Recently, HSH lawyer Brad Moscato successfully resisted a Defendant’s Section 31 Application for an Order Removing the Right to Sue, at a hearing before the Workplace Safety and Insurance Appeals Tribunal. The case involved "unusual facts" that were "different from the more typical right to sue case".

The narrow issue in the case was whether the Plaintiff, who was injured in a car accident while in the course of his employment, could elect to claim WSIB benefits and then be permitted, after-the-fact, to withdraw his election and continue a civil action against the Defendant. In this case the Plaintiff had commenced the lawsuit against the at-fault driver before the Board approved the reelection.

Among other things, the Defendant argued that the civil action commenced by the Plaintiff was void from the outset as the tort lawsuit was commenced before the Board authorized the Plaintiff’s re-election and withdrawal from the WSIB compensation scheme.

The Defendant further argued that the Board’s formal ratification and the Plaintiff’s repayment of benefits took place six years after the initial election.

The Tribunal held that the decision of the Board to permit the Plaintiff worker to pursue his civil action was a proper exercise of the Board’s discretion. The Tribunal wrote that an action that is properly commenced (within the applicable time limits, for example) can be subsequently authorized by the Board and such a claim is not considered void ab initio. This is because the Board is subrogated to the rights of the Plaintiff worker.

Moreover, the Tribunal held that, in any event, the issue of election of benefits or withdrawal of benefits is a contract between the worker and the Board, and tort Defendants are strangers to these contracts.

As such, tort Defendants have no standing and may not question decisions made by the worker or the Board pursuant to these contracts.

Accordingly, the Defendant’s Application was dismissed.

Decision No. 955/09
2009 ONWSIAT 1450