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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 173 05 I
3/4/2013
A. Baker

  • Death (maintenance of claim by estate)

The common law spouse of a deceased worker applied for authority to pursue a claim on behalf of the worker's estate. The worker was previously married. There were two sons from that marriage. The worker did not leave a will, had no significant assets and was not married at the time of his death. In determining the beneficiaries of an Ontario estate, the Tribunal is guided by the Succession Law Reform Act (SLRA). In the case of intestate succession, the persons entitled to share in an estate are the spouse and children of the deceased as defined in the SLRA. The definition of spouse in the SLRA does not include a common law spouse. On this application, the Tribunal is not making a determination as to who should receive benefits that may flow to the estate as a result of the appeal. Any benefits would flow to the estate and not directly to the common law spouse. The applicant was the worker's common law spouse for 12 years. The sons have not come forward independently to show an interest in pursuing the appeal. However, the most important factor to the Vice-Chair was the efforts, or lack thereof, of the applicant to notify the sons and obtain their consent. In this case, the Vice-Chair found that such efforts were inadequate to meet the requirements of the Tribunal's practice direction on Appeals Involving Deceased Workers. It appeared that the applicant made no direct attempt to contact the sons. She left that task to the worker's representative, who attempted to contact them by telephone. There should be greater efforts made to contact the sons, such as efforts to locate their addresses and registered letters. At this time, the application does not meet requirements for an order to represent the estate. The Vice-Chair noted that the applicant is not barred from obtaining additional evidence and from re-applying to the Tribunal.