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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 3473 18
12/27/2018
M. Crystal

  • Class of employer (municipality)
  • Employer (Schedule 1 and 2 employers)
  • Right to sue
  • Schedule 1 employer (application industries)
  • Statutory interpretation (principles of)
  • Words and phrases (declaration)

The plaintiff in a civil case was a police officer who was injured in a motor vehicle accident in November 2013. The plaintiff brought an action against the driver and owner of the other vehicle. The defendants applied to determine whether the plaintiff's right of action was taken away.
The plaintiff was a worker in the course of employment at the time of the accident. The defendants were a Schedule 1 employer and a worker of the Schedule 1 employer. The worker was in the course of employment at the time of the accident.
The employer of the plaintiff was a municipality. The municipality had been a Schedule 2 employer. In 2009, it wrote to the Board, requesting a transfer to Schedule 1, effective January 2010. In January 2010, the Board wrote to the municipality, confirming that the transfer had been approved.
Section 28(1) of the WSIA provides that a worker of a Schedule 1 employer is not entitled to commence an action against any Schedule 1 employer or a worker employed by any Schedule 1 employer. Section 28(2) provides that a worker of a Schedule 2 employer is not entitled to commence an action against the worker's Schedule 2 employer or a worker employed by the worker's Schedule 2 employer. Thus, a worker of a Schedule 2 employer is not prevented from commencing an action against a Schedule 1 employer or a worker of a Schedule 1 employer.
Section 74(1) provides that, upon application, the Board may declare an employer to be a Schedule 1 employer or a Schedule 2 employer. Section 74(3) and (4) contains provisions regarding the nature of the declaration.
The plaintiff submitted that the Board did not make the declaration required by s. 74, for the municipality to be deemed to be a Schedule 1 employer and that, accordingly, there was no effective transfer to Schedule 1. The plaintiff noted that a transfer from Schedule 2 to Schedule 1 would have a significant impact upon the rights of workers, regarding their ability to commence an action against Schedule 1 employers and workers, and against directors and executive officers of Schedule 1 employers.
In the absence of a definition of "declare" or "declaration" in the WSIA, the Vice-Chair noted legal text on Statutory Interpretation It states that interpretation starts with determining the ordinary meaning, which is not the dictionary meaning but, rather, the meaning that would be understood by a competent language user upon reading the words in their immediate context. Using this approach, the Vice-Chair concluded that the ordinary meaning of the word "declaration" as it appears in s. 74 is a statement by one party, intended to have legal effect, which is communicated to one or more other parties. There was nothing in the Act indicating that "declaration" should be interpreted to mean an announcement or proclamation made generally to the public at large or to any particular party or parties, beyond the applicant under s. 74.
The letter from the Board, confirming that the transfer had been approved, satisfied the requirement of the declaration under s. 74. Further, s. 74 did not mean that the Board was required to give notice to the workers of the employer in order for the transfer to be effective. The Vice-Chair concluded that the plaintiff was a worker of a Schedule 1 employer. His right of action was taken away.