Highlights of Noteworthy Decisions

Decision 675 22 I
03/06/2022
G. Dee - S. Sahay - S. Roth
  • Abuse of process
  • Death (maintenance of claim by estate)
  • Issue setting (right to sue)
  • Member of the family (common law spouse)
  • Right to sue (negligent treatment)

This interim decision provided directions on the conduct of the section 31 right to sue proceedings under the WSIA. A pre-hearing conference took place on May 10, 2022. A number of procedural and jurisdictional matters were the subject of submissions by all parties.

The plaintiffs alleged that following the workplace accident which resulted in the worker's death, the individual defendants intentionally failed to take action to obtain medical services for the worker in a timely manner.
The co-defendant's alleged that the application constituted an abuse of process. The Panel did not accept this for the following reasons: the application was not a frivolous one without merit; Tribunal precedent is clear that delay in bringing a section 31 application is not a sufficient ground on its own to establish that an abuse of process has occurred; and, if there is an abuse of process by the defendants as a result of delay, that abuse of process exists in the delays that have occurred in the progress of the civil action through the courts. It is the Courts and not the Tribunal that retain supervisory authority over the progress of the civil action. The Panel noted that this was an argument more appropriately addressed by court system whose responsibility it is to oversee the parties' conduct of the civil action.
Furthermore, the co-defendant/applicants sought a determination that the plaintiffs' right to bring the action was taken away by the WSIA. They also sought a determination that had the worker survived, he would also have been prohibited by the WSIA from bringing an action for his injuries. The Panel noted that this second determination would not result in the direct removal of the plaintiffs' rights to bring an action in respect of the worker's death, but may be considered by a court when determining the plaintiffs' ability to recover damages under the Family Law Act. The Panel concluded that it had the jurisdiction to determine whether the worker's right to bring a civil action has been taken away by the WSIA, despite the fact that his estate was not a party to the civil action.
In addition, with respect to the Statement of Claim, the Panel noted that no agreed statement of fact was in place. As such, there could be no assurance that such an agreement on the facts at the core of the civil action would be reached. The Panel determined that the only viable choice for the Panel was to accept the facts as alleged in the Statement of Claim as accurate for the purpose of this application, or to make their own determination regarding these facts. The Panel pointed to Tribunal case law in stating that it is not uncommon to accept the statements of fact as being accurate for the purpose of section 31 determinations.
Additionally, absent a compelling reason to do so, the Panel found that it should attempt to avoid the potential for inconsistent findings of fact involving the same set of circumstances that a court may have to consider, as it would be unnecessary to do so. For instance, if plaintiffs cannot establish the facts as alleged in the Statement of Claim in a court proceeding, they cannot be successful. The Panel's decision regarding whether the WSIA takes away the plaintiffs' rights of action would essentially be moot because that right of action would not be successful. However, the Panel determined that if it were assumed that the alleged facts are accurate the purpose of these proceedings, then the Panel would be able to examine these accepted facts in order to determine whether they are consistent or inconsistent with the individual defendants being protected from a civil suit by the WSIA.
Moreover, the applicants requested a determination that the worker's partner was a spouse of the worker at the time of his death. The Panel noted that this determination could eliminate or reduce entitlement to survivors benefits under the WSIA as she was receiving benefits from the WSIB as a co-habitating spouse. The Panel determined that this made her an interested party in these proceedings. As such, the principles of fairness and natural justice dictated that she be provided with notice of these proceedings.