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Ontario’s workers’ compensation legislation exists to provide workers with benefits if they are hurt during the course of their employment.  The scheme is meant to efficiently and quickly replace the remedy a worker could receive from a lawsuit.  Workers are entitled to workers’ compensation benefits regardless of how they are hurt or who caused the injury.  In exchange for this entitlement, the Workplace Safety and Insurance Act, 1997 (“WSIA”), limits the ability of workers workers to sue an employer for work injuries.[1]  This limitation applies to industries listed in Schedule 1 or 2 of the WSIA, which can be found online.  Even though workers’ ability to sue their employers is limited, a lawsuit by a worker may be available against other parties in certain circumstances. This article will help answer the question “when can I file a lawsuit against my employer?”.

When Can I Sue My Employer For Injuries?

Availability of an Election:

In certain instances of injury, a worker is able to choose, or “elect”, whether to pursue workers’ compensation benefits through the Workplace Safety and Insurance Board (“WSIB”), or commence a lawsuit.  To proceed with a lawsuit, one must be a worker on the job, and must be injured during the course of employment by a negligent third party.  A third party is a person or company who does not work for one’s employer.  A member of the public might qualify, as would a manufacturer of a faulty product, a treating doctor who aggravated an injury, or the owner of a private residence.  You might have an election and should consider consulting a lawyer when:

  • You are working, driving truck delivering building materials to a job site.  While driving through an intersection at a green light, you are struck and injured by a drunk driver.
  • Your landscaping company has been hired to do some work on a property and has purchased new lawn-mowers.  The lawn mower blade is defective, breaks off, and seriously injures you.
  • You are returning to the office during a particularly cold January day and as you are walking through the lobby of your building, you slip on a newly mopped floor and break your ankle.

In each instance, as a worker injured on the job, you may be in a position to choose, or “elect”, whether to claim WSIA benefits or to sue the third party that caused your injuries.[2]

Considerations of Elections:

There are numerous considerations before making an election.  For example, if you are a Schedule 1 employee, typically employed in construction and industrial settings, such as mining, manufacturing, or construction sites, and the third party that injures you is also a Schedule 1 employee in the course of his or her employment, you are barred from bringing a lawsuit.  This acts to limit lawsuits where numerous Schedule 1 companies are involving their workers on the same job. [3]  A Schedule 1 worker is not precluded from bringing an action against any other third party but may elect to claim WSIA benefits.  If you are a Schedule 2 worker, such as a government employee, employee of a school board, a police officer, or firefighter, you are only limited from suing your employer.[4]

It is important to note that the WSIA treats workers and independent contractors differently and may affect the ability to pursue WSIA benefits or a lawsuit suing your employer for injury. Determining your official status is a common issue of contention between opposing parties.  For example, if you are employed driving a truck for a trucking company, that company may consider you an independent contractor, you may consider yourself to be an independent contractor, but the law may define you as an employee.  If you are an employee, you could be entitled to WSIA benefits or elect to pursue a lawsuit against the at fault third party.  If you are an independent contractor, you have no claim for WSIA benefits but could sue an at fault third party.

How we can Help:

Determining whether you have the right to make an election requires a detailed analysis of the situation, your employment status, and the employment status of the individual who caused or contributed to your injury.  It is crucial to correctly determine whether you are entitled to proceed with a lawsuit or whether you must apply for WSIA benefits.  Should you make the wrong determination, and commence a lawsuit, the defendants may choose to apply to the Workplace Safety & Insurance Tribunal for a ruling as to whether or not your right of action has been taken away.  Their success could potentially lose you the time, money, and effort invested in proceeding with a lawsuit.  Furthermore, if you proceed with an application for WSIA benefits and forego a possible lawsuit, you could be abandoning a significant amount of potential recovery.

If you have any questions regarding an injury at work and your legal rights, or would like more information on this topic, please contact Maciej Piekosz at [email protected] or call 519-660-7718 for a free consultation.

[1] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 28.
[2] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 30-31.
3 Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 28(1)
[3] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 28(1)
[4] Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A, s. 28(2)

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