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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
J. Moore

  • 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.
The right to sue application reconvened. In Decision No. 893/11I, the Vice-Chair found that the defendant driver was a worker in the course of his employment at the time of the accident.
In this decision, the Vice-Chair found that the plaintiff was also a worker in the course of employment at the time of the accident.
Section 28(1) of the WSIA provides that a worker of a Schedule 1 employer is not entitled to commence an action against any Schedule 1 employer or a worker employed by any Schedule 1 employer. Section 27(1) provides that s. 28 applies with respect to a worker who sustains an injury that entitles the worker to benefits.
The plaintiff submitted that he was not barred from proceeding with his action under s. 28 because he was not entitled to benefits within s. 27, as the Board had previously denied entitlement in a decision that was upheld by the Tribunal. However, the Vice-Chair found that the word "entitles" in s. 27 means more than the fact of receiving benefits. Rather, it means having the right to claim benefits, even if benefits are not, in fact, granted. Section 27 must be read in the context of the purpose and intent of the right to sue provisions in the Act. In particular the Vice-Chair noted s. 31(1)(c) regarding the determination of whether a plaintiff is entitled to claim benefits. When a person's right of action is taken away, that person has the right to be considered for entitled based on that person's status as a worker of a Schedule 1 employer. Section 31(1)(c) does not guarantee benefits but provides access to adjudication. If evidence fails to support entitlement, that determination does not operate retrospectively to alter the worker's status under s. 31.
In this case, the plaintiff filed a claim. The Board found, in a decision upheld by the Tribunal, that there was insufficient evidence of a causal link between the accident and the injuries claimed to have been suffered as a result of the accident. The Vice-Chair concluded that s. 27(1) did not apply in the present case to exempt the plaintiff from the provisions of s. 28.
The plaintiff's right of action was taken away.