Highlights of Noteworthy Decisions

Decision 923 15
S. Martel
  • Detrimental reliance
  • Right to sue (misrepresentation)
  • Notice of accident (right to sue)

The plaintiff in a civil case was working at a residential construction site. The site was owned by two of the defendants. They subcontracted with the other defendant to finish a concrete basement floor. The plaintiff was injured when a makeshift ladder collapsed as he was trying to climb out of the basement.

The plaintiff alleged that the subcontractor actively tried to ensure that the plaintiff would not report the accident to the Board. Eventually the plaintiff tried to file a claim with the Board but it was rejected because it was not filed within six months of the accident. The plaintiff then brought the action against the defendants. The subcontractor applied to determine whether the plaintiff's right of action was taken away.
The first issue was whether the plaintiff was a worker or an independent operator. The plaintiff and the subcontractor testified. Generally, the Vice-Chair preferred the evidence of the plaintiff and found that the evidence of the subcontractor was not credible. On the evidence, the plaintiff was a worker of the subcontractor.
The plaintiff's statement of claim included pleadings regarding negligent or fraudulent misrepresentation by the subcontractor in trying to prevent the plaintiff from filing a claim with the Board.
A prior decision of the Tribunal, Decision No. 196/92, found that separate heads of damages regarding false misrepresentation and breach of fiduciary duty arose for and by reason of the accident while a plaintiff was in the employ of the defendant and that, accordingly, the plaintiff's action was also barred regarding those heads of damage. However, the plaintiff in this application relied on a decision of the Ontario Court of Appeal in Krishnan v. Kelseys International Inc., which held that a claim arising from an employer's alleged negligent misrepresentation regarding the process to be followed in pursuing the claim was a separate independent tort not arising in respect of the worker's injury.
The Vice-Chair agreed with the plaintiff. A plain reading of the Court of Appeal decision is that a claim arising from an employer's post-accident conduct regarding the process to be followed in pursuing a claim is a separate and independent tort not arising out of the worker's injury and, accordingly, not taken away by the WSIA. The reasoning in Decision No. 196/92, which was released prior to Krishnan, was no longer valid.
The Vice-Chair concluded that the plaintiff's right of action against the subcontractor was taken away, except for the claims arising out of the subcontractor's conduct after the injury.
The plaintiff previously tried to file a claim with the Board, which was rejected as being out of time. The Vice-Chair previously found that the subcontractor was not credible. The subcontractor tried to persuade the plaintiff not to file a claim and when the plaintiff did try to file the claim after the six-month time limit, the subcontractor provided erroneous information to the Board regarding the plaintiff's status. The plaintiff may now wish to pursue a reconsideration of the Board's decision.