WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 955/09

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 955/09 BEFORE: J. Josefo: Vice-Chair HEARING: May 13, 2009 at Ottawa Oral DATE OF DECISION: June 16, 2009 NEUTRAL CITATION: 2009 ONWSIAT 1450 APPLICATION FOR ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the applicant(s): For the respondent(s): Interpreter: Mr. G. Bougadis, Barrister and Solicitor Mr. B. Moscato, Barrister and Solicitor N/A Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 955/09 REASONS (i) The Right to Sue application (a) Parties and issues [1] The applicants McIntyre and Super Service Rubber Stamp and Sign Ltd. are defendants in Ontario Superior Court of Justice civil action Court File No. 00/2041. The plaintiffs in that civil action, and respondents in this within proceeding, are Rory Corcoran, his spouse Susan Mitchell, and their children. The applicants at the Tribunal are represented by Mr. G. Bougadis while the respondents are represented by Mr. B. Moscato. [2] The issue I must determine is whether the respondents can continue the civil action, or whether the applicants will prevail in removing the respondents right to sue. (b) Facts [3] The facts that underpin this application arise out of a motor vehicle accident ( MVA ) which occurred on January 22, On that occasion the respondent Corcoran was driving his employer s vehicle in the course of his employment, which involved making deliveries. There is no question that the respondent was a worker of a schedule 1 employer, and was in the course of employment, when the MVA occurred. [4] The applicant, however, while driving a company vehicle, was clearly not in the course of employment at the time of the accident. [5] That the respondent was in the course of employment and the applicant was not when the MVA occurred allowed the respondent under section 30 of the WSIA to either elect to claim WSIB benefits for injuries sustained in the MVA, or to commence a civil action. The respondent initially elected to claim WSIB benefits and, in fact, received benefits from the WSIB. Subsequently, however, the respondent purported to withdraw his election. The respondent also commenced the civil action which the applicants defended. (c) The narrow issue to be decided in this within application [6] This matter is styled as a right to sue application, and indeed is brought under s. 31 of WSIA. Yet the underlying issue I must decide is whether the respondent, the plaintiff in the civil action, could elect to claim WSIB benefits and then be permitted to after-the-fact withdraw his election and continue the civil action. The applicant takes the position that the respondent cannot continue his civil action. [7] In the initial s. 31 application statement dated March 8, 2007, Mr. Bougadis submitted in part as follows: The respondent sustained these injuries during the course of his employment and had elected to claim for compensation benefits. The respondent is therefore barred by s. 30 of the.act from commencing a civil action as against the applicants and/or any third party as a result of the accident.. The applicant seek a finding by this Tribunal that the respondent is precluded from commencing a civil action as a result of injuries he sustained in the accident.on the basis that the respondent has chosen to proceed

3 Page: 2 Decision No. 955/09 under the WSIB regime pursuant to s. 30(2) of the Act and, accordingly, he is statute barred from any action, civil or otherwise, as a result. [8] Mr. Bougadis submitted an amended application under cover of his letter dated May 1, Despite the late filing of this submission, for oral reasons given at the hearing, which in the main emphasized the acknowledged lack of prejudice on the part of the respondents, I agreed to admit Mr. Bougadis amended applicant s s.31 statement. [9] The gist of the arguments made by the applicant in that amended statement and in oral submissions before me was that the civil action commenced by the respondent was void ab initio as the action was commenced before the Board authorized the respondent s re-election and withdrawal from the WSIB compensation scheme for injuries sustained in the MVA. Mr. Bougadis also submitted that the interpretation of s. 30(10)of the Act does not, as the previous Act purportedly did, authorize the WSIB to allow the worker to re-elect and carry on a civil action that, it was emphasized by Mr. Bougadis, was commenced without good authority and was thus absolutely void from the outset. [10] At the hearing Mr. Bougadis advanced a third reason why I should grant the application when he purported to orally further amend his application. Mr. Bougadis submitted that the WSIB, not being aware of the Accident Benefits ( AB ) claim, was not in a proper position to consider the respondent s request to re-elect and pursue a tort claim instead of continue with his WSIB claim. I took under reserve this new theory, only advanced at the hearing before me. [11] Throughout his thorough submissions, Mr. Bougadis emphasized the lack of procedural fairness that occurred when Counsel for the respondent communicated with the Senior Legal Counsel of the Board in the course of pursuing the worker s re-election, without notice to Mr. Bougadis. It was submitted that Mr. Bougadis clients, the applicants in this within proceeding and the defendants in the civil action, had an interest in any such decision made by the Board. Accordingly, it was submitted that the defendants ought to have been given notice and an opportunity to participate in that process. [12] Mr. Moscato essentially agreed with the issues as framed, although of course took a very different position when interpreting the facts on the merits of the matter than did Mr. Bougadis. (ii) Discussion and conclusions [13] The somewhat unusual facts in this matter are a subset of and different from the more typical right to sue case, which arises when, typically, an MVA occurs and it must be determined whether the plaintiff in the resulting tort action was a worker and in the course of employment when the MVA occurred. That determination will usually lead to the outcome of the matter. A worker in the course of employment involved in a collision with, for example, another schedule 1 worker, is not able to sue but must claim WSIB benefits. Conversely, a party injured in an MVA who is not a worker in the course of employment at the relevant time may usually continue a civil action, which would not then be statute barred.

