Highlights of Noteworthy Decisions

Decision 2793 18
B. Kalvin
  • Abuse of process
  • Interjurisdictional agreements
  • Out of province
  • Right to sue

The plaintiff in a civil action was injured in a motor vehicle accident in British Columbia in August 2012. He was a worker of a company based in Alberta. The plaintiff made a claim for workers' compensation benefits in Alberta. The Alberta WCB accepted the claim, and the plaintiff continues to receive benefits. In 2014, the plaintiff brought an action in Ontario against the company. The owner of the company brought this application to determine whether the plaintiff's right of action was taken away or whether the plaintiff is entitled to claim benefits under the WSIA.

The right to sue provisions in the WSIA only apply in circumstances where a worker sustains an injury that entitles the worker to benefits under the WSIA. Section 13(3) states that, except as provided in ss. 18 to 20, a worker is not entitled to benefits under the WSIA if the accident occurs while the worker is employed outside of Ontario. The relevant portions of the exceptions are ss. 18(1), 19(1), 19(2) and 20. Sections 18(1) and 19(1) do not apply because the employer's place of business is not in Ontario. Section 19(2) did not apply because the worker's place of employment was not in Ontario and the accident did not occur while the worker was in Alberta for a causal or incidental purpose connected to his Ontario employment. Section 20 was not pertinent because it only applies in circumstances in which a worker is entitled to benefits in Ontario and another jurisdiction, whereas in this case the worker is not entitled to benefits under the WSIA.
The Vice-Chair also noted that Interjurisdictional Agreement on Workers' Compensation was designed to facilitate payment of benefits where an injured worker may be entitled to benefits in more than one jurisdiction, and to facilitate administration of benefits when a worker moves from one jurisdiction to another. It did not displace or effect provisions governing entitlement in the WSIA.
The defendant submitted that, if the action is allowed to proceed, there could be an abuse of process in that there was the prospect of double compensation. The Vice-Chair stated that the Tribunal would have jurisdiction to determine whether this application constituted an abuse of process but it does not have jurisdiction to determine whether the civil action itself constituted an abuse of process.
The Vice-Chair concluded that the plaintiff's right of action was not taken away.