Can you sue employer wsib

The following rules apply if the worker or survivor elects to commence the action instead of claiming benefits under the insurance plan. The worker or survivor is entitled to receive benefits under the insurance plan to the extent that, in a judgment in the action, the worker or survivor is awarded less than the amount described in paragraph three below.

If the worker or survivor settles the action and the WSIB approves the settlement before it is made, the worker or survivor is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement is less than the amount described in paragraph three below. The amount is the cost of the benefits that would have been provided under the insurance plan to the worker or survivor, if the worker or survivor had elected to claim benefits under the plan instead of commencing the action.

In most cases any right of action is taken away by the WSIA. However, there are circumstances where a worker or survivor may have a right of action against a third party. Right of action - means workers have a right to sue if their injury or disease results from the negligence of a third party, i. Third party - means someone other than the worker or the employer, and that person is not covered under Schedule 1. For the purposes of this policy worker refers to workers, survivors, dependants.

Where a worker is entitled to claim benefits and is also entitled to commence an action, the worker must elect to either claim benefits or to commence an action. The worker must elect to claim benefits by signing an election form, and returning it within three months of the date of the death or the accident. The WSIB determines the type of election form to be sent, depending on the type of accident and whether the employer belongs to Schedule 1 or Schedule 2.

See , Workers' Requirement to Claim and Consent. The WSIB can extend the three month time limit to return the election form. When all parties involved in the accident were in the course of their employment, the worker has no right of action against any Schedule 1.

If a worker signs the election form, the WSIB determines whether a legal action will be commenced. At the time that the motor catches fire, a co-worker was performing maintenance. Investigations reveal however that the motor had a manufacturing defect. It was negligently designed and manufactured. In this example, the Schedule 1 injured worker is barred from suing his Schedule 1 employer and is barred from suing his Schedule 1 co-worker. He is however free to pursue a claim against the manufacturer, which is not a Schedule 1 employer.

There may well be a very valid claim that could be advanced. Again, this type of determination should be made by an experienced lawyer. This blog only scratches the surface. The lawyers at Lerners will be a very valuable resource for you if you are confronted with any of these situations.

We are here to help so please contact us for a no-cost consultation. Employees who work in omitted industries are always entitled to sue at-fault employers or their employees for negligence. Once a decision is made, it is imperative that an Election Form is completed and submitted to the WSIB within three months after the work-related accident occurs.

There are various reasons workers might opt-out of WSIB benefits. The primary reason is when some other benefit scheme or lawsuit might provide better compensation. Appendix B lists some pros and cons to consider when there is concurrent entitlement.

Conclusion: Making an election in your best interest can be a complex legal analysis. Obtaining legal advice to evaluate your situation is strongly recommended. Prior to law school, she completed her philosophy degree at York University and paralegal diploma at Seneca College, where she also received a certificate in Alternative Dispute Resolution. Tina has diverse litigation experience as a law clerk, having worked at both plaintiff and defence personal injury boutiques.

She has also worked in corporate and securities litigation and administrative law. Through her legal background, Tina understands the challenges clients face, due to the complex nature of the legal process, and she looks forward to assisting and advocating on their behalf. Enter your email address in the field below to subscribe to the OTLA Blog and receive notifications of new posts by email. Under the WSIA , the key to determining whether a worker is entitled to benefits from the WSIB is whether the injury was sustained in the course of and arising out of their employment.

In finding the Worker was statutorily barred from filing a claim against the Bakery and its landlord, the WSIAT confirmed that the key factors were that i the Worker regularly attended at the Bakery to purchase goods on behalf of his employer, including during the evenings, and ii that job-related function was the sole reason he had attended at the Bakery that evening.

For more information or assistance with respect to a prospective right to sue application or other workplace matters that engage the WSIA , please contact James Jennings at Download the PDF.