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WSIA - The Lawsuit-Benefits Trade-off (2). Irving Consumer Products Limited v. Singh
In Irving Consumer Products Limited v. Singh (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed a JR, this from a WSIAT decision and associated reconsideration that a respondent could sue a corporation and it's employee under WSIA s.28 ['Certain rights of action extinguished'] "for compensation for injuries suffered by Mr. [Gurjot] Singh in the course of his employment".
The incident and procedural facts are complex. Irving is a large multi-provincial NB-based corporation that hired Singh's employer Rangi to transport goods in a truck from NB to Toronto to Texas. Surinder Singh (SS) drove the truck from NB to Toronto, and Gurjot Singh (GS) drove it from Toronto to Texas where he was injured in it's unloading. Both Irving and Rangi are registered Schedule 1 employers under the Ontario WSIA scheme, and Irving is additionally registered under the similar NB scheme. Rather than claiming under Ontario WSIA scheme, GS and the trucking company sued Irving and an employee ('John Doe') in Ontario Superior Court for negligence in loading the truck in NB, on the argument that "the injuries sustained by Mr. [Gurjot] Singh in the course of his employment in Texas were caused by the negligence of Irving and John Doe improperly loading the trailer and securing the load in New Brunswick". In response, Irving commenced a third party claim against Rangi that Rangi and SS "caused or contributed to the injuries sustained by the plaintiffs Gurjot Singh and his spouse".
Irving then commenced an Ontario administrative "application under s. 31 of WSIA, 1997 seeking an order that the plaintiffs’ rights to sue them were extinguished under s. 28 of the statute", which the WSIAT dismissed on the basis that "John Doe has no connection to Ontario" (so, under that order, the main lawsuit could proceed). This WSIAT ruling was the subject of this JR, which was allowed and the application remitted back down to the WSIAT.
Here the court severally: canvasses the statutory provisions of the workers' compensation 'trade-off' whereby the injured worker get statutory benefits but sacrifices the right to sue as an aspect of constitutional 'comity', further dispels the application of constitutional inter-provinciality to the issue, and ultimately concludes that the correct approach to such issues is that of modern statutory interpretation (text, context, purpose) - though it remits the case back down to the WSIAT:[23] The following sections of the WSIA, 1997 require consideration:Definitions
2 (1) In this Act,
“worker” means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following:
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Insured injuries
13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
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Exception, employment outside Ontario
(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario.
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Employment outside Ontario
18 (1) This section applies if the accident happens while the worker is employed outside of Ontario, if the worker resides and is usually employed in Ontario and if the employer’s place of business is in Ontario.
Outside Ontario less than six months
(2) The worker is entitled to benefits under the insurance plan if the employment outside of Ontario has lasted less than six months.
Same, six months or more
(3) Upon the application of the employer, the Board may declare that the insurance plan applies to a worker whose employment outside of Ontario lasts or is likely to last six months or more.
Accident outside Ontario
19 (1) A worker who resides outside of Ontario is entitled to benefits under the insurance plan if his or her employer’s place of business is in Ontario, the worker’s usual place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a temporary purpose connected with the worker’s employment.
Same, non-Ontario employer
(2) If the accident happens outside of Ontario, the employer’s place of business is outside of Ontario and the worker is entitled to compensation under the law of the place where the accident happens, the worker is entitled to benefits under the insurance plan only if the worker’s place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a casual or incidental purpose connected with the worker’s employment.
Same, on a vessel
(3) If the accident happens outside of Ontario on a vessel, the worker is entitled to benefits under the insurance plan if the worker resides in Ontario and,
(a) if the vessel is registered in Canada; or
(b) if the chief place of business of its owner or of the person who offers it for charter is in Ontario.
Same, certain vehicles, etc.
(4) If the accident happens outside of Ontario on a train, an aircraft or a vessel or on a vehicle used to transport passengers or goods, the worker is entitled to benefits under the insurance plan if he or she resides in Ontario and is required to perform his or her employment both in and outside of Ontario.
