The Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently released decision #1572/16 confirming that a company’s failure to register with the Board is not, in and of itself, a bar to a worker receiving benefits from the WSIB.

This section 31 application arose as a result of a motor vehicle accident that occurred in Thornhill, Ontario. Z was driving his employer’s vehicle when he collided with M. At the time of the accident, M was working as a car jockey and was in the course of delivering a vehicle to a customer. Following the accident, Z applied for Statutory Accident Benefits from his employer’s insurer and issued a tort claim against M.

Both the SABS insurer for Z and the tort defendant had an interest in bringing the application to the WSIAT. While a person injured in a motor vehicle accident is normally entitled to elect to sue the negligent party or claim compensation from the WSIB, they are not permitted to continue to litigate when both parties involved are considered workers and are in the course of their employment at the time of the loss. Although outside the jurisdiction of the Vice-chair in this matter, section 61(1) of the SABS provides that an insurer does not need to pay accident benefits when a claimant has co-existing coverage under the Board’s insurance plan.

At the hearing, Z argued that he was not a “worker” (i.e. lacking WSIB coverage) and that he was not “in the course of his employment” at the time of the accident. Both arguments were rejected by the Vice-chair.

Z’s main argument was that his employer did not report to the Board as a Schedule 1 employer until post-loss. The information was predicated upon misinformation that he had received, which went squarely against the information the WSIB provided to the WSIAT in the normal course of such hearings.

As a Scheduled entity, the Vice-chair found that Z’s employer either was or should have been reporting to the Board at the time of the accident and, therefore, there was WSIB coverage for the claimant at the time of the accident. Since M (the tortfeasor) was also an employee of an employer reporting to the Board at the time of the accident, M was considered a worker also in the course of his employment. As such, section 28 of the Workplace Safety and Insurance Act was triggered and the claimant’s right to sue the tortfeasor was taken away. Left without a bona fide election to sue in tort, section 61(1) of the SABS applied such that Z was not entitled to claim SABS benefits trigger that insurer’s right to an indemnity from the WSIB.

The take away from this decision is that the failure of an employer, carrying on a business activity listed within the Schedules to the WSI Act, to register with the WSIB is no bar to their injured employee receiving compensation from the Board if it is later found that the employer should have so registered. It also does not bar a section 31 order from issuing.

See Decision No. 1572/16, which will be posted online shortly.