Under the Workplace Safety and Insurance Act, a worker employed by a Schedule 1 employer who is injured in the course of employment is barred from commencing a civil action against another Schedule 1 employer. This is because Schedule 1 employers are required to contribute to the WSIB insurance fund.
The rationale behind this legislative provision is rooted in the historic “trade-off” which forms the foundation of the Ontario worker’s compensation system. This trade-off ensures that workers who are injured in the course of employment receive benefits through a non-fault insurance plan while at the same time employers are protected against civil actions by those same workers.
The protection that is offered to employers serves as a useful tool for Schedule 1 employers who are named as defendants in civil actions. Where the evidence suggests that the plaintiff was injured while they were in the course of their employment with a Schedule 1 employer, an application may be brought before the Workplace Safety and Insurance Tribunal (WSIAT) to determine if the plaintiff’s right to sue is statute barred.
On such an application, the WSIAT considers the nature of the employment relationship as well as the place, time and activity surrounding the accident. Where it finds that either the worker was in fact an independent operator, as opposed to a worker, the plaintiff will be permitted to continue with their action. Similarly, where there the place, time and activity giving rise to the accident are not sufficiently connected with the employment itself, the civil action may proceed.
The Divisional Court recently considered the employment relationship of the plaintiff in Wood v. Enbridge Gas Distributions Inc. 2011 ONSC 5494. In Wood, the plaintiff was a pipe fitter who was injured in an explosion. He then commenced an action, alleging that he was an independent contractor of Double G Gas Services (“Double G”) at the time of the explosion. The defendant brought a right to sue application before the WSIAT, in which it alleged that the plaintiff was in fact a worker. The WSIAT agreed, and the plaintiff appealed.
In dismissing the appeal, the Court emphasized a number of findings of the WSIAT. Particularly, while it was accepted that the both the plaintiff and Double G intended that the plaintiff would be an independent contractor, it did not mean that he actually was an independent contractor. In this regard, the WSIAT focused on the realities of the employment relationship, and not simply on what the contractual arrangement reflected.
This case highlights the importance and nuance of the right to sue provisions contained in the Workplace Safety and Insurance Act. However, it also serves as a reminder to look beyond the contract, tax returns and labels and to instead focus on the true nature of the employment relationship. By thinking outside the box, the exposure that comes with a civil action may be avoided.