Obligation to elect, concurrent entitlement outside Ontario
20 (1) This section applies if a worker is entitled to benefits under the insurance plan relating to an accident and is also entitled to compensation under the laws of another jurisdiction in respect of the accident regardless of where the accident occurs This section also applies with necessary modifications if the worker’s survivors are so entitled.
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No action for benefits
26 (1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.
Benefits in lieu of rights of action
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.
Application of certain sections
27 (1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan.
Same
(2) If a worker’s right of action is taken away under section 28 or 29, the worker’s spouse, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act.
Certain rights of action extinguished
28 (1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
1. Any Schedule 1 employer.
2. A director, executive officer or worker employed by any Schedule 1 employer.
Same, Schedule 2 employer
(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
1. The worker’s Schedule 2 employer.
2. A director, executive officer or worker employed by the worker’s Schedule 2 employer.
Restriction
(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.
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Liability where negligence, fault
29 (1) This section applies in the following circumstances:
1. In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
2. In an action by or on behalf of a worker employed by a Schedule 2 employer or a survivor of such a worker, the worker’s Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
Same
(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages.
Determination of fault
(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action.
Same
(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action.
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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.
Election
(2) The worker or survivor shall elect whether to claim the benefits or to commence the action and shall notify the Board of the option elected.
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Decisions re rights of action and liability
31 (1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,
(a) whether, because of this Act, the right to commence an action is taken away;
(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or
(c) whether the plaintiff is entitled to claim benefits under the insurance plan.
Same
(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).
Finality of decision
(3) A decision of the Appeals Tribunal under this section is final and is not open to question or review in a court. ....
Limits on the Right to Sue as part of the Workers’ Compensation Trade-off are Constitutionally Valid Laws
[81] Whitten J. noted that Pasiechnyk confirms that limits on parties’ rights to sue are valid provincial legislation in relation to the common law of torts within the province. They do not offend the constitutional authority of Superior Courts under s. 96 of the Constitution Act, 1867. Whitten J. continued:[18] The constitutionality of the workers' compensation statutes and their historic tradeoff which bars the possibility of an action against the employer was established in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44 (CanLII), [2013] 3 S.C.R. 53, [2013] S.C.J. No. 44.
[19] That decision penned by Lebel and Karakatsanis JJ. refers in para. 26 to the concise description provided by Professor Peter Hogg of the general nature and operation of workers' compensation schemes which, in effect, compresses the description provided by Sopinka J. set out above. [page112]
[20] The justices noted, "provincial workers' compensation schemes generally cover persons employed in the relevant province, even if a workplace accident occurs outside of the province" (para. 27). [82] Justice Whitten then turned to the law of “comity” involving, broadly speaking, the recognition of one state for the acts of another. He quoted from the decision of LaForest J. in Morguard Investments Ltd. v. De Savoye, 1990 CanLII 29 (SCC):[33] Justice La Forest wrote [at para. 31] that part of this recognition is based on the idea of "comity" and quoted the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at pp. 163-64 U.S.:Comity in the legal sense is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international law and convenience, and to the rights of its own citizens or other persons who are within the protection of its laws. (Emphasis added)
[34] Justice La Forest believed that "[t]he considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience . . . " (ref. ibid., at paras. 35 and 36).
[35] In La Forest J.'s view, "[i]t seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province" (ref. ibid., at para. 41).
4) The provincial superior courts
[36] Justice La Forest in Morguard described the Canadian federal court scene in the following [at para. 37]:The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges -- who also have superintending control over other provincial courts and tribunals -- are appointed and paid by the federal authorities . . . all are subject to final review by the Supreme Court of Canada, which can determine when the courts of one province have appropriately [page115] exercised jurisdiction in an action and the circumstances under which the courts of another province should recognize such judgments. [83] Justice Whitten drew on the importance of the trade-off that underlies workers’ compensation schemes in the context of the Canadian federal system to conclude as follows:[78] The provision of WCB insurance is country wide. Each plan incorporates a provision that reflects the historical tradeoff, or compromise as Sopinka J. described in Pasiechnyk reiterated by Lebel and Karakatsanis JJ. in Marine Services International Ltd.
