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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 1228 14
6/26/2014
G. Dee

  • Jurisdiction, Tribunal (right to sue) (Insurance Act)
  • Legal precedent (consistency)
  • Right to sue (statutory accident benefits)
  • Transportation industry (truck driver)
  • Worker (test)

A truck driver, who was involved in a motor vehicle accident, applied for statutory accident benefits under the Insurance Act. The insurer applied to determine whether the driver's right to claim statutory accident benefits was taken away and, alternatively, whether the driver was entitled to claim workplace insurance benefits. The Tribunal is not required to apply Board policy in right to sue applications. However, it is important to maintain consistency with findings that may have been made had the case come to the Tribunal by way of an appeal regarding entitlement. The Board has policy regarding workers and independent operators, in accordance with which it has developed a trucking industry questionnaire. The Tribunal has decisions regarding determination of worker or independent operator status, including a non-exhaustive list of factors set out in Decision No. 395/94. Based on the trucking industry questionnaire, it was clear that the driver, who did not own or maintain the truck, would be considered to be a worker and not an independent operator. The driver submitted that the questionnaire was not determinative in itself and that the business reality test must still be applied. Questionnaires developed by the Board for particular industries need to be consistent with the Act and Board policy. The Vice-Chair was of the view that, once the Board establishes a standard approach for an industry that is consistent with the Act and Board policy, there is a considerable interest in ensuring that the guidelines are consistently followed in order to best achieve consistency of application. Multi-factorial approaches found in general Board policy and in Tribunal decisions offer great flexibility to deal with a variety of situations but that very flexibility leaves available a great deal of discretion to individual decision-makers such that consistency of adjudication within an industry would be very difficult to obtain. No argument was made that the trucking industry questionnaire was inconsistent with the requirements of the tests for determining worker or independent operator status. Based on the questionnaire, the driver would clearly be considered a worker. In any event, even based on the factors associated with the organizational test set out in Decision No. 395/94, the Vice-Chair would have reached the same result. Accordingly, the driver was entitled to claim workplace insurance benefits in respect of injuries suffered in the accident. The Tribunal did not have jurisdiction under s. 31(1) of the WSIA to make a determination regarding whether the right to claim statutory accident benefits was taken away.