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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 1896 15
1/8/2016
G. Dee

  • Right to sue
  • Worker (contract of service)
  • Benefits (working illegally in Canada)
  • Statutory illegality

The plaintiff in a civil case was injured when his hand got caught in a meat grinder. The plaintiff brought an action against his employer and the property owner. The defendants applied to determine whether the plaintiff's right of action was taken away. At the time of the accident, the plaintiff was in Canada on a student visa and was working without legal immigration authorization. The plaintiff submitted that the WSIA did not apply to undocumented workers. The plaintiff also submitted that the defendant employer intended to evade the application of immigration legislation, the WSIA and other legislative schemes by paying cash to an undocumented worker and that, accordingly, the doctrine of statutory illegality should apply, so not now be allowed the protection of the WSIA. A worker is defined in the WSIA in an inclusive manner. It also contains provisions specifically excluding certain classes of workers but the excluded classes do not refer to undocumented workers. Section 73 contains provisions regarding minors. The provisions do not specifically indicate that illegally employed minors are entitled to workers' compensation benefits but the provisions assume that they are entitled to benefits and then outline potential consequences for the employer. There are also specific provisions excluding certain classes of individuals, such as s. 11 regarding casual employment. The Vice-Chair concluded that employment of an individual in contravention of a law does not, by itself, preclude the application of the WSIA. Further, when classes of workers are intended to be excluded from application of the WSIA, they are explicitly identified. In addition, the Vice-Chair stated that the inclusion of coverage for undocumented worker is not obviously irrational from a policy perspective. As well, previous Tribunal decisions have included benefit coverage for undocumented workers. According to the doctrine of statutory illegality, where a contract is expressly or impliedly prohibited by statute, a court may refuse to grant relief to a party when, in all the circumstances, it would be contrary to public policy to do so. The Vice-Chair found that the conduct of the employer demonstrated significant disregard for both its legal and ethical obligations to its employee. The plaintiff's hand was stuck in the grinder for a prolonged period. The employer did not want to call an ambulance and told the worker to lie about the circumstances of the accident. However, the plaintiff also appeared to have participated in employment that he likely knew was not in compliance with immigration laws. The Vice-Chair concluded that the doctrine of statutory illegality could not be relied upon. The Vice-Chair had authority to determine matters flowing from specific provisions of the WSIA, whereas the doctrine of statutory illegality is a common law doctrine of judicial creation. The Vice-Chair did not have authority to apply the WSIA based upon broad public policy concerns that are not based on specific Human Rights Code or Charter considerations. In any event, even if the Vice-Chair had authority to apply the doctrine of statutory illegality, it should not be applied in this case. The doctrine does not apply to give one party to an illegal contract with an advantage over the other party. The doctrine exists to protect the justice system from lending its assistance to a party to an illegal or immoral contract. The plaintiff wants to use the doctrine to prevent the defendant's access to provisions of the WSIA while, on the same facts, the plaintiff is seeking to rely on the courts to achieve a remedy in the civil proceeding. The Vice-Chair also noted that there is a public interest not in prohibiting employment arrangements but in ensuring that such arrangements comply with employment laws and that rights under such arrangements be enforceable. The potential for exploitation of individual workers would be considerations if employment laws were not enforceable. The Vice-Chair concluded that the plaintiff's right of action was taken away. He was entitled to claim workplace insurance benefits under the WSIA.