framing an action in contract.  After reviewing the statement of claim, the panel found that the action was inextricably linked to the compensable accident. 

 In this case, as in 28/94[15], it was the workplace injury that prevented the plaintiff

from performing his duties at work.  The contract was frustrated and the worker dismissed.

Tribunal decisions have barred actions brought on the grounds of intentional torts[16], occupier’s liability[17], breach of contract[18] and injurious falsehood[19].  Thus far, t

he Tribunal has allowed claims made for disability insurance, grievances under collective agreements and mental stress claims under the post-1998 Act.

Family Law Act claims may be allowed depending on the relationship to the worker

 of the individuals making the claim.  The decision of Meyer v. Ontario (Workers Compensation Board) [20]  held that the Tribunal had no jurisdiction to restrict the Family Law Reform Act claims on non-dependent family members.  The legislation reflects this decision.  Section 27(2) states: “If a worker’s right of action is taken away under section 28 or 29, the worker’s spouse, same sex partner, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the

Family Law Act.”[21]  Dependants have been defined in Section 1[22]  as a person

who was wholly or partly dependent upon the worker’s earnings.  The persons specifically listed include a parent, stepparent or person who takes on this role,

sibling or half sibling, grandparent or grandchild.  Children are defined in the Family Law Act[23].  There are many cases which have dealt with the right to FLA benefits.  However, many are now outdated and irrelevant given the legislative changes. 

The pre 1997 Act removed the right of action of non-dependant family members causing what has been considered as unjust and egregious outcome.[24] 

The issues being decided in right to sue applications are the flip side of entitlement issues under the Workplace Safety and Insurance Act[25].  In considering whether clients should pursue a civil action, practioners should note that the statutory time

limit for filing a claim for benefits with the Board is extended until six months after the Tribunal renders a final decision concerning a right of action[26].  The fact situations

can become complex and a thorough review of the benefits and costs are always recommended prior to launching a claim.