Highlights of Noteworthy Decisions

Decision 2148 19
R. Nairn
  • Right to sue
  • Out of province (accident out of Ontario)

The plaintiff in a civil case was employed as a mechanic maintaining remote Arctic radar facilities in Nunavut. The employer's head office was in Ottawa. The plaintiff was a resident of Ontario, but his base of operations was Hall Beach, Nunavut. The plaintiff worked on a rotational cycle of eight weeks on duty at Hall Beach, and then four weeks on leave. When he was on leave, he returned to his residence and his family in Ontario. The plaintiff's work required air transportation, usually by helicopter, from his base of operations in Hall Beach to other sites in Nunavut. The plaintiff was injured in May 2013, while travelling by helicopter.

The plaintiff received benefits under the Nunavut workers' compensation system. The Nunavut Board had the right to bring a subrogated action the at-fault party. The Nunavut Board released its right to pursue a subrogated action and assigned the right of action to the plaintiff. The plaintiff then brought the action in Ontario against the operator of the helicopter. The defendant applied to determine whether the plaintiff's right of action was taken away.
Section 13(3) of the WSIA provides that a worker is not entitled to benefits under the WSIA if the accident occurs while the worker is employed outside of Ontario, except as provided in ss. 18 to 20. One of the exceptions is in s. 19(4), which provides that, if the accident happens outside of Ontario on a train, an aircraft or a vessel or on a vehicle used to transport passengers or goods, the worker is entitled to benefits under the WSIA if the worker resides in Ontario and is required to perform employment both in and outside of Ontario.
It was clear in this case that there was an Ontario connection. For example, the head office of the employer was in Ontario, the worker resided in Ontario and the worker had to travel to Nunavut to work. However, the plaintiff worked only in Nunavut and was not required to perform his employment in Ontario. Accordingly, the exception in s. 19(4) did not apply. Since the plaintiff was injured in Nunavut and not in Ontario, s. 13(3) provides that he would not be entitled to benefits under the WSIA. As such, the plaintiff retained his right of action with respect to the accident.
The plaintiff's right of action was not taken away.