WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL

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1 2003 ONWSIAT 1955 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 234/03 [1] This right to sue application was heard in London on February 4, 2003, by Vice-Chair M. Kenny. THE RIGHT TO SUE APPLICATION [2] This is an application under section 31 of the Workplace Safety and Insurance Act. [3] The Applicants, Azad Zebari and Aboutown Transportation Limited, are Defendants in an action filed in the Ontario Superior Court of Justice as Court File No They were represented by their lawyer A. Goldberg of Lerner & Associates. [4] The Respondents, Luke Waddilove, Andrea Strupat, Jody Waddilove, Sherry Waddilove, Nancy Strupat, and Douglas Strupat, are Plaintiffs in the Court action. They were represented by G. Belch, Assistant City Solicitor for The Corporation of the City of London. Mr. Luke Waddilove attended the hearing with Mr. Belch. THE RECORD [5] The following written material was filed: 1. The Applicants Section 31 Statement (Exhibit #1). 2. Case Record Addendum 1 (Exhibit #2). 3. January 27, 2003, memorandum forwarding correspondence from Ms. Goldberg and the Tribunal s Office of the Vice-Chair Registrar (Exhibit #3). 4. s dated February 3, 2003, confirming that no Respondents Section 31 Statement was filed (Exhibit #4). 5. Tribunal Decision No. 145/95 (Lozo v. Parish) [6] After the hearing, the Ontario Court of Appeal released its decision in Sutor v. Workplace Safety and Insurance Board 1. This was one of the cases discussed at the hearing. I therefore asked the Tribunal Counsel Office to provide the parties lawyers with copies of the Court of Appeal decision. They were given an opportunity to make additional submissions. Both Ms. Goldberg and Mr. Belch sent additional submissions, and these submissions were included in Post-Hearing Addenda Nos. 1 and 2. 1 (2003), 63 O.R. (3d) 257.

2 Page: 2 Decision No. 234/03 THE ISSUES [7] On November 21, 1999, the Respondent, Mr. Luke Waddilove, was driving a police cruiser that was involved in a collision with a taxi cab driven by one of the Applicants, Mr. Azad Zebari. The taxi cab driven by Mr. Zebari was owned by Aboutown Transportation Ltd. Mr. Waddilove sustained a personal injury as a result of that accident. [8] Mr. Luke Waddilove was employed by the Police Services Board of the City of London (referred to in this decision as The City ) at the time of the accident. He was a worker within the meaning of the WSIA and he was in the course of his employment when the accident occurred. [9] The City is a Schedule 2 employer. Mr. Waddilove elected to receive benefits under the Workplace Safety and Insurance Act, 1997 (the WSIA ) for the injuries he sustained in the accident. The City paid him those benefits in accordance with the provisions of the WSIA that are applicable to Schedule 2 employers. [10] In November 2000, an action was commenced in the Ontario Superior Court of Justice (Court File No ). Mr. Luke Waddilove and members of his family were named as the Plaintiffs in this action. Mr. Waddilove claimed damages for injuries sustained in the November 1999 accident. The other Plaintiffs claimed damages pursuant to the Family Law Act. [11] Although the documents filed with the Court in this action do not expressly state that The City was exercising its subrogated rights in bringing this action, the Statement of Claim states The City s position on certain issues and The City s lawyer (Mr. Belch) was the solicitor for the Plaintiffs. At the hearing, Mr. Belch indicated that this action had been brought to preserve rights in light of a limitation period, and so that The City could recover what it had paid to the worker (Mr. Waddilove). He indicated that, if there had been any extra money recovered from the lawsuit, The City would have paid it to the worker. [12] The Applicants lawyer asks for an Order pursuant to Section 31(1) of the WSIA that the right of the Plaintiffs to commence an action is taken away because the Plaintiff, Luke Waddilove, has elected to receive benefits under the Act and the general right of a Schedule 2 employer to be subrogated to the worker s rights is removed by section of the Insurance Act in cases involving motor vehicle accidents. [13] The issues to be decided are therefore: 1. Are the Plaintiffs rights to bring this action taken away by the WSIA? 2. Is The City subrogated to the rights of the worker and able to continue this action? Or have The City s subrogation rights been taken away by the Insurance Act? [14] Before deciding the second issue, it is necessary to decide whether the Tribunal has jurisdiction to find that the Schedule 2 employer's right to continue this action has been taken away by provisions of the Insurance Act. Thus, at the hearing, I referred the representatives to Tribunal Decision No. 145/95 (Lozo v. Parish) and asked for their submissions on this jurisdictional issue.

