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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 771 16 I
9/6/2016
J. Moore

  • Jurisdiction, Tribunal (federal worker) (right of action)
  • Jurisdiction, Tribunal (right to sue) (Government Employees Compensation Act)

The plaintiff in a civil action was a passenger in a vehicle driven by the defendant. They were making deliveries on behalf of a federal agency. The defendant brought an application under s. 31 of the WSIA to determine whether the plaintiff's right of action was taken away. In this decision, the Vice-Chair considered whether the Tribunal had jurisdiction over the application. The Government Employees Compensation Act applies is intended to provide compensation benefits to employees of federal undertakings. It does so by empowering provincial workers compensation boards to provide compensation to federal employees. Section 4(2) of GECA provides that employees are entitled to receive compensation at the same rate and under the same conditions as a provided under the laws of the province where the employee is usually employed. Section 4(3) provides that compensation is determined by the provincial boards. Section 12 of GECA provides that, where an accident happens in the course of an employee's employment under circumstances that entitle the employee to compensation under GECA, the employee has no claim against Her Majesty or any officer, servant or agent of Her Majesty other than to claim compensation under GECA. The plaintiff submitted that the Tribunal did not have jurisdiction under s. 31 of the WSIA to apply s. 12 of GECA because s. 31 of the WSIA was related to rights of action, not rates and conditions of compensation as required by s. 4 of GECA. The defendant submitted that the Tribunal had jurisdiction because the plaintiff was not asking the Tribunal to apply provincial right to sue legislation but, rather was asking the Tribunal to apply s. 12 of GECA pursuant to its jurisdiction under s. 31 to hear applications by a party to an action. An earlier Tribunal decision addressed a similar issue and found that the Tribunal could not bar an action under the predecessor provision of s. 31. However, the Vice-Chair noted that the Supreme Court of Canada and the Ontario Court of Appeal have more recently indicated that a broader approach should be taken. Other provincial workers compensation agencies have also taken the broader approach. The Vice-Chair was of the view that the federal legislative intent was to give federal employees the right to apply to the Tribunal for a ruling under s. 12 of GECA. Section 31(1) of the WSIA confers on the Tribunal the authority to hear an application by a part to a legal action to determine whether a plaintiff is entitled to benefits under the insurance plan. If it is determined that the plaintiff is entitled to claim benefits under the insurance plan, s. 12 of GECA would become effective. GECA confers authority on provincial boards to determine rates and conditions of compensation. It is reasonably incidental to that authority to allow the provincial board, through s. 31 of the WSIA, to address s. 12 of GECA. The application in this case asks the Tribunal to make a determination pursuant to the authority granted to it by s. 31 of the WSIA. There is no express conflict between GECA and the WSIA. Section 31 of the WSIA supplements GECA with structure and specificity. The Vice-Chair concluded that the Tribunal has jurisdiction to consider the application.