Highlights of Noteworthy Decisions

Decision 1758 19 I
22/02/2021
R. Nairn
  • Jurisdiction, Tribunal (election)
  • Subrogation
  • Right to sue (previous claim for benefits)

In this right to sue application, the applicant raised a preliminary issue in which it was submitted that, since the respondent had not made an election within the time limits set out in section 30(4) of the WSIA, pursuant to section 30(6), the respondent was deemed to have elected to receive benefits under the insurance plan.

On the day of the first hearing, counsel for the respondent and the applicants became aware that the respondent had elected to claim benefits under the insurance plan and, while apparently receiving benefits, he commenced a civil action. Eventually correspondence from the WSIB was obtained in which it was agreed that the respondent would withdraw his claim for benefits. Counsel for the applicants, however, disputed the respondent's right to make a "de-election" and requested production of various documents, as well as an adjournment sine die, in order that the applicants could consider whether to pursue an objection to that de-election by means of judicial review.
Pursuant to section 123(2)2 of the WSIA, the Tribunal does not have jurisdiction to hear appeals from determinations of the Board made under WSIA sections 26 to 30 (Rights of Action). These sections however, are applied by the Tribunal in considering applications under section 31 of the WSIA. Given that the applicable legislation specifically provides that the Tribunal has no jurisdiction over the election provisions in the WSIA, the Vice-Chair found no reason to further postpone the proceedings.
Applying Decision No. 1062/09, the Vice-Chair found that the fact that the respondent chose to receive benefits did not extinguish his right to pursue legal action for the same accident. Whether an injured worker was to receive benefits or should commence a civil action for damages was a matter between the WSIB and the respondent. In such a case, the right of action remained in the hands of the WSIB which, according to section 30(10), was solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms. The matter of the possible de-election was between the worker and the WSIB, of which the applicants had no standing to challenge as they were not a party to the contract.
The Vice-Chair distinguished Decision No. 1782/04, noting that it was in respect of an accident under the pre-1997 Act and, as such, would not be applicable in any event to the present application which fell under the WSIA. While the Tribunal retained jurisdiction over the election provisions under the pre-1997 Act, the WSIA was clear that the Tribunal no longer has jurisdiction over the analogous provisions under the WSIA in respect of accidents under this statute. While the Vice-Chair acknowledged the applicant's submissions that, in Decision 1782/04, there were general concerns about a party "flip flopping" between choosing benefits and commencing a civil action, this decision did not support the conclusion that in the present right to sue application, the applicants were able to question the arrangements between the respondent and the WSIB whereby the respondent was permitted to withdraw subsequently his claim for benefits.
The request for the adjournment sine die was denied. The matter was directed to be scheduled for a new hearing date.