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Workplace Safety and Insurance Act

. Chen v. Workplace Safety and Insurance Appeals Tribunal

In Chen v. Workplace Safety and Insurance Appeals Tribunal (Div Ct, 2021) the Divisional Court sets out the basic legal trade-off of WSIB legislation:
[3] A worker who is injured in an accident arising out of and in the course of employment is entitled to benefits under the insurance plan established by the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) (see s.13(1)). Pursuant to s. 26(2), those benefits are in lieu of a right of action against the employer, and s. 28(1) provides that a worker employed by a Schedule 1 employer cannot sue any Schedule 1 employer with respect to their injury or disease.

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[14] The applicant submits that it is unfair and unjust to prevent her from proceeding with a tort action. However, the bar to her action arises from the WSIA, particularly s. 28(1). A worker of a Schedule 1 employer who is injured in the course of her employment is barred from pursuing a tort action against Schedule 1 employers because of what is known as the “historic trade-off”: the legislation gives such workers access to the no fault workers compensation scheme in return for the bar to civil proceedings against employers (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] 2 S.C.R. 890 at paras. 25-26).
. Chen v. Workplace Safety and Insurance Appeals Tribunal

In Chen v. Workplace Safety and Insurance Appeals Tribunal (Ont CA, 2020) the Divisional Court clarified that while the Workplace Safety and Insurance Act, 1997 (WSIA) states that deciding when a person has a right to sue for workplace injury is in the exclusive jurisdiction of the WSIAT (Workplace Safety and Insurance Appeals Tribunal), a party stills retain the right of judicial review over that decision:
[3] WSIAT has exclusive jurisdiction to decide whether a person’s right of action (the ability to sue in court) is taken away by the Workplace Safety and Insurance Act, 1997, SO 1997, c.16, Sch. A., s.31(10 and (2). A decision of WSIAT on this issue “is final and is not open to question or review in a court” (s.31(3)). Notwithstanding this very strong language, this court still retains jurisdiction to review the decision, but the deference accorded to WSIAT on review is high.

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