3 Page: 3 Decision No. 234/03 THE REASONS [15] In order to decide the above issues, it is necessary to consider the provisions of the WSIA that deal with: The rights of a Schedule 2 worker to sue Defendants other than his/her own Schedule 2 employer the rights of family members of a Schedule 2 worker to pursue claims for damages under the Family Law Act the effect of a Schedule 2 worker s election to claim benefits under the WSIA the subrogated rights of a Schedule 2 employer to pursue an action for damages for a worker s injuries when that worker has elected to receive benefits under the WSIA and the Schedule 2 employer has paid those benefits [16] It is then necessary to consider the Applicants lawyer s argument that provisions of the Insurance Act have removed subrogation rights that this Schedule 2 employer would otherwise have had under the WSIA to pursue an action against the Defendants (to recover amounts the Schedule 2 employer paid the worker as benefits). However, before deciding that issue, it is necessary to address the question of whether the Tribunal has jurisdiction to decide that other legislation has taken away rights an employer would otherwise have under the WSIA. (a) The Workplace Safety and Insurance Act, 1997 (the WSIA ) [17] In this action, the named Plaintiffs are Mr. Luke Waddilove and members of his family. [18] Mr. Waddilove was a worker of a Schedule 2 employer. He was in the course of his employment at the time of the accident. [19] Therefore, section 28(2) of the WSIA applies to Mr. Waddilove. It states: 28.(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. [20] Thus, section 28 takes away Mr. Waddilove s right to sue his Schedule 2 employer (The City) and his employer s workers/officers, but it does not take away his right to sue other persons, such as a Schedule 1 employer, or a worker of a Schedule 1 employer even if that Schedule 1 worker was in the course of employment at the time of the happening of the accident. Thus, section 28(2) does not take away Mr. Waddilove s right to sue the Defendants named in this action.

4 Page: 4 Decision No. 234/03 [21] Mr. Waddilove was therefore entitled to benefits under the WSIA and he was also entitled to commence an action against the Defendants in respect of his injury. In these circumstances, section 30 of the WSIA gave him the right to elect to claim benefits or to sue. Section 30 states: 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. (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. (3) If the worker is or was employed by a Schedule 2 employer, the worker or survivor shall also notify the employer. [22] In Sutor v. Workplace Safety and Inurance Board 2, the Ontario Court of Appeal described the effect of a worker s election as follows:... It has been a fundamental principle of workers compensation in Ontario since January 1, 1915 that a worker covered by the legislation who is injured in circumstances giving rise to a cause of action has a choice. The worker can claim the benefits provided by the legislation or s/he can sue. The language of S.O. 1914, c. 25, s.9(1), may claim such benefits or may bring such action is carried forward in s. 10(1) of WCA, There is no suggestion that an injured worker may do both. Such a suggestion would be entirely at odds with the principle of choice expressed in s.10(1). [23] Similar language is used in section 30(2) of the WSIA. The worker shall elect whether to claim benefits or to commence the action (emphasis added). [24] Although section 30 also refers to the right of a survivor to make an election, the family member Plaintiffs in this case are not survivors within the meaning of the WSIA because Mr. Waddilove is not deceased. [25] Section 27(2) is the only provision in the WSIA that deals specifically with the rights of certain family members to commence an action under the Family Law Act. It states: 27.(2) If a worker s right of action is taken away under section 28 or 29, the worker s spouse, same-sex partner, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act. [26] Neither section 28 (the section taking away the worker s right to sue his Schedule 2 employer) nor section 29 (the section preventing the worker from recovering damages, contribution or indemnity for any negligence attributable to his Schedule 2 employer) took away Mr. Waddilove s right to sue the Defendants in this action. Thus, section 27(2) of the WSIA does not remove the right of family member Plaintiffs to commence an action under section 61 of the Family Law Act. 2 (2003), 63 O.R. (3d) 267 at

