Can I file a lawsuit if I become injured in the workplace?

For most jobs, an employee does not have the right to file a lawsuit if they become injured in the workplace. Instead, they receive benefits through the Workplace Safety & Insurance Board (WSIB). However, these benefits can be insufficient for paying expenses.

Background

Under the law, employers must pay WSIB premiums into a fund. If any of their employees become injured in the workplace, the employee will be able to draw from that fund. However, in most cases, the compensation payouts in court exceed those payouts from the fund, and what WSIB pays out for pain and suffering is very limited. It will not, for example, pay an upfront sum to cover health expenses or future losses of income. A lawsuit, however, can do that.

If you become injured at work, you will receive a file number from WSIB. After 12 months, your file could be hundreds of pages long. Most of the time, you will have multiple caseworkers who are not very familiar with your file. Furthermore, even though many civil servants will end up handling your claim, you may not receive compensation. 

Can I circumvent the rule against filing a lawsuit?

Not in most cases. Let us assume, for example, that you drive a vehicle for a living. Let us also assume that another driver who drives a vehicle for a living runs a red light and runs into your vehicle. If you are both covered by WSIB benefits, neither of you will be able to file a lawsuit. On the other hand, you could file a lawsuit if:

• the collision occurs after you have left the parking lot at your workplace;
• the other driver is an independent contractor; or
• neither of you is required to have WSIB coverage.

If I have already applied for WSIB, can I still opt to file a lawsuit?

You can opt-out of WSIB and file a lawsuit in certain situations. Although you cannot file a lawsuit against your employer if they are a schedule 2 employer, you could sue a third party who was at fault for the collision. However, it depends on who was officially at fault for the collision and the industry in which you work. 

Who decides whether I have a right to file a lawsuit?

In a lawsuit, the defendant can seek a hearing before the Workplace Safety and Insurance Appeals Tribunal (WSIAT) and request that it rule on the matter. Your lawsuit is pending until the WSIAT renders its decision. Although you may end up waiting a few years to get your hearing, we have found that the WSIAT renders their decision not long after the hearing occurs. Of course, sometimes delays occur.

If you have any questions, call the personal injury lawyers at McNally Gervan of Ottawa, at 613-238-1424.