If you're injured in a car accident while working in Ontario, you might be surprised to learn that you may not automatically have the right to sue the at-fault driver. This is especially true if both you and the other driver were "workers" acting in the course of their employment at the time of the accident. In many cases, your only recourse would be through the Workplace Safety and Insurance Board (WSIB).
But there's good news: in some circumstances, you can opt out of WSIB benefits and instead pursue a lawsuit against the at-fault driver, along with a claim for accident benefits under your auto insurance policy.
WSIB or lawsuit: Choosing your path
In Ontario, the Workplace Safety and Insurance Act (the "Act") limits the ability of workers to sue if their injuries occurred in the course of employment. However, WSIB provides an "election" process under section 30 of the Act, allowing injured workers to choose between:
- Claiming WSIB benefits, or
- Suing the at-fault party, if that party is not protected by WSIB coverage in the context of the accident.
This election is not available in every circumstance. For example, in the context of a motor vehicle accident, if the at-fault driver was also in the course of their employment at the time of the collision, a lawsuit may be barred.
When can you elect to sue?
You may be eligible to opt out of WSIB benefits and pursue a lawsuit if:
- The person who caused the accident is not covered by WSIB in relation to the accident; or
- The person who caused the accident was not "in the course of employment" at the time of the accident (even if they're generally covered by WSIB).
Each case is fact specific. WSIB will ultimately determine whether you have the right to sue. If you believe you may have a claim against the other party, you must notify WSIB of your intention to elect to pursue a lawsuit. This must usually be done within three months of the accident.
What about accident benefits?
If you elect to sue the at-fault driver, you are also entitled to accident benefits through your own auto insurer. Accident benefits (also called "no-fault benefits") can help cover:
- Medical and rehabilitation expenses;
- Income replacement;
- Attendant care;
- Housekeeping and home maintenance; and
- Other essential support services.
However, if you opt for WSIB benefits, you are likely not entitled to accident benefits. This is another reason why it's crucial to make the right election early.
Why might you choose to sue instead?
There are several reasons a worker might opt out of WSIB and choose to sue:
- Pain and suffering compensation: WSIB does not compensate for pain and suffering; lawsuits do.
- Potentially higher compensation: In some cases, damages recovered in a lawsuit may be more substantial than WSIB benefits.
- Accountability: Some people prefer to hold the at-fault driver personally responsible. Although it is, in most cases, ultimately the driver's insurance that pays in a motor vehicle accident lawsuit, the at-fault driver is named as a defendant and will need to be involved whereas a WSIB claim does not involve the at-fault driver.
That said, lawsuits come with their own challenges, including proving liability and the potential for delays and legal costs. It's not always the better option—but it can be, depending on your circumstances.
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.
