emp law chap 9

• Workplace safety and insurance in Ontario

  A "no-fault" system - benefits are provided to an injured employee regardless of how the workplace injury or disease was caused
• Principle of collective employer liability


  Ensures certainty of payment for injured workers while removing the risk of litigation and bankruptcy for employers
• Mandatory no-fault insurance covers most employers within Ontario
• Workplace Safety and Insurance Act

  Governs the "no-fault" workplace safety and insurance system and is managed by the Workplace Safety and Insurance Board (WSIB)
• Qualifying for WSIB benefits

  1. Injured worker must meet the requirements set out in the WSIA

  2. Injured worker must submit a claim to the WSIB
• WSIB's adjudicative authority and exclusive jurisdiction over worker injury benefit claims

  • The WSIB's adjudicative powers come from the WSIA
  • The WSIB has exclusive jurisdiction to decide all matters arising out of the WSIA, except where the WSIA states otherwise
• Who is covered under the WSIA

  • Most workers
  • Most - but not all - industries operating within Ontario
  • For most workers working in the construction industry, WSIA coverage is mandatory
  • Exclusions from automatic coverage for certain business types: independent operators, sole proprietors, partners, and executive officers (but these folks can purchase optional workers' compensation insurance)
• WSIB Scheme of Classification of Employers

  • Schedule 1 employers (e.g., hospitals) - a business who falls into this category is liable to contribute to the collective insurance fund under the WSIA
  • Schedule 2 employers (e.g., a car shop that repairs automobiles) - a business who falls into this category is liable to pay for the costs of benefits to its workers (but the WSIB administer the claims of Schedule 2 workers) and to pay to the WSIB an administration fee
  • Non-Schedule 1 or Schedule 2 employers - Businesses that fall outside of Schedules 1 and 2 are not subject to the mandatory coverage of the WSIA (e.g., the insurance industry and banking industry); most of these businesses can purchase operational coverage; if they do so, they owe the same obligations under the WSIA as a Schedule 1 employer
• Administration and Adjudication by the WSIB

  1. The WSIB is responsible for the registering the claim and starting the process of investigating and adjudicating the worker's claim

  2. General requirements to make a worker's claim for benefits to the WSIB: 1) A worker must be injured as a result of a workplace accident arising out of the worker's ordinary course of employment; and 2) A worker must file a claim no more than 6 months after the accident (though the WSIB may permit an extension in exceptional circumstances)
• Triggering events for the WSIB to register a worker's claim and begin the investigation and adjudication process of a claim

  1. The Employer's Report of Accident form is delivered to the Board

  2. The Worker's Report of Accident form is delivered to the Board

  3. The Health Care Professional's First Report is delivered to the Board
• WSIB Adjudication Process


  1. An eligibility adjudicator will determine whether the reported injury occurred during the course of employment

  2. An eligibility adjudicator will determine whether the reported injury was caused by the employment

  3. As a case becomes more complex, other WSIB services become involved – such as a return to work specialist
• Five Basic Determinations made by the Board

  • Causation - whether an injury arose from a workplace accident that occurred during the course of employment
  • Degree of impairment - whether a permanent impairment arose from a workplace injury
  • Entitlement to WSIA benefits and quantum of WSIA benefits - whether loss of earnings arose from an injury (and then, making the appropriate calculations based, for example, on a worker's average earnings and net average earnings)
  • Return to work - whether the workplace parties are cooperating in a return to work plan
  • Survivor benefits - whether a "claimant" is a spouse, child, or dependent of an injured worker and entitled to survivor benefits
• Appealing a WSIB decision

  1. The worker or employer can object to any WSIB benefit decision

  2. For return to work or work transition decisions, a written objection must be filed with the WSIB within 30 days of the WSIB decision

  3. For all other decisions made, an objection must be filed with the WSIB within 6 months of the WSIB decision

  4. For worker objections, if the employer is participating, the employer will receive a copy of the worker's claim file to fairly participate in the appeal process

  5. Employer receipt of health information from worker claim file – this information must be kept confidential by an employer and can't be used by in an employer in any other proceeding (breach of these duties can constitute an offence under the WSIA)
• Two separate levels of appeal from a WSIB decision


  1. First level of appeal - The FIRST level of appeal is to the Appeal Services Division where an Appeals Resolution Officer of the WSIB makes a decision

  2. Second level of appeal - The SECOND level of appeal is from the decision of the ARO to WSIAT
• Basic Characteristics of WSIAT

  • WSIAT makes "panel" decisions, instead of a single adjudicator hearing the case
  • Enabling legislation for WSIAT created a roster of independent medical practitioners to advise the Tribunal on medical matters
  • Office of the Worker Advisor was created
  • Officer of the Employer Advisor was created
  • WSIAT decisions are consistently given the highest degree of deference – the SOR applied at the Divisional Court is "patent unreasonableness"
  • WSIAT is governed fully by the WSIA
  • WSIAT has exclusive jurisdiction to hear appeals of final decisions of the WSIB
  • WSIAT also has the exclusive jurisdiction to hear applications brought by a party to civil litigation to determine whether the plaintiff's right to sue has been taken away by the WSIA
• The Right to Sue


  • A worker who suffers a workplace accident in the course of their job cannot commence a civil action against their employer or against any of their co-workers
  • Where the employer is an S1 employer, the worker may also not sue any other S1 employer or worker of that S1 employer in connection with the workplace accident
  • The injured worker may sue any other party beside their own employer or own co-worker who may be responsible for the workplace accident
  • Where a third party is responsible for a Schedule 2 employee's injuries, the injured worker has two options: 1) they can make a claim for benefits under the WSIA, or 2) they can commence a civil action against the third party
• The Legislative Framework


