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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 787 19
5/29/2020
T. Mitchinson

  • Interjurisdictional agreements
  • Out of province (substantial connection)
  • Right to sue

The plaintiff was working for the defendant on a job in Nova Scotia, when she was injured in August 2015. The plaintiff brought an action against the defendant in Ontario. The defendant applied to determine whether the plaintiff's right of action was taken away.
The defendant was a registered Ontario business, and also a registered company with the Board. Its place of business was Ontario. The plaintiff resided in Ontario and usually worked in Ontario.
The Vice-Chair considered the doctrine of lex loci delicti in the context of right to sue applications.
The Supreme Court of Canada judgement in Tolofson v. Jensen is the leading case on the interpretation of the lex loci delicti rule. When dealing with cases where a decision must be made on what law should apply to a case involving two potential jurisdictions, the judgement concluded that "as a general principle the law to be applied in torts is the law of the place where the activity occurred, the lex loci delicti." However, the judgement acknowledged that there could be exceptions.
The Vice-Chair stated there is no dispute that the rule, as interpreted and articulated in Tolofson, endorses the general principal that the law to be applied in torts is the law of the place where the activity at issue occurred. There is room for exceptions to this general rule in specific circumstances, but any exceptions would need to be "very carefully defined."
Decision No. 2273/03I discussed the lex loci delicti rule in detail and concluded that the rule does not necessarily apply in a manner that would remove the Tribunal's jurisdiction to consider an application made by a litigant under ss. 28 and 30 of the WSIA. As long as the facts at issue in a particular application are sufficient to establish that the plaintiff and defendant in the law suit have a real and substantial connection to Ontario, as required by Tolofson, then the Tribunal has the jurisdiction to consider whether the right to sue has been removed.
The Vice-Chair found the reasoning in Decision No. 2273/03I compelling, but recognized that it was made in 2004, before the Ontario Court of Appeal issued its judgement in the case of Benson v. Belair Insurance. That judgement clarified the scope of the lex loci delicti rule, specifically finding that it is intended to apply relatively restrictively to tort law, and not more generally to relationships between parties in other legal contexts. The reasoning and direction provided by the Court of Appeal in Benson necessitates a re-thinking of the lex loci delicti rule in the context of the right to sue provisions of the WSIA.
The Tribunal does not have jurisdiction to determine whether the substantive laws of Ontario or of Nova Scotia apply to the civil tort action underlying the application. And it could well be that the lex loci delicti rule would be relevant in that context. However, the analysis leading to this jurisdictional decision only comes into play if the plaintiff has a right of action at all, given the right to sue provisions in the WSIA. That is a decision within the exclusive jurisdiction of the Tribunal, and does not conflict with the direction set out in Tolofson for determining the choice of applicable laws to tort actions.
The reasoning in Benson is persuasive in determining the jurisdictional issue in the current application. Regardless of whether the laws of Ontario or of Nova Scotia would apply to the plaintiff's tort action, her right to pursue the tort action she has commenced in the Ontario is dependent on determination of her right to sue under the provisions of the WSIA.
Alternatively, the reasoning set out in Decision No. 2273/03I could also be applied in the circumstances of this application and would lead to the same result.
The plaintiff normally resided in Ontario and was working outside of Ontario for less than six months at the time of the accident. The defendant's place of business was Ontario. Accordingly, s. 18(1) and (2) of the WSIA accurately describe the circumstances of the parties and the accident. As such, although it appears that she has not done so, the plaintiff could be entitled to claim benefits under the WSIA.
The election provisions set out in s. 20(2) of the WSIA can reasonably be interpreted as intending to apply to circumstances where a worker entitled to benefits under the Ontario WSIA may also be entitled to benefits under the workers' compensation scheme of another province. The policy objective for the election requirement is to eliminate any potential for double-recovery.
The Interjurisdictional Agreement on Workers' Compensation foresaw situations where an individual might have entitlement to benefits in more than one jurisdiction in relation to an accident. If entitled under more than one regime, an individual must elect using a form that specifically requires the individual to choose which compensation scheme should apply.
To interpret the term "compensation" in s. 20 of the WSIA more broadly to include the right to sue pursuant to laws of another jurisdiction would be inconsistent with the context of s. 20 and the generally accepted intentions set out by the Interjurisdictional Agreement.
The Vice-Chair concluded that the plaintiff was a worker of the defendant Schedule 1 employer at the time of the accident and that she was entitled to claim benefits under the WSIA. The plaintiff's right of action was taken away.