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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 1992 18
5/8/2019
B. Kalvin - D. Thomson - J. Crocker

  • Dependency benefits (common law spouse)

The worker died in a fatal accident in August 2009. The appellant appealed a decision of the Appeals Resolution Officer finding that the appellant was not the common law spouse of the deceased worker and that, accordingly, the appellant was not entitled to survivor benefits.
The definition of spouse in the WSIA includes a person with whom the person is living in a conjugal relationship outside marriage if the two persons have cohabited for at least one year.
The worker and the appellant met in the spring of 2007. At that time, the worker was in his late 50s. Both the worker and the appellant had been married previously. They dated for about two months, following which they began living together. They each owned a house. They lived together virtually all the time in either his house or her house. They both had keys to each house. They shared expenses and household chores. They went on holidays together. They became formally engaged and set a wedding date for June 2010. They jointly purchased a piece of land on which they planned to build a house.
Decision No. 2621/07 discussed some jurisprudence related to the meaning of the terms cohabit and conjugal. The Panel found that, by the vast majority of the criteria identified in that case, the worker and the appellant in this case were cohabiting in a conjugal relationship.
Referring to a Supreme Court of Canada case, the Panel noted that the fact that the worker and the appellant lived in two residences did not mean that they were not cohabiting. Cohabitation is not synonymous with co-residence. Further, periods of time during which they were not under the same roof did not necessarily mean that they were no longer common law spouses, unless there was evidence of a settled intention to end the relationship. In this case, there was evidence of some conflict and of short periods of separation. However, there was no evidence of a settled intention on the part of either the worker or the appellant to end the relationship.
The Panel concluded that the worker was cohabiting with the appellant in a conjugal relationship for more than one year at the time of the worker's death in the accident in August 2009. The appellant was a spouse for the purposes of the WSIA and was entitled to survivor benefits.
The appeal was allowed.