5 Page: 5 Decision No. 234/03 [27] Mr. Waddilove elected to claim benefits under the WSIA. Although there was no copy of the election form included in the materials filed, both Mr. Waddilove and the lawyer for The City agreed that Mr. Waddilove had elected to claim benefits under the WSIA and The City (as a Schedule 2 employer) paid those benefits. [28] Once Mr. Waddilove made his election to receive benefits under the WSIA, his right to sue persons (such as the Defendants) was subrogated to The City. In this regard, section 30 of the WSIA states: 30.(11) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the worker or survivor 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. (12) If the Board or the employer pursues the action and receives an amount of money greater than the amount expended in pursuing the action and providing the benefits under the insurance plan to the worker or the survivor, the Board or the employer (as the case may be) shall pay the surplus to the worker or survivor. [29] Thus, section 30(11) of the WSIA gives The City the right to commence, continue, or abandon this action and to settle it. As indicated by Mr. Belch, by pursuing this action The City could recover amounts The City paid to the worker as benefits under the WSIA for injuries he sustained in this accident, and, in accordance with section 30(12) of the WSIA, if The City received an amount that was greater than the amount expended in pursuing the action and providing the benefits, The City would pay the surplus to the worker. (b) The argument that the Insurance Act removes subrogation rights [30] The Applicants lawyer argues that The City s right, as a Schedule 2 employer, to be subrogated to the worker s right to sue (after the worker elected to receive benefits under the WSIA) has been taken away by section of the Insurance Act 3. Section 267.8(17) of the Insurance Act states: 267.8(17) A person who has made a payment described in subsection (1), (4) or (6) is not subrogated to a right of recovery of the insured against another person in respect of that payment. [31] In support of her argument, the Applicants lawyer referred to the Cohen v. Smith 4 case and to decisions that she argued followed the Cohen v. Smith decision 5. [32] In Cohen v. Smith, the Plaintiffs were workers of a Schedule 2 employer. They were injured in an automobile accident. They elected to receive workers compensation benefits. 3 R.S.O. 1990, c. I.8. 4 Cohen v. Smith (1993), 14 O.R. (3d) 85 (Gen. Div.); (1995), 25 O.R. (3d) 264 (Ont. Div. Ct.). Leave to appeal to the Ontario Court of Appeal dismissed [1996] O.J. No. 255 (Ont. C.A.) 5 Sutor v. Ontario (Workplace Safety and Insurance Board), [2002] O.J. No. 706 (Ont. Sup. Ct.); Lozo v. Parish, [1996] O.J. No (Ont. Gen. Div.); Osborne (Litigation of) v. Bruce (County), [1999] O.J. No. 50 (Ont. Gen. Div.)

6 Page: 6 Decision No. 234/03 Their Schedule 2 employer paid them workers compensation benefits and brought an action against the alleged tortfeasors (the Defendants). The Defendants argued that section 267(4) of the Insurance Act (the predecessor to the current section 267.8(17)) removed the right of a Schedule 2 employer to maintain a subrogated action arising out of an automobile accident against a tortfeasor in respect of benefits paid by that employer to its injured employees under the Workers Compensation Act (the WCA ). [33] Mr. Justice Borins of the Ontario Court (General Division) concluded that the Schedule 2 employer was a person within the meaning of section 267 of the Insurance Act so the provisions of that section of the Insurance Act applied to a Schedule 2 employer. He found that the benefits the Schedule 2 employer had paid the worker in accordance with the WCA were payments that came within section 267 of the Insurance Act (i.e. payments for loss of income). He concluded that there was a conflict between the provisions of the WCA that gave Schedule 2 employers rights of subrogation and the provisions of the Insurance Act that removed subrogation rights of persons who had made certain payments to individuals injured in automobile accidents. He decided that the general power to be subrogated given to Schedule 2 employers by the WCA was not exercisable so as to displace the specific prohibition removing that power contained in section 267(4) and (5) of the Insurance Act. He therefore dismissed the Schedule 2 employer s claim in so far as it was a subrogated claim arising from payments made by the Schedule 2 employer to its injured employees under the WCA. [34] Mr. Justice Borins decision was upheld by the Ontario Divisional Court and leave to appeal the Divisional Court decision was denied by the Ontario Court of Appeal 6. [35] In her Section 31 Statement, the Applicants lawyer stated that the Ontario Superior Court decision in Sutor v. Ontario (Workplace Safety and Insurance Board) had followed the Cohen v. Smith decision. However, the Ontario Superior Court decision in Sutor was overturned by the Court of Appeal shortly after the hearing of this Section 31 Application. [36] The Court of Appeal decision in Sutor v. Workplace Safety and Insurance Board 7 referred to the Cohen v. Smith decisions and addressed certain questions about the relationship between section 10 of the WCA (the predecessor to section 30 of the WSIA) and section 267 of the Insurance Act. It stated: These questions involve the relationship between section 10 of the WCA, 1990, and s.267 of the Insurance Act, R.S.O c.i-8. Section 10(4) of the WCA, 1990 conferred upon the Board a clear and unambiguous right of subrogation... Section 267 [of the Insurance Act]... was intended to reduce the cost of motor vehicle insurance by reducing double recovery of collateral benefits by persons injured in motor vehicle accidents. Workers compensation benefits, however, were not treated as collateral benefits. Instead, the Board s right of subrogation was taken away by s. 267(5). This regime was enacted in 1990 and made retroactive to October 23, supra, footnote 4. 7 Sutor v. Workplace Safety and Insurance Board (2003), 63 O.R. (3d) 257.

