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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 893 11 I
J. Moore

  • Estoppel
  • Independent operator (truck driver)
  • Worker (test)
  • Right to sue (previous claim for benefits)

The defendants in a civil case applied to determine whether the plaintiff's right of action was taken away regarding a motor vehicle accident between two transport trucks. The issue was whether the drivers were workers or independent operators.
The application was scheduled to be heard in 2011, but the plaintiff advised that he had filed a claim for benefits with the Board, which had been denied. The hearing of the right to sue application was adjourned to allow the plaintiff to appeal the denial of benefits. In Decision No. 782/12, the Tribunal dismissed the appeal, finding insufficient evidence that the plaintiff sustained injuries in the accident.
When the right to sue application reconvened, the defendants submitted that Decision No. 782/12 had implicitly determined that the plaintiff was a worker in the course of employment at the time of the accident and that the Vice-Chair was bound by that decision.
In this decision, the Vice-Chair considered the estoppel issue and the issue of whether the defendant driver was a worker or an independent operator.
There are three pre-conditions for application of issue estoppel: the same question has been decided; the decision which is said to create the estoppel was final; and the parties are the same. In this case, the Vice-Chair found that the first and third pre-conditions had not been met. With respect to the first pre-condition, the issue of whether the plaintiff was a worker or independent operator was not addressed in Decision No. 782/12. That decision operated on the assumption that the plaintiff was a worker. The only issue addressed in Decision No. 782/12 was whether there was a causal link between the accident and the worker's symptoms. With respect to the third pre-condition, none of the defendants had the right to participate in the appeal regarding the claim for benefits.
Even if the three conditions had been met, the Vice-Chair would have exercised his discretion not to apply issue estoppel. At the original hearing that was adjourned, all the parties agreed that it was appropriate to allow the plaintiff to appeal regarding benefits. It was clear to the parties that, if the plaintiff failed in his appeal for benefits, the right to sue application would proceed. Thus, there is no abuse of process.
Therefore, the Vice-Chair proceeded with the hearing of the application.
On the evidence, the defendant driver was a worker in the course of his employment at the time of the accident.
The hearing will reconvene to consider the status of the plaintiff.