Ontario worker hit by truck, driver both in course of employment under WSIA
An Ontario court has upheld a Workplace Safety and Insurance Appeals Tribunal decision that a pedestrian who was hit by a truck cannot pursue personal legal action because both the pedestrian and the truck’s driver were in the course of their employment and thus subject to the province’s workers’ compensation scheme.
Heritage Lawn Care is a lawn maintenance company in Ottawa. On July 8, 2014, a Heritage employee was driving a company truck while performing her job duties and hit a pedestrian. The pedestrian was also performing her work duties when she was hit.
According to the pedestrian, she suffered permanent and serious injuries from the collision. She applied to the Ontario Workplace Safety and Appeals Tribunal to determine whether she had the right to sue Heritage Lawn Care and its employee for her injuries. The pedestrian’s mother also applied, as she wanted to sue under the Ontario Family Law Act for general damages for loss of care, guidance and companionship, and value of services performed by her daughter. She also claimed special damages for economic losses.
The Ontario Workplace Safety and Insurance Act (WSIA) denies workers employed by employers specified in Schedule I of the act to commence an action against the employer or its workers in respect of a workplace injury or disease. If the employer’s workers were involved, then the prohibition only applied if the workers were acting in the course of their employment.
Pursuing a workers compensation claim forfeits the right to pursue any other person for workplace injuries, even if the claim fails, says an employment lawyer.
Workers compensation scheme
The purpose of the WSIA’s ban on workplace injury-related lawsuits was to support Ontario’s workplace insurance schemes, in which workers lose the right to sue their employer in exchange for entitlement to workers’ compensation benefits without any fault applied. The WSIA also provided that if a worker’s right of action is taken away in favour of the worker’s compensation scheme, the worker’s spouse, child, dependant, or survivors cannot launch a legal action either.
In March 2020, the tribunal found that the rights of action for the pedestrian who was struck were taken away by the WSIA because the pedestrian was a worker of a Schedule 1 employer and was in the course of employment when she was hit by the truck. In addition, the worker who hit her was also a worker in the course of her employment.
As a result, the injured pedestrian was free to file a claim for her injuries with the Workplace Safety and Insurance Board (WSIB) within six months, although the pedestrian failed to do so, said the tribunal in dismissing the application.
The tribunal also dismissed the claim of the pedestrian’s mother, as it found that her claim was derivative of the pedestrian’s claim. Because the pedestrian could not maintain an action for damages against Heritage Lawn Care and its employee, the mother could not either, the tribunal said.
An Ontario worker could not sue the owner of the property where she worked for a workplace injury because the owner company was related to her official employer.
Requests for reconsideration
The mother filed a request for reconsideration of the decision in May 2021, asking for a new hearing or review of the evidence, or permission to take the matter to court. The injured pedestrian filed her own request for reconsideration in January 2023, requesting a review for time to take the matter to court.
Heritage Lawn Care and its employee sought an order dismissing both actions and upholding the tribunal’s decision.
The court noted that both requests for reconsideration were well outside of the tribunal’s six-month guideline for reconsideration, which was in place because of “the importance of finality in the decision-making process.” There was no evidence that the pedestrian took any steps towards an application for judicial review, which generally must be made no later than 30 days after a decision, said the court.
As a result, there was no reason to change the tribunal’s decision that the pedestrian’s right of legal action related to her injury was barred by the WSIA, the court said.
The court also agreed with the tribunal that the mother was not entitled to maintain her claim against Heritage Lawn Care and its employee because it was derivative of the pedestrian’s claim that was taken away by the WSIA.
The court added that even if it had disagreed with the tribunal’s decision, both claims would be dismissed due to unreasonable delay. See Delanty v. Hogan, 2023 ONSC 2501.
A workers compensation proceeding may be cheaper than a civil action, but a change in the employer’s workers compensation rating could have a financial impact, say employment lawyers.
