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Hillier & Hillier Successfully Resists Defence Application to Remove the Plaintiff’s Right to Sue

Updated: Jul 24

In Decision No. 919/23, 2023 ONWSIAT 1672, Eddie Wiley of Hillier & Hillier successfully resisted the insurer’s section 31 Application under the Workplace Safety Insurance Act to remove the Plaintiff’s right to commence a civil action against the Defendant arising from a motor vehicle accident of February 26, 2015.


At the time of the February 26, 2015, accident, the Plaintiff ran his own incorporated business repairing broken down vehicles. This employment fell under a schedule 1 WSIB listed industry. The Plaintiff was also an executive officer of his corporation and quite likely an independent operator as he had complete control of the business, which consisted of one person (himself) at the time of the accident.


On February 26, 2015, the Plaintiff was involved in a motor vehicle accident with the Defendant and subsequently commenced a civil action. The Defendant was a Schedule 1 worker and employee of a corporation that provided trucking services. Both the Plaintiff and the Defendant were in the course of their employment at the time of the accident.  


Section 28 of the Workplace Safety Insurance Act precludes a worker from commencing an action against another schedule 1 worker, employer, or executive officer while all parties are in the course of their employment (ie. workplace accidents/injuries). This is known as the prohibition on the right to sue.


The prohibition on the right to sue under section 28 of the Act does not apply to executive officers such as the Plaintiff unless the executive officer applied for optional WSIB insurance. Executive officers are not automatically covered by WSIB insurance. However, if an executive officer applies for optional insurance, then he/she will become a worker to whom the WSIB insurance plan applies and will lose their right to sue as a result of a workplace-related incident.


Therefore, the issue in the subject decision was whether the Plaintiff applied for optional insurance and therefore lost his right to sue the Defendant?


The Plaintiff testified at his discovery examination that he was paying WSIB premiums and thought that he was covered through WSIB. However, at no time did the Plaintiff believe he had forfeited his right to sue other workers as a result of a workplace incident. At no time did he complete an “optional/insurance” request change form or satisfy any of the technical requirements in the relevant operational policy manuals to obtain optional insurance. The Workplace Safety Insurance Act and relevant policy manuals require an executive officer to consent to an application to become a worker and therefore lose the right to sue. The Consent form requires the executive officer’s signature, and where there is no signature, there is no WSIB coverage. The optional insurance form also clearly indicates that the executive officer will lose the right to sue as a result of a workplace accident and requires the executive officer to acknowledge and consent to the loss of this right. The Plaintiff did not meet these technical requirements.


The Defendant insurer nevertheless argued that although the Plaintiff did not meet the technical requirements to apply for optional insurance, he should nevertheless be deemed a worker based on his belief that he was covered by WSIB and paid premiums for coverage.


The Plaintiff argued that a belief as to WSIB coverage is not sufficient to subvert the technical requirements of the Act. If the Plaintiff failed to comply with these requirements then he cannot be deemed a worker to whom the plan applies, and consequently, will not have lost his right to commence a civil action against the Defendant. The Plaintiff argued that his belief he held WSIB coverage was mistaken as he did not believe he forfeited his right to sue.


The Workplace Safety Insurance Act Tribunal rejected the insurer’s argument and accepted the Plaintiff's argument. The Tribunal stated that although the Plaintiff testified that he thought he had coverage, he also thought he did not lose his right to sue. As such he did not voluntarily surrender his right to sue in exchange for optional coverage. Further, even if he knew he surrendered his right to sue, he still would not be entitled to coverage because he did not meet the technical requirements to obtain optional insurance. As such, there was no language or section in the Workplace Safety Insurance Act to enable the tribunal to deem the Plaintiff a worker in these circumstances.


The decision is clear that one must meet the technical requirements of the Act to obtain optional WSIB insurance and surrender their right to sue.


As a result, the Plaintiff’s right to sue had not been taken away by the Workplace Safety Insurance Act and his action against the Defendant was allowed to proceed.


The full decision can be found at: Decision No. 919/23, 2023 ONWSIAT 1672.


POTENTIAL FOR ABUSE OF THE WSIAT PROCESS - DELAY BENEFITS THE INSURER AND PREJUDICES THE PLAINTIFF



This decision also highlights the potential for defendant insurers to abuse the WSIB regime. Defence counsel was aware of the WSIB issue as early as February 2017 and specifically pleaded that the action was barred by the Workplace Safety Insurance Act in its Statement of Defence. The civil action was scheduled to proceed to trial in January of 2022. In November of 2021, the Defendant filed the subject application to the Workplace Safety Insurance Act. The Court ordered that the Trial be rescheduled until the Workplace Safety Insurance Act addressed the Application, which did not occur until November of 2023.


In the absence of a deadline to file section 31 Applications, defendants will be able to file these at the last moment to potentially disrupt a trial. This is extremely prejudicial to the Plaintiff and the full consequences of such delay is explored in another article by Hillier & Hillier which can be found at: “Right to Sue Applications Under Section 31 of the Workplace Safety Insurance Act and the Potential for Abuse.”


If you have been injured as a result of another’s negligence, call Hillier & Hillier at 905 453 8636.

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