At least once every couple of weeks I get a call from a potential client in Whitby, Ajax or Oshawa who is confused about whether they can sue if they are covered by WSIB (Workers Compensation in Ontario – Workplace Safety and Insurance Board). The usual questions that I get are:
1. I was injured in a car accident during the course of my employment and I have WSIB – am I allowed to sue?
2. I slipped and fell and sustained an injury while working – what are the rules?
3. I had a collision with someone who is covered by WSIB
4. I am being asked to sign an “election” form, do I have to sign it? What are my rights?
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5. I am told that I can choose WSIB (workers compensation) or a lawsuit – what should I pick? Which one is better?
It is definitely a confusing and complex issue and it needs to be looked at on a case by case basis. However, there are some general rules that can help to make the process more easily understandable.
The workers compensation system in Ontario was brought in to allow workers to avoid the need to sue for injuries that they sustain while working. A broad range of employees and employers are automatically included within the system (some are included whether they like it or not). While the system provides a system that does not require employees to prove fault in order to get compensation, the system does take away the right to sue for injuries for some employees.
In some cases, the employee has the right to decide whether to opt-in to the WSIB system or to proceed with a lawsuit. In other cases, the employee has no choice at all. The decision has a lot to do with who the potential defendant is (who you want to sue) and whether the employee is listed as a Schedule 1 or Schedule 2 employee under the relevant legislation. If you were involved in an auto accident, and the other driver was not covered by WSIB and in the course of employment, you have a far higher chance of being able to elect to start a lawsuit than if the opposite is true.
The other issue that obviously needs to be considered is fault for the collission or slip and fall accident. If you were at fault or are likely to be held significantly at fault it may not make sense for you to sue – you may be better off with WSIB. I have counselled clients in the past who had the election to choose WSIB. Lawsuits aren’t always the best solution for clients, even if they make lawyers happier. My goal is to ensure client satisfaction and a good name in the community – not to steer you wrong. I had one potential fatality client, where we spent a very long time comparing the benefits and ultimately reached the conclusion that they were better served by accessing WSIB, rather than a lawsuit due to the liability situation and other significant issues. Do not automatically assume that a lawsuit is better – it is a complex analysis and you need to be sure that what you choose is right. Once you elect one system or the other, it can sometimes be very hard to re-elect.
In certain situations, people may wish to try to opt out of WSIB (the workers compensation system in Ontario) even though they are likely to be at fault or primarily at fault. For instance, in some cases the available accident benefits (no fault car insurance benefits) may be appealing. However, the WSIB and your auto insurance company may require some proof that you truly intend to sue in order for you to access the SABS (statutory accident benefits – no fault auto insurance benefits). A lawyer can assist with putting in the required statutory notice letter to allow you to access the benefits and/or a statement of claim (lawsuit) to speed up the process.
We offer free consultations and would be pleased to speak with you about your questions or concerns.