The Right to Sue: Workplace Injuries and the WSIA

**Written by Adele Zhang, Summer Student at Lee Workplace Law

In Ontario, employers are generally required to obtain Workplace Safety and Insurance Board (“WSIB”) coverage for their workers. WSIB coverage provides legal protection to employers in the case of a workplace injury and offers compensation and other services to employees who are injured during work.

However, in exchange for having access to compensation through the WSIB, an employee’s right to bring civil lawsuits for workplace injuries has been limited by the provisions of the Workplace Safety and Insurance Act (the “WSIA”).

An employee’s right to bring a civil lawsuit was the topic of a recent decision by the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). In this case, the WSIAT considered whether an employee who was injured in a parking lot during the course of his employment could sue the third-parties who owned and managed the parking lot.


Facts:

Mr. Li was a bakery manager at S Ltd. supermarket. S Ltd. was a Schedule 1 employer under the WSIA, meaning that it was mandated to obtain WSIB coverage for its workers.

As part of Mr. Li’s work responsibilities, he regularly visited suppliers to sample and purchase products for the grocery store. On December 28, 2012, Mr. Li visited one of the supplier bakeries after his normal work hours to purchase products for the grocery store. Mr. Li had visited this bakery multiple times in the past. As he was leaving, Mr. Li slipped in the parking lot and injured himself.

Mr. Li sued the property owner and property manager of the bakery for his injuries. However, in response to the civil lawsuit, the defendants filed a right to sue application with the WSIAT. In this application, they argued that the WSIA prevented Mr. Li from filing a civil claim for the injuries he suffered as they were work-related.


Analysis:

Pursuant to sections 27 and 28 of the WSIA, workers of a Schedule 1 employer who sustain injuries that arise in the course of their employment are prohibited from commencing actions in respect of those injuries against their own employer and other Schedule 1 employers.

This is because Schedule 1 employers are required by legislation to pay premiums to the WSIB and are protected by a system of collective liability. Therefore, they are relieved of individual responsibility for actual claim costs. Instead, a worker is entitled to claim WSIB benefits where their injury is sustained during the course of or arising out of their employment.

Some examples of Schedule 1 employers include employers in retail and wholesale trades, the transportation industry, and the construction industry. For a full list of Schedule 1 employers, please consult the WSIB’s website.

In this case, the defendants were all Schedule 1 employers. Even though the accident occurred after Mr. Li’s scheduled work hours, the WSIAT held that the visit was incidental to his employment, regardless of the time of visit. The WSIAT also found that Mr. Li’s “chit-chat” with the bakery employees after he had ordered the product was not sufficient to render the visit outside the course of his employment.


Outcome:

The WSIAT held that because Mr. Li was injured during the course of his employment and because the defendants were both Schedule 1 employers, Mr. Li did not have a right to commence a civil lawsuit against the defendants. Instead, Mr. Li had six months from the date of the decision to file a claim for benefits with the WSIB.


Takeaways:

If an employee is injured during the course of their employment and their employer and any other implicated parties are all Schedule 1 employers, the employee may be barred from bringing a civil lawsuit to claim damages for their injury. This may be the case even if the injury occurred off work premises and outside normal work hours.

Workplace injury liability and the WSIB’s coverage can be complicated. Employers and employees alike are encouraged to seek legal advice when dealing with these issues. Lee Workplace Law would be happy to help.