Can You Opt Out of WSIB and Launch a Tort Claim?

Can you opt-out of WSIB and launch a Tort Claim?  The answer to this question is, “It depends.”

Whether or not a claim for an injury proceeds through WSIB or a tort claim is usually dependent on the following criteria:

1. Was the injury sustained on the job; and,
2. If so, is the injured party eligible for WSIB.

The Workplace Safety and Insurance Act (WSIA) was enacted by the Ontario government to provide a number of protections for employees. However, this Act also gave employers an upper hand with respect to work-related injuries suffered by employees.

The Act can prevent an employee who has gotten hurt on the job from suing the at-fault employer or co-workers.

Given the existence of the Act, insurance companies can deny tort claims if it can be established and proven that the claimant is eligible for workers’ compensation benefits.

The question of whether or not the injured party and the at-fault party were operating or interacting in the course of the injured party’s employment is determined by the Workplace Safety and Insurance Appeal Tribunal.

The Tribunal considers evidence to demonstrate that either the injured employee or the at-fault party were or were not in the course of employment such as:

• the injured party was not getting paid at the time of the incident that caused the injury
• whether or not the incident occurred off work premises
• whether or not the injured party was engaged in work-related business at the time of the incident
• if the incident occurred outside of the injured party’s usual work hours
• if the injured party is an independent contractor or self-employed rather than an employee

If the Tribunal finds that an injured party was in the course of his or her employment when the injury took place and is deemed an employee of the at-fault party, then the injured party’s claim likely will proceed through WSIB.