Is It A WSIB Case or Is It a Personal Injury Case?

Every year, thousands of Ontarians are injured at work. These injuries range from muscle strains and relatively minor mental distress to catastrophic impairments and fatalities. Your first instinct when thinking of work-related injury compensation may be to turn to the Workplace Safety and Insurance Board (WSIB). However, the WSIB may not be the only option for compensation in your circumstances; sometimes the injured party maintains the option to pursue a civil action against an at fault party.

The Workplace Safety and Insurance Board

The WSIB provides no-fault insurance for workplace injuries and illnesses, including compensation for lost wages, medical expenses and rehabilitation costs. This allows injured parties to begin their road to recovery immediately without having to turn to litigation against their employer.

Eligibility for WSIB

The Workplace Safety and Insurance Act separates Ontario employers into two types: Schedule 1 and Schedule 2. Most employers fall under Schedule 1 for which WSIB coverage is mandatory.

A Schedule 1 worker is eligible for WSIB benefits when they are injured within “the course of employment” (WSIA s.13(1)). The legislation does not provide a definition for this, however, there are a set of circumstantial criteria that is used to determine whether an injured party is in the course of their employment on a case-by-case basis.

This criterion includes the place the injury occurred, the time at which it occurred, and the activity in which the worker was participating at the time the injury occurred. Determining this may be incredibly straightforward, especially where the worker was injured on the premises of their workplace within the fixed timeframe for which they work. However, accidents can occur in the grey areas of employment, where the worker’s duties are not so easily placed to a location. For example, this can occur when the duties of employment require the worker to travel away from their place of work while still on the clock. In these circumstances the evaluation is more complicated and will turn on the nature of the employee’s responsibilities.

Option of Civil Action

Say you get into a car accident with another driver and sustained injuries. If you were travelling in relation to the duties of your employment, you will be eligible to collect under your WSIB coverage. Whether or not you have the option to commence a civil action against the other driver will depend on whether they were also in the course of their employment.

Scenario #1

If both you and the other driver were in the course of your employment, you will be eligible to make a claim under WSIB, regardless of who’s fault the accident was. However, in this circumstance, section 28 of the Workplace Safety Insurance Act will extinguish your right to pursue a legal action against the other driver.

Scenario #2

If you were in the course of your employment, but the other driver was not, you have the option of collecting under your WSIB coverage or commencing a civil action for damages against the at-fault driver. You cannot commence a lawsuit and collect WSIB benefits.

Making the Election      

Those with the right to receive under WSIB benefits or start a lawsuit must notify the WSIB of their decision. This decision, known as an election, must be made within 3 months of the accident that caused the injury. If no election is made within this period, the worker will be deemed to have elected to receive benefits under their coverage, and their right to commence a lawsuit will be extinguished.

Choosing whether to seek compensation by way of WSIB benefits or legal action requires careful assessment of the circumstances surrounding the injury. If you are injured while working, contact a lawyer as soon as possible to understand your rights and your best avenue for compensation.

About the Authors

Bennet strives to support those who have been seriously injured by helping them traverse legal obstacles standing in the way of their recovery. He takes immense gratification in helping his clients obtain the compensation they are entitled to.

Bennet joined Oatley Vigmond as a junior law clerk in 2020 and returned as summer student in 2022 and 2023. Upon his call to the bar in 2024, he joined the team as an associate lawyer.