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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 1970 16 I
12/7/2016
G. Dee

  • Delay (right to sue)
  • Right to sue (statutory accident benefits)
  • Standing (insurer)

The plaintiff in a civil case was injured in a motor vehicle accident in a parking garage. The plaintiff brought an action against the garage and the other driver. The insurer and the garage applied under s. 31 of the WSIA. It was agreed that the plaintiff was a worker in the course of employment at the time of the accident. The Board has established a claim regarding the accident. The applicants submitted that the Board was subrogated to the plaintiff's cause of action and that the plaintiff had no standing to bring the action. The plaintiff disputed that the claimed workplace insurance benefits and that, accordingly, the Board is not subrogated to his cause of action. In this decision, the Vice-Chair considered a number of preliminary matters. The plaintiff objected the standing of the insurer to bring this application because the insurer may not have an obligation to pay statutory accident benefits, as there was a dispute whether the applicant insurer or a different insurer had the obligation to pay benefits. The Vice-Chair noted that, under s. 31(1), a party to an action or an insurer from whom statutory accident benefits are claimed may apply. The applicant was an insurer from whom accident benefits have been claimed. This was sufficient under s. 31 to create standing for the insurer. The plaintiff also argued that the application should be barred for delay. The Vice-Chair found no authority to refuse to accept jurisdiction on a s. 31 application based on delay in initiating the proceedings. The Vice-Chair directed the Tribunal Counsel Office to request a decision from the Board regarding whether the plaintiff has made an election to claim workplace insurance benefits and whether the Board considers itself subrogated to the plaintiff's cause of action. If the Board considers itself subrogated to the plaintiff's cause of action, the Vice-Chair also wanted to know whether the Board intends to pursue the cause of action on its own or, if not, whether it will authorize the plaintiff to direct the litigation. The Vice-Chair advised the parties that he does not have jurisdiction to review the Board decisions or procedural steps that it has taken.