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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 3343 16
7/25/2018
J. Josefo

  • In the course of employment (contemporaneity)
  • Right to sue

The plaintiff in a civil case was a domestic worker. She was injured when she slipped and fell on a sidewalk in February 2011, while walking her employer's dog. The plaintiff brought an action against the city and against the contractor of the city that was responsible for clearing snow. The contractor applied to determine whether the plaintiff's right of action was taken away. The Vice-Chair noted that the city, a Schedule 2 employer, was not a party to the application.
The plaintiff was a worker in the course of employment at the time of the accident.
The contractor was a Schedule 1 employer. Section 28(3) of the WSIA provides that, if workers of an employer were involved in the circumstances in which the worker sustained an injury, s. 28(1) applies to take away the right of action if the workers were acting in the course of employment. The contractor had workers who were in the course of employment at the time they were clearing the snow or should have been clearing the snow. The Vice-Chair agreed with Decision No. 2273/03 that the wording of s. 28(3) is broad enough to include nonfeasance as well as misfeasance.
The Vice-Chair rejected the plaintiff's submission that the contractor was somehow subsumed with the city (a Schedule 2 employer) so that the plaintiff (a worker of a Schedule 1 employer) would be able to sue the contractor (as well as the city). The Vice-Chair found that the city chose to rely on contractors to meet some of its snow clearing obligations.
The plaintiff's right of action against the contractor was taken away.