You were hurt at work. Maybe it was a fall from a ladder, a back injury lifting stock, a collision while driving for your employer, or a repetitive strain that built up over months. You reported it, or you are about to. What happens next depends on a set of rules that most people never think about until they are injured, and the biggest of those rules is that for most Ontario workers, the usual right to sue has been replaced by a compensation system.
The trade-off at the heart of workers’ compensation
Ontario’s Workplace Safety and Insurance Act creates a no-fault system. Workers covered by it receive benefits from the Workplace Safety and Insurance Board without having to prove that anyone was negligent. In exchange, they generally cannot sue their employer, or other workers and employers covered by the same system, for a workplace injury. Whether you fall within the system depends on your employer’s industry and classification, and on whether you were in the course of employment when the injury happened.
The upshot is that the first question after a workplace injury is not who was at fault but whether the compensation system applies. That question determines everything that follows.
Reporting and the claim
Report the injury to your employer as soon as possible and get medical attention. The employer is required to report to the Board within a short period of learning of an injury that requires health care or time off, and you file your own report as well. The Board then decides whether the claim is allowed.
An allowed claim can provide health care costs, loss of earnings benefits based on a portion of your pre-injury earnings, an award for permanent impairment, and support with returning to work or retraining where the injury prevents a return to the old job. Benefits are reviewed over time, and disputes about the extent of impairment, the ability to return to work, and whether a condition is related to the workplace are common.
When you can sue
There are situations where a lawsuit is available despite a workplace injury.
- The other party is outside the system. If you were injured by someone who is not a covered worker or employer, for example a member of the public who caused a car accident while you were driving for work, you may be able to sue that person. Where the Board’s system would otherwise apply, you must make an election between claiming benefits and suing, and there is a short deadline for it. The choice has lasting consequences and should not be made without advice.
- Your employer is not covered. Some employers are outside the mandatory system. If yours is one of them, the ordinary right to sue for negligence remains, and the claim proceeds like any other personal injury case.
- The injury was not in the course of employment. The system only covers injuries arising out of and in the course of employment. Where it does not apply, ordinary tort rules do. Disputes over whether an injury was work-related are decided by the Board and, on appeal, by the Workplace Safety and Insurance Appeals Tribunal, which also decides applications about whether a lawsuit is barred.
Appeals
If the Board denies the claim or a specific benefit, the decision can be objected to internally, and then appealed to the Appeals Tribunal, an independent body. Each stage has time limits, and the internal objection deadline is short for some decisions. The appeal process depends on the medical and employment record, so keeping treatment consistent and documentation complete matters as much here as in any other injury claim.
Motor vehicle accidents at work
Collisions while driving for work raise a particular set of questions. Accident benefits under auto insurance and workplace benefits interact, and the Board system generally takes priority where both apply. Whether you can also pursue a tort claim against the other driver depends on their status and on the election described above. These cases benefit from early advice because the deadlines are tight and the interaction is easy to get wrong.
Third-party and product claims
An injury caused by defective equipment, an unsafe premises owned by someone other than the employer, or a contractor from outside the system may support a claim against that third party even where your employer cannot be sued. Preserve the equipment, photograph the scene, and identify the parties involved before the details are lost.
What to do now
Report promptly and in writing. See a doctor and follow the treatment plan. Keep copies of every form and every decision letter, and note the date on each, since deadlines run from those dates. Do not sign anything from an employer, insurer or third party without advice. And ask early whether a lawsuit is available, because the election deadline where one exists will not wait. Our post on limitation periods covers the other deadlines that can apply.
How we can help
At Kabir & Alam, we assess whether a workplace injury is confined to the compensation system or supports a claim against a third party, and we assist with the election and the deadlines that come with it. Read more about our personal injury practice, or book a consultation with us.
This post is general information about Ontario personal injury law and is not legal advice. Every case turns on its own facts. Speak with a lawyer about your situation before making decisions.