01/04/2020 by John Tamming 0 Comments
What do you mean I CAN'T SUE
IF I WAS INJURED AT WORK, WHY CAN’T I SUE?
If you are injured in the course of many kinds of work, often you have no right to sue. You are stuck with the inferior benefits of our worker’s compensation system (“WSIB”). The law puts a huge “No Trespassing” sign in front of your local courthouse and bars you from entering. There are exceptions (many of them, actually), but that is the general rule for many injured people.
It is all part of a 100 year old workers compensation trade off.
The government says to the employer: Pay WSIB premiums into a fund. If any of your workers are injured on the job, we promise you that you will not be sued; the employee will only be able to access that fund.
And the government says to the employee: You don’t need to prove the accident was someone else’s fault. Plus, you can receive some benefits right now, rather than wait for a civil lawsuit to wrap up.
WHAT DIFFERENCE DOES IT MAKE – SUING VERSUS WORKERS’ COMPENSATION?
A lot. Let’s cover just two of them:
It means less money: In almost all cases, the compensation is far higher in the courts. WSIB pays next to nothing for pain and suffering. WSIB will not pay a lump sum to close off files by, for example, paying a sum up front intended to cover future income losses or health expenses. They just don’t do that. A lawsuit can deliver that kind of compensation; WSIB cannot.
Delay and bureaucracy: WSIB will deliver to you a file number. You will spend years being a file number. You will in most cases have revolving caseworkers who know nothing of your file. Your file will run 1000 pages after a year. Legions of civil servants will be paid to manage your claim, they will be paid in many cases to ensure that you are not paid. You will be managed until, frankly, you are sick of it. The courts can be slow, but they have nothing on WSIB.
SO HOW CAN I GET AROUND THE RULE AGAINST SUING?
In many cases, you cannot. Let’s assume that you drive for work and another car runs a red and collides with your car. Say that that driver is also in the course of his employment. If both of you are covered “workers” in the course of your employment, you are barred from suing.
But let’s put a different twist on those facts:
If you have left your employer’s parking lot and are driving home, you are likely no longer in the course of employment and thus may sue.
If the person who hit you is in fact an “independent contractor”, even though his employer calls him an employee, you may sue.
If either of you are not mandated to be covered by WSIB (if, say, the at fault driver was a legal clerk at a law office – a non-covered employer), you may sue.
ROB, THE QUARRY AND THE SHATTERED FOOT
Creative lawyers (and we can be very creative) can get around the rule in certain cases. Take Rob, for example, a 24 year old client of ours. Rob was at a rock quarry when a stone slab fell onto his foot, crushing it. We argued that he was not an employee but was only there that day as part of an extended job interview. The tribunal agreed with us and he was granted the right to sue.
A lot of these kinds of battles focus on whether the injured person was in fact a “worker” and whether in fact he was in the “course of employment” when he was injured. If there is any grey area, we will fight for your right to access our courts.
ALREADY APPLIED FOR WSIB – CAN I CHANGE MY MIND AND SUE?
In some cases, you can elect out of WSIB and sue. This depends. If you are with a “Schedule 2 employer”, you still cannot sue your employer but you may be able to sue a third party who caused the accident. These can involve very complex legal issues that will hinge on the kind of industry involved and who technically was at fault.
WHO DECIDES IF I HAVE A RIGHT TO SUE?
There is a tribunal in Toronto called the WSIAT. The defendant in a lawsuit has the right to ask for a hearing before that tribunal and to ask it to decide the issue. It takes a couple of years to have a hearing but in our experience, once the hearing takes place, they make their decision fairly quickly. But no doubt, things do get delayed. Your lawsuit is frozen until the tribunal renders its decision.
Still have questions? Get in touch with our office today.