Families of deceased workers can pursue court action: Tribunal

Relatives weren't dependents of workers and weren't eligible for survivor benefits under workers' compensation legislation
By Jeffrey R. Smith
|hrreporter.com|Last Updated: 10/06/2008

The families of two Ontario workers killed in an automobile accident while being driven to a worksite are not prevented from court action by workers’ compensation legislation, the Ontario Workplace Safety and Insurance Appeals Tribunal has ruled.

TIPS Temporary Help, a Vaughn, Ont., company that supplied temporary workers to worksites for various jobs, used a driver to transport workers from TIPS offices to the worksites. On June 7, 2002, the driver drove the van through a railway crossing barrier and it was struck by a commuter train, killing him and four workers. The families of two of the workers, Yaw Baayah-Boateng and Joseph Lalite, each filed suit in court against the driver’s estate. The driver’s insurance company filed an application to dismiss the suits, arguing the Ontario

Workplace Safety and Insurance Act

(WSIA) prohibited “dependents or survivors” of a worker arising out of a “compensable workplace accident or injury” under the act.

TIPS claimed the driver was an independent contractor hired to drive the workers, but the tribunal disagreed. It found TIPS controlled the driver’s hours of work and payment and the driver worked only for TIPS and no other employer. Therefore, the driver was an employee. For the same reasons, Boateng and Lalite were employees, even though they were temporary workers.

However, the tribunal also found the workers’ families did not qualify for a workers’ compensation claim because they weren’t “dependents” or “survivors” within the meaning of the WSIA.

Boateng was an immigrant from Ghana who had come to Canada as an international student. His family lived in Ghana and there was no evidence he sent financial support back to them. The WSIA’s definition of dependents required them to be “wholly or partly dependent upon the worker’s earnings at the time of his death.”

Lalite did occasionally make rent payments to his parents and his wife was granted survivor benefits after his death. However, the tribunal agreed with the Workplace Safety and Insurance Board’s initial finding that there would have to be regular payments that actually supported them and was “beyond room and board.”

The tribunal found neither family could be considered dependent on the workers under the WSIA and therefore were not prevented from filing actions related to the deaths in family court. See

Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 1921/06

(March 4, 2008), G.R.W. Gale, V-Chair.

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