The interplay between tort/bodily injury cases and workers'
compensation is often complex, but may prove to be a useful tool
for insurers to attempt to dismiss an action against their insured.
It becomes increasingly more complex when it involves a deceased
worker and the right of action of surviving Family Law Act
("FLA") claimants of that worker.
By way of background, the Workplace Safety and Insurance Appeals
Tribunal ("WSIAT") has exclusive jurisdiction to
determine whether because of the Workplace Safety and Insurance
Act, 1997 ("WSIA"), the right of a worker
to commence and maintain an action is taken away. There is a
historic trade-off that exists where employers pay insurance
premiums to the WSIB in the event of a workplace accident, and in
turn, workers are not able to sue their employers (or possibly
other workers). Insurers have standing to bring a Right to Sue
Application to WSIAT to determine whether a worker's right of
action is taken away by the WSIA. This same approach is
applicable to the right of action of surviving family members of
The case of Dower v. United Lumber and Building Supplies company
Ltd., 2008 CanLII 19218 (ONSC), and several other
WSIAT decisions, confirmed that if an FLA claimant was not
found to be a "dependant" or a "survivor" of a
deceased worker, then that FLA claimant's right of
action was not taken away by the WSIA, pursuant to
sections 26-28 of the WSIA. A "survivor" means a
spouse, child or dependant of a deceased worker. A
"dependant" means an individual who was partly or wholly
dependent upon the worker's earnings at the time of death. In
the case of Dower, the mother of a deceased worker
commenced an action against her late son's employer and two
employees further to a workplace accident, pursuant to section 61
of the FLA. It was determined by WSIAT
that the mother's action was not barred against the
employer and two employees, as she was neither a survivor nor a
dependant of the worker. This was the more historic approach taken
However, a recent WSIAT decision appears to signal a shift away
from the historic approach to FLA claimants' right of
action. WSIAT Decision No. 670/15 considered
the circumstance of a 21 year old volunteer firefighter working for
a township who was operating a pumper truck by himself, en route to
the scene of a fire when he lost control in slippery conditions and
succumbed to his injuries. The worker's estate and several of
his surviving family members (i.e. his parents, sister, brother and
three grandparents) commenced a civil action against several
parties, including the worker's employer (i.e. the township)
and several other workers (i.e. other firefighters). The
defendants brought a Right to Sue application to WSIAT to determine
whether the right of these FLA claimants was barred.
Interestingly, there was no discussion about whether the
FLA claimants were "dependants" or
"survivors" of the worker – as well, it would be
difficult to see how a 21 year old volunteer provided sufficient
financial support to his family. Instead, the Vice-Chair noted that
the provisions in the WSIA were clear, which provided
that: "entitlement to benefits under the insurance plan is in
lieu of all rights of action (statutory or otherwise) that
a worker, a worker's survivor or a worker's spouse, child
or dependant has or may have against the worker's employer or
an executive officer of the employer for or by reason of an
accident happening to the worker... while in the employment of the
employer." The Vice-Chair focused on the fact that the
relevant consideration was whether the action was "in respect
of the worker's injury or disease," rather than the form
of the action (e.g. if it was due to negligence or breach of
contract). Accordingly, the Vice-Chair determined that the
FLA claimants' right of action against the defendants
was removed by the WSIA.
WSIAT Decision 670/15 appears to interpret the
provisions of the WSIA more broadly, and does not restrict
the barring of a right of action to "survivors" and
"dependants", but rather, family members more generally.
As such, the provisions of the WSIA may be of
assistance to insurers looking to dismiss the entire action, or at
least some of the FLA claims, as against their
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Under B.C.'s former and current Limitation Act, the limitation period for a Plaintiff's claim can be extended on the basis of a Defendant having acknowledged in writing some liability for the cause of action.
Automobile drivers, like fine wine, tend to get better with age. Older drivers can draw on a wealth of experience from their years on the road to assist them when faced by a variety of dangerous conditions.
The insurance industry will be interested in Ledcor Construction Ltd v. Northbridge Indemnity Insurance Co because of principles the Supreme Court of Canada applied to the "faulty workmanship" exclusion in a Builders' Risk policy.
For the first time in BC, a Court has decided that an insured is entitled to special costs, rather than the lower tariff costs, solely because they were successful in a coverage action against their insurer.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).