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WSIA - Settlements. Toronto Transit Commission v. Bering et al.
In Toronto Transit Commission v. Bering et al. (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a JR, this brought against "decisions of the Workplace Safety and Insurance Board" that "approved the settlement of an action that the worker had made about three years earlier thereby permitting him to seek “top up” benefits under s. 30 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (the “WSIA”), even though he did not obtain the WSIB’s approval before settling the action".
Here the court considers WSIA s.30(14)2 ['If worker elects to commence action']:Was the WSIB’s Interpretation of Paragraph 30(14)2. of the WSIA Reasonable?
[17] In its Reconsideration Decision, the WSIB acknowledges that it is approving the settlement of the civil action after the settlement was made and provides the following reasons for finding that it has the authority to do so:(a) The purpose of the WSIA is to provide compensation to injured workers. Under s. 30(14) of the WSIA, all injured workers are entitled to receive benefits under the WSIA, regardless of whether they have elected to commence an action in respect of their workplace injuries. Workers who have pursued an action may make an application for benefits under the WSIA in order to be “topped up” in the event that they do not recover that much through their action.
(b) It would be unreasonable to forever bar the worker from entitlement under the WSIA because of the timing of the worker’s request for approval of their settlement. [18] The WSIB’s Decision addresses whether the settlement was reasonable but does not address the timing of the request for the approval or any considerations or prejudice that might arise from timing of the request for approval.
[19] Subsection 30(14) of the WSIA states:Election, concurrent entitlements
30 (1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease.
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If worker elects to commence action
(14) The following rules apply if the worker or survivor elects to commence the action instead of claiming benefits under the insurance plan:
1. 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 3.
2. If the worker or survivor settles the action and the Board 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 3.
3. For the purposes of paragraphs 1 and 2, the amount is the cost to the Board of the benefits that would have been provided under the plan to the worker or survivor, if the worker or survivor had elected to claim benefits under the plan instead of commencing the action. [Underlining added] [20] Under s. 30(14)2. of the WSIA, if the WSIB approves a worker’s settlement before it is made, then a worker is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement is less than the cost to the WSIB of the benefits that would have been provided under the plan to the worker, if the worker had elected to claim benefits under the plan instead of commencing the action.
[21] The TTC makes the following submissions about s. 30(14)2. of the WSIA:(a) Paragraph 30(14)2. of the WSIA is “precise and unequivocal” and requires that the WSIB approve a worker’s civil settlement prior to the settlement being made in order for a worker to receive benefits under the WSIA.
(b) The decisions are unreasonable because they failed to apply a modern approach to statutory interpretation as they demonstrate an unreasonable departure from the express wording of s. 30(14)2. The WSIB placed undue weight on the general purpose and intent of the WSIA, as opposed to the text and context of the specific provisions of s. 30(14)2. of the WSIA to conclude the approval precondition found in s. 30(14)2. is inapplicable given the broader purpose of the WSIA. ....
[24] The purpose of the WSIA is stated at s. 1 and is “… to accomplish the following in a financially responsible and accountable manner:1. To promote health and safety in workplaces.
2. To facilitate the return to work and recovery of workers who sustain personal injury arising out of and in the course of employment or who suffer from an occupational disease.
3. To facilitate the re-entry into the labour market of workers and spouses of deceased workers.
4. To provide compensation and other benefits to workers and to the survivors of deceased workers.” [25] When a worker is entitled to benefits in respect of an injury under the WSIA and is also entitled to commence an action against a person in respect of that injury, section 30 of the WSIA:(a) Obliges a worker to elect whether to claim benefits or commence the action within three months after the accident;
(b) Expressly permits the WSIB to extend the three-month election period if it is just to do so; and
(c) If a worker elects to claim benefits under the WSIA and if that worker is employed by a Schedule 2 employer, subrogates the employer to the rights of the worker in respect of the action. The employer is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms. [26] Thus, while the WSIA states that a worker must obtain the WSIB’s approval before settling an action, the Reconsideration Decision views the timing of this approval requirement as directory rather than mandatory.
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[29] The requirement that the WSIB approve a worker’s settlement of their action is the core feature of s. 30(14)2. of the WSIA. While the ordinary meaning of the word “before” clearly refers to the period of time preceding an event, I find that the requirement that such approval be obtained “before” a settlement is directory rather than mandatory. The purpose of the pre-approval requirement is to ensure that the employer, by providing top up compensation, does not absorb the financial consequences of a worker’s improvident settlement of an action. The worker, in settling their action, bears the risk of losing the right to apply for top up compensation if the WSIB refuses to approve a settlement made without the WSIB’s approval.
[30] In that context, to conclude that the requirement that an employee shall obtain pre-approval of a settlement is mandatory would create an injustice for injured workers, particularly given that one of the purposes of the WSIA is to provide compensation to injured workers in a financially responsible and accountable manner. I agree with the view expressed in the Reconsideration Decision that “it would be unreasonable to forever bar the worker from WSIA entitlement because of the timing of the settlement approval”. In this particular situation, depriving Mr. Bering of the substantive benefits of the WSIA would be contrary to WSIA’s purpose. Doing so would not only exemplify the type of “inconvenient effect” that Iacobucci J. warned about in British Columbia (Attorney General), but it would also result in an injustice: York Region Standard Condominium Corporation No. 1206 v. 520 Steeles Developments Inc., 2020 ONCA 63, 444 D.L.R. (4th) 415, at para. 33.
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