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.
Alexandra practices insurance related litigation with a focus on accident benefits and bodily injury claims.
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently released an important award confirming the WSIB policy that bicycle couriers and foot couriers are considered workers and, therefore, are entitled...
The Workplace Safety and Insurance Appeals Tribunal (WSIAT) recently released an important award confirming the WSIB policy that bicycle couriers and foot couriers are considered workers and, therefore, are entitled to coverage under the Workplace Safety and Insurance Act.
This section 31 application arose as a result of a bicycle/motor vehicle accident in downtown Toronto. The accident occurred when a courier truck pulled out from a curb and struck a bicycle courier. At the hearing, the respondent conceded that the courier driving the truck was a worker, in accordance with the Workplace Safety and Insurance Act. The Vice-Chair determined that both couriers were in the course of their employment at the time of the accident.
The main issue in the dispute was whether the injured bicycle courier was considered a worker or an independent contractor at the time of the accident. If she was considered a worker, she would have coverage under the Workplace Safety and Insurance Act. Given that the courier driving the truck was also a worker under the same Schedule, this would mean that the bicycle courier was not entitled to sue for her injuries and, consequently, would also not be entitled to accident benefits.
WSIAT has released a number of cases outlining various criteria which assist in determining whether a courier is considered a worker or an independent contractor for the purpose of coverage. As such, a significant amount of time at the hearing was devoted to addressing whether the bicycle courier in this case met these criteria. The Vice-Chair addressed these criteria in his decision and determined that the facts established that the bicycle courier was a worker.
However, the Vice-Chair ultimately found that the usual worker/independent contractor criteria analysis was not required in light of the formal WSIB policy for determining worker/independent operator status of bicycle couriers or foot couriers in the courier industry. Specifically, he referenced the courier industry questionnaire which states:
Note: Couriers who collect or deliver on foot or by bicycle are considered workers and should not complete this questionnaire.
The Vice-Chair stated that the WSIB was legally entitled to develop this policy. He also stated that, while he was not legally bound by WSIB policies on a section 31 application such as this, it had long been recognised that it would be undesirable to ignore WSIB policies and create contradictory rules.
The Vice-Chair also stated that the industry-specific questionnaires are both useful and necessary in ensuring consistency in the application of WSIB policy. He also stated that the WSIB policy regarding bicycle couriers was quite strict which, in turn, negated the need to consider the usual worker/independent operator criteria. On the basis of this WSIB policy, the Vice-Chair found that the bicycle courier was a worker.
It is important for Insurers to be aware of circumstances where a claimant must apply to the WSIB for coverage. Specifically, section 61 of the Statutory Accident Benefits Schedule – Effective September 1, 2010 provides that an Insurer does not need to pay accident benefits when a claimant has coverage under the Workplace Safety and Insurance Act. Furthermore, while a person injured in a motor vehicle accident is normally entitled to elect to sue the negligent party, which then also allows them to claim accident benefits, they are not allowed to sue when both parties involved are considered workers in the course of their employment at the time of the loss, pursuant to the Workplace Safety and Insurance Act.
Some lawyers in the insurance industry, particularly plaintiff lawyers, may not be familiar with the circumstances that result in mandatory WSIB coverage. It is therefore important that Insurers be mindful of circumstances where a section 31 application may be required to determine if there is mandatory coverage through the WSIB.