In a, perhaps, unfortunate twist, the Ontario Superior Court of Justice has ruled that it is not “plain and obvious” that an employee’s claim against his employer cannot succeed – because the WSIB denied him workers’ compensation benefits.
Section 28 of the Workplace Safety and Insurance Act (WSIA) extinguishes certain rights of action, where injuries are sustained by workers in and of the course of employment. Ordinarily, workers who sustain workplace injuries cannot sue their employers for damages arising therefrom. Workers also cannot sue the employer of another worker whose negligence caused their workplace injury (provided both employers are covered schedule 1, or both employers are schedule 2 employers, under the WSIA).
In Kingsley v. City of Ottawa, Derek Kingsley sustained apparently serious injuries while operating a vehicle owned by his employer, the City of Ottawa. Tania Kingsley was in the truck at the time. Mr. Kingsley sought benefits under the WSIA, but the WSIB denied his claim on the basis that he was not acting in and of the course of employment at the time (details are scarce in the court decision as to why he was operating the city’s truck while off-duty). The plaintiffs alleged, among other things, that the City’s negligence caused the truck to fail to operate properly, which they assert caused the accident.
The Court found that it was not prepared, on a motion for summary judgement, to strike out the claim as barred by the WSIA. Although Mr. Kingsley’s WSIB appeal rights had not expired, given that the WSIB had already denied benefits it could not be said that it was plain and obvious that the negligence suit was statute-barred.