7 Page: 7 Decision No. 234/03 There is nothing before the court to indicate that, when the amendments to s.267 of the Insurance Act were passed, any attempt was made to reconcile this situation with s. 10(4) of the WCA In Cohen v. Smith (1993), 14 O.R. (3d) 85 (Gen. Div.), Borins J. reconciled the conflict between s. 267(5) of the Insurance Act and s. 10(4) of the WCA, 1990 as follows, at pp O.R.: In my view, it can be resolved by the application of the maxim generalibus specialia derogant general words in legislation are intended to give way to the particular. In other words, the provisions of the special statute, the Insurance Act, provide an exception to the general statute, the WCA, An appeal from Borins J. to the Divisional Court was dismissed (1995), 25 O.R. (3d) Van Camp J., speaking for the court, adopted the reasoning of Borins J., and in the course of doing so she said, at p. 269 O.R.: The purpose of the [Insurance] Act was to remove the double recovery when collateral benefits were received and to remove the right of subrogation for the person paying the benefits. There is no double recovery under the Workers Compensation Act. If the worker elects to claim benefits under the Act, all his rights in respect of the injury are subrogated. If he elects to sue in tort he receives no benefits under the Act. Counsel agreed that at times when the Board has chosen not to sue, the Board has permitted a worker to re-elect on terms that benefits he has received be repaid... (Emphasis added) 8 [37] The facts of the Sutor case differ from those in this application. Sutor dealt with an agreement made between the Board and the worker when the worker decided that she wanted to re-elect (i.e. to withdraw her claim for workers compensation benefits so she could commence a lawsuit). As part of that agreement, she agreed to reimburse the Board for the benefits it had paid her. However, her lawyers later took the position that section 267(5) of the Insurance Act prevented the Board from recovering from the worker the money the Board had paid her. [38] The Court of Appeal found that the Board s right to require the worker, when she reelected, to reimburse the Board for benefits it had paid her was not affected by the provisions of the Insurance Act that took away the Board s right to recovery from a third party. It decided that the Insurance Act provisions did not change fundamental principles of workers compensation legislation that mean that a worker who is injured in circumstances that give rise to a cause of action chooses to either claim benefits or to sue but not to do both. And, if the worker chooses to receive benefits and then later wants to re-elect (to commence an action instead of receiving workers compensation benefits) the Insurance Act provisions do not alter the Board s right to require reimbursement of benefits it has paid the worker as a condition of allowing the worker to re-elect. [39] In the submissions she made after the hearing, the Applicant s lawyer argued that the Court of Appeal decision in Sutor supports the Applicants position with respect to the effect of a 8 Id. at page

