Highlights of Noteworthy Decisions

Decision 550 21
25/08/2022
K. Iima - P. Greenside - S. Roth
  • Damages, contribution or indemnity
  • Death (maintenance of claim by estate)
  • Procedure (agreed statement of facts)
  • Supplier of motor vehicle, machinery or equipment
  • Right to sue (Schedule 2 employer)
  • Right to sue (gross negligence)

In this application, the Toronto Transit Commission (the TTC, the applicant) sought an order under section 31 of the WSIA, that the Estate's and family members' right to sue the TTC and its employees was taken away by the WSIA. The applicant also sought an order under section 29 of the WSIA limiting the extent of its liability in the civil action.

The application was granted in part.
The Panel found that the Estate's right of action against the TTC and its employees was taken away by the WSIA. Pursuant to the provisions of sections 26 and 28 of the WSIA, the worker's right of action against the TTC and its employees was removed as the worker was in the course of his employment and was working for the TTC, a Schedule 2 employer, at the time of his accident. The Panel noted that although these provisions did not refer expressly to actions brought by a deceased worker's estate, such actions are to be treated the same under the WSIA as an action by a worker on his own behalf (see Decision No. 1396/08).
In addition, the Panel also considered the respondents' submission that they ought to be entitled to proceed with their action on the basis of their allegations that the TTC was grossly negligent in its failure to provide a safe work environment for the worker. However, as noted in Decision No. 3096/17, "allegations of ‘gross negligence' and offences under the Occupational Health and Safety Act do not displace the application of the right to sue provisions of the WSIA." The Panel agreed with this reasoning that such allegations of negligence are not a relevant consideration in the determination of the respondents' right to sue.
Furthermore, the Panel found that the Respondent family members were neither "dependants" nor "survivors" within the meaning of the WSIA. The evidence indicated that the family members were not "dependants" within the meaning of the WSIA, because they were not wholly or partly dependent upon the worker's earnings at the time of his death. As such, they did not come within the statutory definition of "survivor" as they were also neither a spouse nor child of the deceased worker. The Panel concluded, based on the uncontested evidence, that the family members were not survivors pursuant to the WSIA. Since the family members were not "dependants" or "survivors," their right to bring this action against the worker's employer (the TTC) was not taken away by section 26(2) of the WSIA. Likewise, because the family members were not the worker's survivors, section 28 of the WSIA did not take away their right to bring this action. The Panel noted that, despite the finding that the worker and his Estate's right of action was taken away by the WSIA, section 27(2) did not remove the family members' right to commence an action under section 61 of the Family Law Act (FLA), because they were not the worker's spouse, child, dependant, or survivor.
Next, the Panel agreed with the submissions of the City and the TTC that section 123(2) of the WSIA only limits the Tribunal's jurisdiction to hear an appeal from decisions under sections 26 to 30, and since the Tribunal was not being asked to decide an appeal from section 30, and was instead deciding an application under its original jurisdiction under section 31, the Tribunal did have jurisdiction over this issue. The Panel noted that unlike a re-election procedure involving a Schedule 2 employer and its employee, which was not a matter within the jurisdiction of the Tribunal, the question of whether the TTC was subrogated to the rights of the Estate and the worker's survivor is a determination at first instance that falls within the scope of determining this section 31 application, a matter over which the Tribunal has exclusive jurisdiction.
Counsel for the City submitted that pursuant to section 30(11) of the WSIA, the TTC was subrogated to the rights of Mr. Dedes and his survivor because WSIB benefits were approved and paid out to the worker's survivor, along with funeral and burial expenses paid to the Estate. It was further submitted that, as such, the TTC was solely entitled to determine whether to commence, continue or abandon the action related to the incident, and whether to settle it and on what terms. Counsel relied on the reasoning in Decision No. 1671/12 to argue that since WSIB benefits were received by the worker's survivor (and funeral/burial expenses paid directly to the Estate), and there has been no request for a re-election under the three month timeframe since the worker's death under section 30(4), nor was the TTC notified of a re-election under section 30(3) and the TTC has not agreed to any re-election, the respondents' right to commence an action had been taken away.
The Panel agreed that Decision No. 1671/12 was applicable to the circumstances in this appeal, given that the worker's survivor received WSIB benefits and there was no evidence to suggest the worker's survivor had any intention to seek a re-election prior to her death. The Panel noted that, in any event, notwithstanding the fact that the survivor (or her estate) was not a party to this application or to the civil action, even if there were evidence to suggest the survivor had intended to seek a re-election prior to her death, it was clear from section 30(11) that the Estate's action against the City cannot be pursued without the authorization of the TTC (see also Decision No. 1062/09, under section 30(10) for Schedule 1 employers). It was also clear from the TTC's submissions that it would not consent to a re-election, if requested, and there was no evidence that the TTC authorized the Estate to commence and/or continue with the action.
The Panel found that the family members' right of action against the City was not taken away by the WSIA for the reasons set out in the preceding section of this decision with regard to the family members' right of action against the TTC and its employees. That is, the family members' right of action against the City was not taken away because the family members were neither dependants nor survivors pursuant to the WSIA. Since section 30(11) relates specifically to a worker or survivor, and because the family members are not the worker's survivors, section 30(11) of the WSIA does not take away their right to bring this action.
As a result, the Panel found that the Respondent family members' right of action against the City was not taken away because the family members were not dependants or survivors pursuant to the WSIA. It was noted that while the Tribunal had no jurisdiction over the issue of the Respondent family members' right of action against the City, the issue of whether the action of the Respondent family members was derivative in nature could be decided by the courts, following the conclusions reached by the Tribunal in this decision regarding the Estate's ability to commence an action against the City.
Furthermore, it was noted that Subsection 28(4) provides that subsections 28(1) and (2) do not apply if any employer other than the worker's employer supplied a motor vehicle, machinery, or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery, or equipment. The respondents noted that the red Dodge RAM pickup truck involved in the worker's accident was supplied by Discount Car and Truck Rentals (Discount) and was returned to Discount on October 18, 2019. The Panel agreed with the submissions of the applicant and co-applicant that the decisions of the Tribunal make it clear that the subsection 28(4) exception only applies to the employer who supplied the motor vehicle on a purchase or rental basis to another employer without also supplying workers.
With respect to limitations of damages under section 29 of the WSIA, the Panel noted that subsection 29(4) of the WSIA had the effect of limiting damages, contribution or indemnity, for parties who remain in an action, where a determination has been made that the right to sue of one or more parties, has been taken away from the plaintiffs, by the WSIA. The Panel noted that the consequence of this was that defendants who are not protected by the WSIA from civil actions being brought will be protected against liability for the negligence or fault of defendants, or potential defendants, who are protected by the WSIA. This was deemed to be applicable to the present case as the Panel had determined that the Estate's right to sue the TTC and its employees had been taken away by the provisions of the WSIA. Subsection 29(3) of the WSIA provides that "the court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker" (i.e., the parties protected from the civil action by the WSIA) and that amount shall not be recoverable in the action against the remaining parties. Therefore, pursuant to subsections 29(3) and 29(4) of the WSIA, no damages, contribution, or indemnity for the portion of the loss or damage determined to be caused by the fault or negligence of the TTC and its employees was recoverable in the action.