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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 2169 07
2/27/2013
S. Ryan - J. Seguin - F. Jackson

  • Death (suicide) (standard of proof)
  • Wilful and intentional act

The worker was hired by the employer as an apprentice drywaller. Three days later, the worker was found at work with a nail from a nail from a Ramset penetrating his hard hat and head. The worker appealed a decision of the Appeals Resolution Officer denying entitlement for the accident. The issue was whether the injury was an accident or an attempt by the worker to commit suicide. It was noted that Tribunal decisions have followed a common law presumption against suicide. There was discussion as to the standard of proof in rebutting the presumption against suicide. The Panel stated that the outcome of the appeal could only be established with the standard of proof in civil cases and not by some higher standard of proof. The Panel was able to decide this case on the balance of probabilities, without the need to address the issue of the application of the presumption against suicide or the presumption in s. 13(2) of the WSIA. The worker in this case did not die. He testified that he did not attempt to commit suicide. The worker's personal life was in a state of disarray at the time. However, he did not leave a suicide note and there was no persuasive evidence of an expressed or implied desire to commit suicide. The Panel was satisfied that the worker was using the Ramset for the purpose of his work at the time of the injury. He was required to use the Ramset earlier during his shift on the day of the accident. There was a lack of certainty that all work requiring use of the Ramset had been completed. Even if all the framing requiring use of the Ramset had been completed, there may still have been to use the Ramset to repair a loose or damaged track. The employer's theory, that the worker placed the Ramset against the surface of his hard hat, pressed and contracted the barrel reducer and pulled the trigger, was plausible. However, it was also plausible that the worker was attempting to secure track to the ceiling while standing on a wheeled scaffold in a congested area, and inadvertently shot himself. The fact that the worker was wearing his hard hat at the time was supporting evidence that he was in the course of employment. The appeal was allowed.