February 27, 2017 By: Peggy King
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Ontario’s Workplace Safety and Insurance legislation provides workers with benefits if they are injured during the course of their employment.

In most cases, workers are entitled to benefits regardless of how they are hurt or who caused the injury. In exchange for entitlement to benefits, the Workplace Safety and Insurance Act (WSIA) limits the ability of workers to sue their employers.

This limitation applies to both Schedule 1 and Schedule 2 workers under the Act. Schedule 1 employees are not able to sue: a) their employer, b) any employees working for the same employer, or c) any other Schedule 1 employer or their employees who were involved in the accident. To learn more about Schedule 1 and Schedule 2 workers, see pages on the WSIB website here and here.

A Schedule 1 worker is not barred from bringing an action against any other third party. A third party may be a company who does not work for the worker’s accident employer, a member of the general public, the manufacturer of a faulty product, or the owner of a private residence.

Examples of potential third-party claims may include, but are not limited to, an injury caused by:

  • Defective equipment utilized in the workplace
  • A slip-and-fall at a private residence
  • A motor vehicle accident (note that this is dependent on whether the worker is a Schedule 1 or 2 employee).

Under the above circumstances, a worker may have an election (that is, a choice) between accepting Workplace Safety and Insurance Board (WSIB) benefits or taking legal action. Schedule 2 workers, such as government employees, are only barred from suing their employer or co-workers.

A WSIB Election Form gives workers a choice between receiving WSIB benefits, receiving statutory accident benefits or pursuing a lawsuit. The WSIB only issues these forms when they are properly advised of the accident details and the worker’s employment status. There are certain circumstances where an injured party may not be considered a worker under the Act and may not be entitled to benefits under the WSIA; if this is the case, they could take legal action. To learn more about third-party actions, see the WSIB website here.

It is, therefore, important to determine whether you have the right to make an election. Should you make the wrong determination, as time passes this may affect your ability to proceed in another fashion, due to time limits that are imposed on filing for WSIB (usually six months) and for proceeding with a lawsuit (generally two years).

If you have any questions regarding an injury at work and your ability to sue, contact our Personal Injury and Wrongful Death Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.