How far does the limit on legal action for worker injury go?
Question: If an employee makes a workers’ compensation claim for an injury but is denied, can the employee then pursue legal action related to the injury?
Answer: Worker’s compensation provides employees the ability to obtain financial compensation for a workplace injury or disease, without having to pursue legal action how they were injured or who caused the injury. In exchange for this benefit, workers are usually limited from pursuing their employers.
In Ontario, workers compensation is governed by the Workplace Safety and Insurance Act (the Act). The Act provides some guidance for when a worker may pursue legal action with respect to a workplace injury.
The Act states:
• that a worker who is employed by a Schedule One employer is not entitled to pursue legal action against any Schedule One employer or a director, executive officer or a worker employed by a Schedule One employer, for any workplace injury or disease.
• that a worker who is employed by a Schedule Two employer is not entitled to pursue legal action against the worker’s Schedule Two employer or a director, executive officer or a worker employed by the worker’s Schedule Two employer, for any workplace injury or disease.
In some circumstances, a worker may have the option to pursue benefits under the Act or commence an action against the at-fault party or parties in respect of the injuries. If the worker elects to pursue benefits under the Act, the worker forfeits her right to pursue legal action against the employer and/or any at-fault party regarding the same injury.
Generally speaking, if you choose to claim worker’s compensation you forfeit the right to pursue any other person for the injuries resulting from the workplace incident.
However, an employee whose claim has been denied because her employer’s business activity is not required by law to be registered with the Workplace Safety and Insurance Board (WSIB) and the employer has not applied for voluntary coverage through the WSIB, may be able to pursue a legal action relating to the workplace injury.
Stuart Rudner is the founder of Rudner Law, an employment law firm in Markham, Ont. He is the author of You’re Fired: Just Cause for Dismissal in Canada published by Thomson Reuters Canada. He can be reached at [email protected] or (416) 864-8500. This column was written with the assistance of Anique Dublin, a law clerk with Rudner Law.
