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:
- Was the injury sustained on the job; and,
- 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 reviews evidence to determine whether the injured employee or the at-fault party was in the course of employment at the time of the incident. Key factors considered include:
- Whether the injured party was being paid at the time of the incident that caused the injury
- Whether the incident occurred off the work premises
- Whether the injured party was engaged in work-related activities when the incident happened
- If the incident took place outside the injured party’s usual work hours
- Whether the injured party is an independent contractor or self-employed, as opposed to being an employee
If the Tribunal concludes that the injured party was in the course of employment when the injury occurred and is considered an employee of the at-fault party, the injured party’s claim will likely proceed through WSIB.
