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The Workplace Safety and Insurance Board (WSIB) system and a personal injury lawsuit are two paths to compensate individuals who sustained injuries as a result of an accident. However, these two systems do not coexist; an individual can have access to only one of them at a time. In some situations, it is clear which system should be used. For instance, if the accident did not happen during the course of work, then a WSIB claim is not an option. However, the circumstances of an accident might not be simple and determining which system is available can be tricky. Confusion often arises in the context of a car crash.

What is WSIB?

The WSIB system provides compensation to workers who get injured in the course of their employment regardless of fault. In return, these workers give up the right to sue their employers.

The WSIB system is governed by the Workplace Safety and Insurance Act, 1997 (WSIA).

Section 2 of the WSIA defines terms (e.g. ‘employer’ and ‘worker’) that are crucial to determining whether a WSIB claim is viable. Additionally, for one to have access to a WSIB claim, the accident must have happened ‘in the course of employment’. There is no specific definition in the WSIA establishing what ‘in the course of employment’ means. This determination is made on a case-by-case basis and generally depends on the surrounding circumstances relating to the place, time, and activity the worker was completing when the accident happened.

The WSIA provides a list of industries known as Schedule 1 (e.g. agriculture; mining, oil/gas extraction; industries engaged in generating, transmitting or distributing utility services; governmental services such as education, public administration, hospitals; manufacturing; transportation and warehousing; construction; wholesale; retail; information and culture; finance, management and leasing; professional, scientific and technical expertise; administration, services to building, dwellings and open spaces; non-hospital health care and social assistance; leisure and hospitality; other services).

Employers whose businesses fall within Schedule 1 must contribute to the WSIB insurance fund and in case of an injured worker, the WSIB pays the compensation to the worker. Therefore, individuals who work for Schedule 1 employers cannot sue any Schedule 1 entity, or their directors, executive officers or co-workers in case of injuries sustained in the course of work.

The WSIA also has another list of industries known as Schedule 2 (e.g. organizations funded by public funds, organizations legislated by the province but self-funded, other businesses which are privately owned but involved in federally regulated industries such as telephone, airline, shipping and railway).

Schedule 2 employers are not part of the WSIB insurance fund; they must pay for the total costs of WSIB compensation for their injured workers. Therefore, in case of injuries sustained in the course of employment, Schedule 2 workers can sue anyone except their own Schedule 2 employers and their directors, executive officers and co-workers.

Which system is available after a car crash?

It depends on the specific facts of the case. Essentially, it is necessary to determine whether the parties involved in the accident were Schedule 1 workers, Schedule 2 workers, or none of them. It is also necessary to determine whether the parties were in the course of their employment when the collision happened, as well as who is at fault for the accident.

 Below are two examples to illustrate some of the possible scenarios:

  • Two truck drivers enter a collision while driving for their Schedule 1 employers. Generally, if a Schedule 1 worker enters a collision and the at-fault driver is also a Schedule 1 worker, then the only option will be the WSIB system as Schedule 1 workers are prohibited from suing any Schedule 1 entity, their directors, executive officers and co-workers.
  • A family leisure vehicle hit a truck driver while the truck driver was driving for their Schedule 1 employer. Generally, if a Schedule 1 worker enters a car crash and the at-fault driver is not a Schedule 1 worker, then generally the Schedule 1 worker has the option to seek compensation through the WSIB system or a personal injury claim against the at-fault driver.

If the option to pursue a claim through the WSIB or a personal injury lawsuit exists, the options must be carefully analyzed. Depending on the circumstances of the case and the needs of the injured party, one system might be preferable over the other. However, it is important to note that one cannot have access to both systems—it is either one or the other.

Mariana Peres Toledo practices with the Siskinds Personal Injury department. If you have questions about the information contained within this article or any other personal injury questions, please write to [email protected] or call 226.636.1526.

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