8 Page: 8 Decision No. 234/03 worker s election to receive benefits and, in her submission, it agrees with the Cohen v. Smith analysis of the effect of the Insurance Act provisions. [40] The Respondents lawyer argued that the Court of Appeal decision in Sutor supports a finding that the Tribunal does not have jurisdiction to enforce provisions of the Insurance Act. In this regard, he noted that the Court of appeal quoted, and did not disagree with, the portion of Decision No. 145/95 (Lozo v. Parish) in which the Tribunal said it did not have jurisdiction to enforce the provisions of the Insurance Act so as to limit the right of action of the plaintiff under the WCA. [41] Mr. Belch indicated that the Court of Appeal decision in Sutor had been extremely helpful in assisting Mr. Waddilove to understand his options which include re-election and that Mr. Waddilove had consulted his own counsel following the hearing in order to assess whether or not he would re-elect. Mr. Belch indicated that, if Mr. Waddilove did re-elect, he would have to make an arrangement with the City to repay the benefits that have been paid under the WSIA. [42] But the issue in this Application is not one of re-election rights, or of the effect of any reimbursement agreement with The City. Mr. Waddilove elected to receive benefits. There was no evidence that he has chosen to withdraw that election. [43] In his post-hearing submissions, Mr. Belch characterized the February 4 th hearing of this application as having been restricted to a preliminary issue concerning the Tribunal s jurisdiction to grant the relief requested by the Applicants. He indicated that he understood that if the jurisdictional argument was disposed of in favour of the Applicants position, the application would be scheduled for a hearing on the merits. [44] The Applicants lawyer disagreed with Mr. Belch s statement that the hearing was restricted to a preliminary issue concerning jurisdiction. She noted that although the Tribunal raised the issue of jurisdiction for the first time at the hearing, and the parties made submissions on that jurisdictional issue, she had also filed a Section 31 Statement and set out her arguments and evidence in support of the Order requested at the hearing. She noted that the Respondents had not filed a Section 31 Statement (even though the Tribunal had sent the Respondents lawyer its Practice Direction and indicated that filing a Section 31 Statement was required if he wished to participate in the hearing). She also noted that he had not opposed the Applicants position as set out in their Section 31 Statement at the February 4 th hearing. She submitted that the issue of jurisdiction was raised with respect to the second issue only and it does not concern the first issue so that even if the Tribunal finds that it does not have jurisdiction to make the determination requested by the Applicants regarding subrogation, the Tribunal can still decide whether the Plaintiffs right to commence this action has been taken away. The subrogation issue can be left to the Courts. [45] I agree with the Applicants lawyer s position that the issue of jurisdiction was raised at the February 4 th hearing as part of the hearing on the merits not merely as a preliminary issue that would result in a reconvened hearing on the merits if it is disposed of in the Applicants favour. [46] As indicated by the Applicants lawyer, she filed a Section 31 Statement setting out the facts, arguments and law she relied on in this Application. The Tribunal s Practice Direction on

9 Page: 9 Decision No. 234/03 Applications Concerning the Right to Sue 9 provides that no fact or argument may be presented or relied upon at a hearing by any party, without leave of the Hearing Panel, unless it is contained in the Section 31 Statement or Reply. The lawyer for the Respondents did not file a Section 31 Statement, and did not apply for leave to file material or to make arguments disputing the facts and arguments set out in the Applicants Section 31 Statement at the hearing. To the contrary, at the hearing Mr. Belch confirmed that Mr. Waddilove had elected to claim benefits under the WSIA. The only aspect of the Applicants lawyer s Statement that he questioned dealt with the family member Plaintiffs right of action under the Family Law Act. He indicated that he did not concede that their rights of action under that Act were taken away by the WSIA. [47] Although the Respondents did not dispute other aspects of the Applicants Section 31 Statement, evidence and arguments, there was, in my view, a question as to whether the Tribunal had the jurisdiction to make the order the Applicants requested regarding The City s subrogation rights. Since jurisdiction to make such an order cannot be conferred by the agreement or acquiescence of the parties, I invited both Ms. Goldberg and Mr Belch to make submissions on the jurisdictional issue at the hearing. This did not impact on the first issue to be decided and it was done as part of hearing the merits of the application not as a preliminary matter with a hearing on the merits to follow. (c) The Tribunal s jurisdiction to apply provisions of the Insurance Act [48] Section 31 of the WSIA describes what decisions the Tribunal has jurisdiction to make regarding rights of actions and liability. It states: 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. (2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1). [49] Thus, subsection 31(1)(a) gives the Tribunal the jurisdiction to determine whether, because of this Act the right to commence an action is taken away. Subsection 31(2) states that the Appeals Tribunal has exclusive jurisdiction to make that determination. [50] With respect to the question of whether the Tribunal has jurisdiction to find that the Insurance Act removes a Schedule 2 employer s subrogated right to commence or continue an action such as this action, the Applicants lawyer noted the wording of Board Operational Policy Manual Document No on Third Party Rights of Action 10. It states: 9 44 WSIATR Administrative Minute #2, February 21, 2002, Page 329.