[79] As was noted in Morguard Investments Ltd. v. De Savoye, La Forest J. indicates that rules of comity are even more applicable amongst units of a foreign state. In fact, the underlying focus for comity relies on reasons of justice, necessity and convenience.
[80] The existence of such plans across the country exist for the protection of workers and facilitate access to a ready source of monthly benefits in contrast to the ponderous obtaining of same pursuant to a tort action. Additionally, employers possess a similar [page121] certainty of exposure by contributing to such plans. For the employers, it is analogous to the purchase of a form of insurance.
[81] As La Forest J. observed in Morguard [at para. 41], it would "seem[page122] anarchic and unfair that a person should be able to avoid legal obligations arising in one province by simply moving to another province".
[82] The existence of principles of comity and the existence of the IJA, compelled Freeman J. in Spencer v. Mansour to find that a tort action by an employee was barred by the intent of Nova Scotian statute. This court is inclined to follow the precedent established by Freeman J. by the Nova Scotia Court of Appeal. To hold otherwise would threaten the fabric of WCB regimes across the country. There is no good reason to establish a tort haven amongst provinces that would encourage the circumventing of the statute and the historical tradeoff by simply moving to a different province.
[83] Therefore, by applying principles of comity and for reasons of justice, necessity and convenience this court finds that the plaintiff is statue-barred with respect to his tort action in this province. [84] As a result, the court barred an Ontario worker with an Alberta employer from seeking damages in tort in the Ontario Superior Court of Justice against a third party in Ontario.
[85] Similarly, in Marine Services International Ltd., discussed by Whitten J. above, the Supreme Court of Canada held that Newfoundland and Labrador workers’ compensation legislation that precluded a local injured fisherman from suing others under federal legislation regulating maritime torts was constitutionally valid. The Court held that the application of the provincial workers’ compensation law to bar tort claims under the federal law applicable to events outside the province on the high seas, “appears to reflect the long-standing intention of Parliament through the development of these schemes.”
[86] It is fundamental to note that there was no issue of extra-territoriality raised before or by Whitten J. in Thomson or the Supreme Court of Canada in Marine Services International Ltd. The issue is simply the reach of the trade-offs in lawsuits available to local workers in the provincial courts in the context of our federal national structure.
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[104] The issue then arises of whether s. 28 of WSIA, 1997, properly interpreted in accordance with modern principle of statutory interpretation and freed of any concern about extra-territorial application of the statute, applies to Irving and John Doe by its terms, context, and statutory purpose.
[105] In light of Vavilov’s clear call for deference to the primacy of specialized tribunals, I have decided that I should not engage in the statutory interpretation exercise. It is proper for this court to decide on the constitutional issue (whether it is truly one of vires or itself a question of statutory construction). Regardless, it is the unique and overriding responsibility of the court to provide clarity on constitutional issues. As stated by the Supreme Court of Canada in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 (CanLII),[64] The determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the Constitution. Courts must provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoy cannot vary “depending on how the state has chosen to delegate and wield its power” (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 116, per McLachlin C.J.). The presumptive standard of reasonableness is, thus, rebutted and correctness applies. [106] It falls to the tribunal then to consider whether s. 28 (1)1 of WSIA, 1997, properly interpreted, applies to Irving and whether, s. 28 (1)2 properly interpreted applies to John Doe.
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[110] The proper question for the tribunal will be whether s. 28 (1) applies to Irving and John Doe when interpreted in accordance with the modern principle of statutory interpretation with no consideration of extra-territoriality or the principle espoused in British Airways and with due regard to the shared national implementation of workers’ compensation schemes.
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