The interplay between tort/bodily injury cases and workers’ compensation is often complex, but may prove to be a useful tool for insurers to attempt to dismiss an action against their insured. It becomes increasingly more complex when it involves a deceased worker and the right of action of surviving Family Law Act (“FLA”) claimants of that worker.

By way of background, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has exclusive jurisdiction to determine whether because of the Workplace Safety and Insurance Act, 1997 (“WSIA”), the right of a worker to commence and maintain an action is taken away. There is a historic trade-off that exists where employers pay insurance premiums to the WSIB in the event of a workplace accident, and in turn, workers are not able to sue their employers (or possibly other workers). Insurers have standing to bring a Right to Sue Application to WSIAT to determine whether a worker’s right of action is taken away by the WSIA. This same approach is applicable to the right of action of surviving family members of workers.

The case of Dower v. United Lumber and Building Supplies company Ltd., 2008 CanLII 19218 (ONSC),and several other WSIAT decisions, confirmed that if an FLA claimant was not found to be a “dependant” or a “survivor” of a deceased worker, then that FLA claimant’s right of action was not taken away by the WSIA, pursuant to sections 26-28 of the WSIA. A “survivor” means a spouse, child or dependant of a deceased worker. A “dependant” means an individual who was partly or wholly dependent upon the worker’s earnings at the time of death. In the case of Dower, the mother of a deceased worker commenced an action against her late son’s employer and two employees further to a workplace accident, pursuant to section 61 of the FLA.  It was determined by WSIAT that the mother’s action was not barred against the employer and two employees, as she was neither a survivor nor a dependant of the worker. This was the more historic approach taken by WSIAT.

However, a recent WSIAT decision appears to signal a shift away from the historic approach to FLA claimants’ right of action. WSIAT Decision No. 670/15 considered the circumstance of a 21 year old volunteer firefighter working for a township who was operating a pumper truck by himself, en route to the scene of a fire when he lost control in slippery conditions and succumbed to his injuries. The worker’s estate and several of his surviving family members (i.e. his parents, sister, brother and three grandparents) commenced a civil action against several parties, including the worker’s employer (i.e. the township)  and several other workers (i.e. other firefighters). The defendants brought a Right to Sue application to WSIAT to determine whether the right of these FLA claimants was barred. Interestingly, there was no discussion about whether the FLA claimants were “dependants” or “survivors” of the worker – as well, it would be difficult to see how a 21 year old volunteer provided sufficient financial support to his family. Instead, the Vice-Chair noted that the provisions in the WSIAwere clear, which provided that: “entitlement to benefits under the insurance plan is in lieu of all rights of action(statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker… while in the employment of the employer.” The Vice-Chair focused on the fact that the relevant consideration was whether the action was “in respect of the worker’s injury or disease,” rather than the form of the action (e.g. if it was due to negligence or breach of contract). Accordingly, the Vice-Chair determined that the FLA claimants’ right of action against the defendants was removed by the WSIA.

WSIAT Decision 670/15 appears to interpret the provisions of the WSIA more broadly, and does not restrict the barring of a right of action to “survivors” and “dependants”, but rather, family members more generally. As such,  the provisions of the WSIA may be of assistance to insurers looking to dismiss the entire action, or at least some of the FLA claims, as against their insured.