10 Page: 10 Decision No. 234/03 Motor vehicle accidents: If a worker of a Schedule 1 or Schedule 2 employer signs an Election form to receive benefits as a result of a motor vehicle accident that occurred after October 31, 1996, the WSIB and the Schedule 2 employer have no right to bring an action on behalf of the worker... Application date: These guidelines apply to all decisions made on or after January 1, [51] The Applicants lawyer argued that the Tribunal should apply this Operational Policy and find that this Schedule 2 employer has no right to bring an action on behalf of the worker because section 126 (1) of the WSIA requires the Tribunal to apply Board policy. [52] Section 126(1) of the WSIA states: 126.(1) If there is an applicable Board policy with respect to the subject-matter of an appeal, the Appeals Tribunal shall apply it when making its decision. [53] She argued that it makes no sense not to apply this Board policy because the issue of whether the Schedule 2 employer has a right to bring an action on behalf of the worker arises from the election made by a worker under the WSIA and it is the Tribunal that has the exclusive jurisdiction to decide whether the right of action is taken away. [54] In Decision No. 145/95 (Lozo v. Parish), the Tribunal considered the argument that the Tribunal, pursuant to its jurisdiction under section 17 of the WCA (the predecessor section to section 31 of the WSIA), should declare that a right of action was taken away because it involved an indirect exercise of subrogation rights that were removed by section 267 of the Insurance Act. [55] The Panel in Decision No. 145/95 noted the wording of section 17 of the WCA (that limited the Tribunal's jurisdiction to assessing rights in light of Part I of that Act). It referred to a court decision that found that the Board had exceeded its jurisdiction (under predecessor legislation) when it applied other legislation to take away a right of action 11 and contrasted this with decisions in which other legislation was construed as part of determining the question the decision-maker was required to decide under its own legislation. The Decision No. 145/95 Panel concluded that the Tribunal did not have jurisdiction to apply the provisions of the Insurance Act to take away the Plaintiff's right of action. It stated: In the present case, [counsel for the Applicant/Defendant] has asked the Tribunal to make a determination under section 17 [of the Workers Compensation Act] by reference to the provisions of the Ontario Insurance Act. What [counsel for the Applicant/Defendant] would have us do requires the Panel to make a factual determination as to whether the damages sought by Mr. Lozo fall within section 267(1) of the [Insurance] Act. He then asks us to interpret subsection 267(4) of the Insurance Act to determine whether Mr. Lozo's action constitutes, in reality, an exercise of subrogation by his employer. Finally, if we make those determinations, [he] would have us declare that section 267 of the Insurance Act takes precedence over the rights conferred on the parties by the Workers Compensation Act. In response to these arguments, we note, first of all, that sections 10 and 17 of the Workers Compensation Act were amended, effective January 1, 1994, to dovetail with the Insurance Act. The amendments to section 10 apply only in respect of accidents that 11 Meyer et al. v. Ontario (Workers Compensation Board) (1986), 15 O.A.C. 202 (Div. Ct.)

11 Page: 11 Decision No. 234/03 occur on or after a particular amendment to the Insurance Act came into force January 1, The amendment to section 17 does not affect the claimant's right of action. Rather, it operates to allow the insurer to make a section 17 application. In our view, these changes emphasize the intent of the Legislature that the Tribunal's jurisdiction under section 17 be limited to determining whether Part 1 of the Workers Compensation Act bars a party's right of action. That is not to say that the Tribunal, in the course of its adjudication, can refrain from interpreting a statute which is involved in the issues before it. In such circumstances, a panel "must construe" such legislation where it is necessary to do so for the proper exercise of the Tribunal's jurisdiction However, in our view, that obligation must be read in light of the jurisdiction that is granted to us by section 17, a jurisdiction that, in our opinion, is limited to determining whether rights are taken away by Part I of the Workers Compensation Act. Arguably, this Tribunal could be required to interpret and apply the Ontario Insurance Act, notwithstanding the words of section 17, if the Insurance Act had primacy over the Workers Compensation Act as, for example, constitutional, or quasi-constitutional legislation. That is not the case. Similarly, a Court, in the exercise of a broader jurisdiction, may chose to resolve an apparent conflict between the Insurance Act and the Workers Compensation Act by applying the more specific wording of the Insurance Act. That, in fact, was what occurred in the Cohen decision cited by [counsel for the Applicant/Defendant]. However, the fact that the Court saw fit to exercise such jurisdiction does not suggest that this Tribunal can adopt jurisdiction broader than that conferred on us by the Workers Compensation Act. We reiterate, the Tribunal's jurisdiction is limited to determining whether a right of action of any party is taken away by Part I of the Workers Compensation Act. [Counsel for the Applicant/Defendant] asks us to take away or limit a party's right of action because of certain provisions in the Insurance Act. In our view, our jurisdiction simply does not extend that far. Consequently, we conclude that the Tribunal does not have the jurisdiction to limit Mr. Lozo's right of action on the ground that section 267 of the Ontario Insurance Act removes his right of action ISSUE 1: The findings with respect to the worker and family member Plaintiffs [56] There is no dispute that Mr. Luke Waddilove elected to claim benefits under the WSIA. Section 30(2) of the WSIA gave him the right to claim benefits or to commence an action. As indicated by the Court of Appeal in Sutor, he cannot do both. Having elected to claim benefits, his right to bring this action is taken away by the WSIA. [57] Unless given the power to do so by legislation, this Tribunal does not have the jurisdiction to decide whether the rights of action of family members under the Family Law Act are taken away 12. As previously indicated, section 27(2) of the WSIA states that the rights of certain family members to commence an action under section 61 of the Family Law Act are taken away if a worker s right of action is taken away under section 28 or 29 of the WSIA. 12 Meyer v. Waycon International Trucks Ltd. (1988), 38 O.A.C. 398 (Ont. C.A.)