  • The Act in force at the time of a worker's injury continues to apply to the determination of a worker's benefits
  • Section 13 of the WSIA - Under this section, workers are entitled to benefits for chronic and traumatic mental stress arising from the worker's employment, but not for mental stress caused by "decisions or actions of the worker's employer relating to the worker's employment"
• Disputes at WSIB and WSIAT often involve benefit determinations involving

  • Loss of earnings benefits - these WSIA benefits entitle a worker to 85 percent of the DIFFERENCE between the worker's net average earnings before the accident and the worker's net average earnings after the accident; the benefits are payable only until age 65; two conditions have to be met to stay on these benefits: 1) the worker must be cooperate in appropriate health care measures, and 2) the worker must cooperate in their early and safety return to work, if possible
  • Health care benefits - these WSIA benefits pertain to services of a health care practitioner, hospital, or health care facility, as well as to prescription drugs, attendant care, modifications to a home or vehicle to facilitate independent living, assistive devices, etc.
  • Non-economic loss - if a worker's injuries result in permanent impairment, the worker is entitled to compensation for their NEL; degree of impairment determinations by the Board are based on: A) The existing health records in the worker's claim file, or B) A specific medical assessment specifically requested by the WSIB for this purpose
  • Survivor benefits - survivor benefits are available where the worker dies from the workplace accident because of the workplace illness or injury – recipients of survivor benefits include a child, children, or spouse of the deceased; or another eligible "dependent" person: such as a sibling, parent, grandparent, etc.
• Worker Re-integration


  1. Section 40 obligation to cooperate on worker's safe return to the workplace - under s. 40 of the WSIA, both an employer and employee have an obligation to cooperate in a worker's early and safe return to the workplace

  2. Section 41 (employer's re-employment obligation) - under s. 41 of the WSIA, an employer must re-employ an injured worker for 6 months from the worker's return to the workplace if two conditions are met: 1) The employer has at least 20 workers, and 2) The employee was employee for a continuous period of 12 months before the date of injury

  3. For workers who can't return to their pre-injury job, there are WSIA benefits available to help these workers re-train for new jobs and to help them transition into new employment
• WSIAT appeal process


  1. Starting a WSIAT appeal: a) An appellant must file a notice of appeal within 6 months of the WSIB's final decision, b) Next, an appellant must file a notice of readiness form, indicating that the appeal is ready to proceed

  2. Confirmation of appeal (after appellant receives WSIAT's case record): a) The appellant must file a confirmation of appeal form and identify (and provide copies) of any additional documentary disclosure that the appellant wishes to rely upon at the WSIAT appeal hearing, b) The appellant must also provide a list of anticipated witnesses, together with a summary of their expected testimony; if any witness is to be summoned, the appellant must explain the need and rationale for the summons, c) The respondent will then receive a copy of the WSIAT bound case record and will then need to file a confirmation of appeal form (meeting the same obligations as the appellant), d) A respondent's confirmation of appeal form must be filed within 2 weeks of receiving the appellant's confirmation of appeal form
• WSIAT Mediation


  1. Voluntary participation - mediation between the parties can only occur if the parties agree and WSIAT finds that mediation is appropriate to the matter

  2. Confidentiality - mediation is fully confidential and held on a without prejudice basis – however, any new medical evidence submitted by the workplace parties is made part of the party's case file

  3. WSIAT approval of mediated settlement agreements - in terms of a settlement reached between the parties, it must be approved by a vice-chair of WSIAT; the terms of settlement must be consistent with the evidence and provisions of the WSIA

  4. Example of where a Board approval wouldn't be given - where a worker agrees to withdraw their WSIA benefit claim in exchange for a cash settlement from the employer
• WSIAT Hearings and Hearing Decisions

  1. When is a WSIAT hearing scheduled? - once the parties have filed their confirmation of appeal forms, WSIAT will schedule a hearing

  2. WSIAT Hearing format - usually the hearing is an oral hearing, but occasional a hearing may be directed to be in writing

  3. WSIAT hearings are hearings de novo - hearings at WSIAT are hearings de novo, meaning all evidence and legal argument must be provided; new evidence can also be presented

  4. To get new witness evidence and new documentary disclosure accepted for a WSIAT hearing - a party must disclose the new information to the opposing party and to WSIAT at least 3 weeks before the hearing date

  5. A WSIAT hearing decision is not rendered immediately following the conclusion of a hearing - instead, a hearing decision has to be released to the parties within 120 days; a WSIAT decision is directed to the WSIB to implement
• WSIAT's Reconsideration Process


  1. Threshold test for reconsideration - is it advisable to reconsider the WSIAT decision? has the requestor provided an arguable case?

  2. Second stage - should original decision be changed; if so, how?

  3. Four available ground for reconsideration: 1) significant new evidence has been discovered, 2) the decision overlooked an important piece of evidence, 3) the decision contains a "clear" error of law, 4) the decision contains a jurisdictional error
• Judicial Review to Div Ct from Final Decision of WSIAT

  • Section 123 of the WSIA provides a "privative clause" that applies to WSIAT decisions and orders, which states that WSIAT decisions are not open to question or review in a court
  • Because of WSIAT's special expertise in workplace safety and safety matters, tremendous deference is shown to WSIAT decision by Div Ct even where a judicial review application is allowed to be brought
  • Most of the time, WSIAT decisions are usually upheld by reviewing courts which have found them to be correct and reasonable
  • Because of the high standard of review on judicial review - only if a WSIAT decision is "clearly irrational" will a reviewing court overturn it