WSIB or a Lawsuit? The Section 30 Election Explained

Why you usually cannot sue your employer

Ontario's workers' compensation system is a trade. Benefits under the insurance plan are provided, and in return the right to sue the employer is taken away.

Section 26 of the WSIA sets this out. Entitlement to benefits replaces whatever rights of action the worker, or the worker's spouse, children or dependants, might have against the worker's employer or one of its executive officers over an accident that happened in that employment (s. 26 (2)).

Section 28 goes further, and which "schedule" the employers fall under matters:

• Workers of Schedule 1 employers, their survivors and Schedule 1 employers themselves cannot sue any Schedule 1 employer, nor that employer's directors, executive officers or workers (s. 28 (1)).
• Workers of Schedule 2 employers and their survivors are barred only from suing that worker's own Schedule 2 employer and its directors, executive officers and workers (s. 28 (2)).
• Where workers of other employers were part of what happened, the Schedule 1 bar reaches them only if they were acting in the course of their employment (s. 28 (3)).
• Neither bar applies where a different employer sold or rented out a vehicle, machinery or equipment and did not send its own workers to run it (s. 28 (4)).

Whether a particular person or company falls inside these bars is a legal question that turns on the facts and calls for a lawyer's review.

The election and the three-month deadline

Several features of the section are worth knowing:

• The three months are counted from the accident (or from the date of death), as the statute is worded.
• The Board may allow a longer period if it considers it just to do so (s. 30 (5)). That is a discretion, not a right.
• Silence has a stated consequence. If no election is made, or the Board is not notified, the statute presumes the worker or survivor chose against taking benefits, unless there is proof otherwise (s. 30 (6)).
• Others may elect for some people. A parent, guardian or the Children's Lawyer may elect for a person under 18, and the section sets out who may elect for a worker who is mentally incapable or unconscious (s. 30 (7), (8)).
• The two options lead to different results. If benefits are chosen, the Board (or, for a Schedule 2 employer, the employer) is subrogated to the worker's rights in the action and alone decides whether to start, continue, abandon or settle it (s. 30 (10), (11)). If the action is chosen, the worker may still receive benefits to the extent a judgment or an approved settlement falls short of what the benefits would have cost the Board (s. 30 (14)).

Subrogation also has a payment side: if the Board or employer recovers more than it spent on the action and on benefits, the surplus goes to the worker or survivor, and future payments are reduced by that surplus (s. 30 (12), (13)).

When a third party is involved

An election arises only when someone other than the protected group may be responsible for the injury. Typical settings include:

• A motor vehicle collision while working, for example a delivery driver, a tradesperson travelling between sites or a home-care nurse struck by another motorist
• A contractor on a construction site employed by a different company, subject to the rules in section 28
• A property occupier who is not the employer
• A defective product or piece of equipment, where a manufacturer or supplier may be responsible

Driving for work is a frequent example, because a motor vehicle collision can also bring statutory accident benefits into play, and how settlement value is assessed in such a claim is a separate topic. The accident benefits regulation, O. Reg. 34/10, has its own rule for people entitled to workers' compensation benefits, discussed below.

What each path involves

The table is a general overview based on the WSIA. It is not a prediction of what any person would receive.

Figures in the WSIA, such as earnings ceilings and non-economic loss amounts, are adjusted over time, so any current amount should be confirmed with the Board or a lawyer.

How the decision is made

No default answer exists. A lawyer reviewing the choice typically considers:

1. How clear liability is. An action requires proof of fault; benefits do not depend on a third party's fault.
2. How serious and lasting the injury is, which affects how the two paths compare over time.
3. Insurance and collectability. A claim against a person with little or no insurance may recover less than its theoretical value.
4. The worker's earnings, because the earnings ceiling and the percentage in section 43 affect the benefit side.
5. Time. The two routes follow different processes with different timelines.
6. Family claims, which sit outside the benefits plan.
7. The Board's position as subrogated party, which changes who controls a claim if benefits are chosen.

The analysis is specific to each file and is normally done before the election deadline arrives.

Where the paths overlap

• Injured in a car while working. The accident benefits regulation says the insurer is not required to pay its benefits to someone entitled to benefits under the WSIA, but that rule does not apply to a person who elects to sue under section 30 if the election was not made primarily to claim accident benefits (O. Reg. 34/10, s. 61). The interaction should be reviewed as one problem.
• A worker who sues may still receive benefits to the extent described in section 30 (14).
• A worker who claims benefits gives up control of the action to the Board or the Schedule 2 employer (s. 30 (10), (11)).
• An application to the Workplace Safety and Insurance Appeals Tribunal. Either side in a lawsuit, or an accident benefits insurer facing a claim, can ask the Tribunal whether the right to sue has been removed, whether the Act caps liability, or whether the plaintiff may claim plan benefits. Only the Tribunal may decide those questions, and its ruling is final (s. 31 (1)-(3)). A worker or survivor then has six months to file a claim for benefits, and the Board can extend that period (s. 31 (4), (5)).