12 Page: 12 Decision No. 234/03 [58] This worker s right of action was not taken away under those sections. Thus, the rights of the family member Plaintiffs to pursue their claims for damages under the Family Law Act are not removed by the provisions of the WSIA. ISSUE 2: The findings with respect to the city s subrogation rights [59] I agree with the reasoning set out in Decision No. 145/95. Accordingly, I find that I do not have the jurisdiction to apply the provisions of the Insurance Act and grant the remedy requested by the Applicants lawyer with respect to The City s subrogation rights. [60] Section 31 of the WSIA describes what matters the Tribunal can determine when a party to an action (or an insurer from whom statutory accident benefits are claimed under the Insurance Act) applies to the Tribunal for a determination that a right to commence an action is taken away. Section 31 gives the Tribunal the power to decide whether, because of this Act that right is taken away. [61] When Mr. Waddilove elected to receive benefits under the Act, Mr. Waddilove s Schedule 2 employer (The City) was, according to the wording of this Act (the WSIA), subrogated to the rights of Mr. Waddilove in respect of the action. [62] The Applicants lawyer may be correct in stating that the Insurance Act takes away The City s right to continue this action. But the WSIA is the statute from which the Tribunal derives its powers. And there is nothing in section 31 or elsewhere in the WSIA that confers on the Tribunal the statutory power to interpret and apply provisions of the Insurance Act that are in conflict with the wording of the section of the WSIA that gives The City subrogation rights in the circumstances of this case. [63] Although the Board has approved an Operational Policy that states that a Schedule 2 employer has no right to bring an action on behalf of a Schedule 2 worker who signs an election form, section 126(1) does not require the Tribunal to apply this to the subject-matter of this application. For the reasons given in Tribunal Decision Nos.1472/99 and 755/02, section 126(1) of the WSIA does not apply to section 31 applications because they are not appeals within the meaning of the WSIA. [64] More importantly, the Operational Policy cannot confer jurisdiction that is not given to the Tribunal by the WSIA itself. In my view, the Board has stated its view of the law in light of the Insurance Act, but this does not give the Tribunal the jurisdiction to find that rights of action that are not taken away by the WSIA have been taken away by the Insurance Act. [65] The Applicants request for an Order pursuant to Section 31(1) of the WSIA that the general right of a Schedule 2 employer to be subrogated to the worker s rights is removed by the Insurance Act is denied.

13 Page: 13 Decision No. 234/03 THE DECISION 1. The right of Mr. Luke Waddilove to commence this action has been taken away by the provisions of the WSIA. 2. The rights of the family member Plaintiffs claiming damages pursuant to the Family Law Act in this action have not been taken away by the provisions of the WSIA. 3. The provisions of the WSIA do not take away The City s subrogated rights to commence, continue, abandon, or settle this action. The Tribunal does not have jurisdiction to decide whether the provisions of the Insurance Act take away subrogation rights The City otherwise has under the WSIA. DATED: August 29, SIGNED: M. Kenny

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