Highlights of Noteworthy Decisions

Decision 1072 19
19/10/2020
R. Nairn - C. Sacco - S. Roth
  • In the course of employment (contemporaneity)
  • Right to sue (workers of both employers)
  • Schedule 1 employer (application industries)
  • Schedule 2 employer

The plaintiff in a civil case brought an action against a municipality regarding injuries suffered in May 2014, when his vehicle struck a catch basin depression on the side of the road. The defendant 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 defendant was a Schedule 1 employer but had been a Schedule 2 employer prior to 2010. The essence of the plaintiff's position was that some of the alleged negligent acts of defendant's employees occurred when the defendant was registered in Schedule 2, that the employees were Schedule 2 workers, and s. 28(1) of the WSIA did not grant the Tribunal jurisdiction to find that a Schedule 1 worker has no right of action against a Schedule 2 employer.
The Panel accepted that it would not have the jurisdiction to remove the right of a Schedule 1 worker to commence an action against a Schedule 2 employer or workers of that Schedule 2 employer. The Panel also accepted that the negligence of the workers of a Schedule 1 employer giving rise to an injury to another worker of a Schedule 1 employer need not be contemporaneous with the injury to fall within the scope of s. 28(3). However, that did not assist the plaintiff in this case.
The critical date for making determinations about the status of the various parties and their rights is not the date of any alleged negligence but, rather, the date of accident. The entire WSIA scheme is set into motion once a worker sustains a personal injury by accident arising out of and in the course of employment. The ability to make a s. 31 application is tied to the accident date, since there is no right to commence an action earlier. It is the date of accident which is the triggering or crystallizing event on which the status of the various parties is to be determined.
Once the Board agrees to transfer an employer from Schedule 2 to Schedule 1, that employer enjoys the same protections as all other Schedule 1 employers. In this case, when the defendant was transferred to Schedule 1 in 2010, its only liability with respect to matters that occurred prior to that date was with respect to costs associated with work-related claims that occurred prior to that. From 2010 forward, the defendant, as a Schedule 1 employer, enjoyed the protection of actions brought against it by other Schedule 1 workers and employers.
The Panel concluded that the plaintiff's right of action was taken away.