Written on behalf of Peter McSherry

When you suffer injury or damage during the course of your employment, there is a specific process that must be followed to recover compensation. This may involve making a claim to the Workplace Safety and Insurance Board (“WSIB”), which precludes making a complaint before other administrative tribunals or filing of a lawsuit in respect of the same injuries or damages.

In this blog, we will explore the process that is engaged when a person becomes injured while in the course of their employment.

The Workers’ Compensation Framework and How it Operates

If you are an employee in Ontario and you become injured while at work, it is important to refer to the Workplace Safety and Insurance Act (“WSIA”) to determine whether you are obligated or eligible to apprise yourself of the workers’ compensation system. The WSIA governs the Workplace Safety and Insurance Board (“WSIB”), which administers workers’ compensation benefits. The WSIA includes a list of industries categorized as “Schedule 1” and “Schedule 2”. Schedule 1 includes industries such as construction, retail, management and leasing, while Schedule 2 includes industries such as privately owned companies that operate in federally regulated spaces (ex. airlines and shipping).

Schedule 1 Employers

Employers that are categorized as Schedule 1 are obligated to participate in the WSIB scheme and must contribute a certain amount of funds to the WSIB each year. As such, if a Schedule 1 employee suffers injury while on the job, then such employee is entitled to recover compensation for their injury from the WSIB, paid out from the fund to which the employer contributed. Because Schedule 1 employees are entitled to receive compensation for any work-related injuries from the WSIB, they are, in turn, legally prevented from commencing legal action against any Schedule 1 entity (or related parties such as directors or coworkers).

Schedule 2 Employers

Schedule 2 employers, however, have no such obligation to contribute to the WSIB fund. In other words, any compensation paid to a Schedule 2 employee in relation to a work-related injury comes at the employer’s cost rather than that of the WSIB. Because of this distinction, Schedule 2 employees are permitted to sue any party involved in a work-related injury, except for their own employer and the directors/executive officers and coworkers thereof.

Once you have determined whether you are categorized as a Schedule 1 or 2 employee, you must then refer to section 2 of the WSIA in order to review the definitions of “employer” and “worker” to definitively identify whether you are considered a worker. If you are considered a worker, the next step is to establish whether the injury suffered occurred while during the course of employment. Such a determination is made on a case-by-case basis and generally involves consideration of all of the circumstances that surround the events in question, including where and when the injury occurred, whether it was on company property and whether it occurred while on a paid/unpaid break or while actively in the course of work. If the injury did not occur while in the course of employment, then the employee may seek to sue the responsible party to recover appropriate compensation for their injuries, as they would be precluded from availing themselves of the WSIB scheme.

The most significant takeaway of the WSIB scheme in Ontario is that it is exclusive and that participation in such a system precludes an injured worker from pursuing other remedies. Conversely, participation in a court proceeding precludes recovery of WSIB compensation.

Employee is Injured at Work and Subsequently Fired From His Job

The case of Chodha v Times Kitchen illustrates the difficulty of navigating the workers’ compensation scheme in Ontario. The plaintiff employee had been hired as a cabinet maker by the defendant employer in 2014. Several months after the plaintiff began working for the defendant, he suffered injuries to his lower back, neck and upper back, in a workplace accident.

The plaintiff left work to seek medical attention from his family physician, who advised him that because the accident had happened at work, the plaintiff needed to file a claim with the WSIB. The plaintiff attempted to return to work one-week after the accident, but was advised that he was not in suitable condition to work. Several weeks later, the plaintiff was dismissed from his employment.

Plaintiff Instigates Multiple Legal Actions in Wake of Termination

The plaintiff, who felt he had been wrongfully terminated and had been denied payment in respect of the entirety of his work, initiated multiple legal actions after the termination of his employment in 2014. This included making a complaint to the Ministry of Labour in which he sought overtime pay, a claim for compensation to the WSIB in 2014 and further WSIB actions in 2016 and 2019, and a human rights complaint that was commenced in 2014. Then, in 2019, the plaintiff commenced this legal action in which he sought recovery of damages for loss of earnings, wrongful termination of employment and compensation for unpaid earnings.

The defendants sought summary dismissal of these claims on the basis that the WSIB had exclusive jurisdiction over the matters at issue, and thus, this action was barred.

WSIB Involvement Bars Further Court Action

Section 118 of the WSIA dictates that the WSIB “has exclusive jurisdiction to examine, hear and decide all matters and questions arising under this Act, except where this Act provides otherwise”. Matters of exclusive jurisdiction are defined by section 118(2) to include categorization of industries as Schedule 1 or 2, determination of whether a workplace injury was caused by an accident, and whether an employee has lost earnings due to workplace injury, amongst others.

As noted by the Court, the “Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) has exclusive jurisdiction to hear and decide ‘all appeals from final decisions of the [WSIB] with respect to entitlement to benefits under the insurance plan.’” Given that the WSIB had already resolved the plaintiff’s claims with respect to loss of earnings and breaches of his rights, the plaintiff was legally barred from now presenting similar claims before other tribunals or the Court.

Accordingly, the plaintiff’s claims were dismissed as statute barred because they had already been resolved by the WSIB.

Contact Guelph Employment Lawyer Peter McSherry for Assistance with Your Workers’ Compensation and Disability Insurance Matters

If you have suffered an injury at work and are unsure how to proceed or are uncertain about whether your accident falls until the WSIB system or the court system, it is important to seek comprehensive legal advice as soon as possible. The trusted employment law team at Peter A. McSherry Employment Lawyer provides each client with thoughtful, effective legal advice on all facets of employment law, including wrongful termination, recovery of unpaid overtime, and matters specific to unionized employees. To arrange a confidential consultation with one of our team members, contact us online or by telephone at 519-821-5465.