4 Page: 3 Decision No. 955/09 [14] The facts in this case involve the respondent who clearly was a worker and in the course of employment at the time of the MVA. The alleged tort-feaser, however, the applicant in this proceeding, was not in the course of employment at the time of the accident. That set of facts allows the respondent the choice to claim WSIB benefits or to commence a tort action under s.30 of the Act. [15] It is convenient to reproduce s.30 of the Act as follows: (a) (b) (c) (a) (b) 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. (4) The election must be made within three months after the accident occurs or, if the accident results in death, within three months after the date of death. (5) The Board may permit the election to be made within a longer period if, in the opinion of the Board, it is just to do so. (6) If an election is not made or if notice of election is not given, the worker or survivor shall be deemed, in the absence of evidence to the contrary, to have elected not to receive benefits under the insurance plan. (7) If the worker or survivor is less than 18 years of age, his or her parent or guardian or the Children s Lawyer may make the election on his or her behalf. (8) If a worker is mentally incapable of making the election or is unconscious as a result of the injury, the worker s guardian or attorney may make the election on behalf of the worker; if there is no guardian or attorney, the worker s spouse may make the election on behalf of the worker; or if there is no guardian or attorney and if no election is made within 60 days after the date of the injury, the Public Guardian and Trustee shall make the election on behalf of the worker. (9) If a survivor is mentally incapable of making the election, the survivor s guardian or attorney may make the election on behalf of the survivor; or if there is no guardian or attorney and if no election is made within 60 days after the death of the worker, the Public Guardian and Trustee shall make the election on behalf of the survivor. (10) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed by a Schedule 1 employer or the deceased worker was so employed, the Board is subrogated to the rights of the worker or survivor in respect of the action. The Board is solely entitled to determine whether or not to commence, continue or abandon the action and whether to settle it and on what terms. (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.

5 Page: 4 Decision No. 955/09 (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. (13) Future payments to the worker or survivor under the insurance plan shall be reduced to the extent of the surplus paid to him or her. (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 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 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. (15) For the purposes of determining the amount of benefits a worker or survivor is entitled to under subsection (14), the amount of a judgment in an action or the amount of a settlement shall be calculated as including the amount of any benefits that have been or will be received by the worker or survivor from any other source if those benefits, (a) have reduced the amount for which the defendant is liable to the worker or survivor in the action; or (b) would have been payable by the defendant but for an immunity granted to the defendant under any law. [16] In this matter it is not disputed that the respondent elected to obtain WSIB benefits. It was emphasized in the written materials and at the hearing that the respondent was compelled to do so by his AB Insurer. Indeed, the March 5, 1999 correspondence from the AB Insurer s Senior Claims Representative to the respondent would seem to confirm that. Less than one year later, however, on February 2, 2000 the respondents former Legal Counsel, Mr. L. Ferro, purportedly wrote to the Board on behalf of his client seeking to re-elect. A subsequent letter from Mr. Ferro was sent to the Board on May 12, [17] Mr. Bougadis strenuously submitted that it is doubtful that Mr. Ferro ever actually sent either letter. There were a number of reasons offered to support these submissions, given Mr. Bougadis long history with Mr. Ferro until the respondent changed lawyers and retained Mr. Moscato and his firm. Yet there was no specific evidence led upon which I could rely that would allow me to conclude on the balance of probabilities that the letters of Mr. Ferro were never actually sent. I find that on the balance of probabilities this correspondence was likely sent to and received by the Board. [18] In addition to the two letters referenced in Exhibit 3, which is the respondent s s.31 statement, the February 2, 2000, and May 12, 2000 correspondence are also found in Addendum No. 1, Exhibit No. 1. These documents contain parts of the Board file which pertains to the respondent, some of which material was also in the Case Record. Also in Addendum No. 1 is found correspondence from the Board dated August 16, 2000 to the AB Insurer which addresses the assignment of benefits which indicates that the claimant has decided to sue. It would

6 Page: 5 Decision No. 955/09 appear that this assignment was received by the Board in March I also note the handwritten number 870 on the Addendum No. 1 copy of the February 2, 2000 letter, while the May 12, 2000 letter had the notation 965 thereon. The August 16, 2000 correspondence from the Board in the Addendum file has the notation 787. [19] Moreover, Mr. Ferro corresponded further to the Board on January 11, 2001 and January 17, 2003 wherein he repeatedly indicated that the respondent had been induced to make a claim to the Board by the car insurance company and that the respondent really wanted to pursue his civil claim. The Case Record also contains the February 20, 2001 correspondence from Mr. Ferro to the Board on the same subject. [20] While Mr. Bougadis expressed much consternation and concern with actions taken by and the conduct of Mr. Ferro, I need not address this issue in my decision. Moreover, if Mr. Bougadis has such concerns, then he knows the forum before which such concerns can be pursued. For my purposes, overall, it appears to me more likely than not that the Board had received the various requests of the respondent to re-elect, but the Board did not act upon them. Indeed, the November 2, 2006 letter of the Board s Senior Legal Counsel, Adele Belanger, acknowledges that the request to re-elect had been made earlier than Counsel Belanger states in the November 2, 2006 correspondence as follows: This request was first communicated to the WSIB by letter of February 2, 2000 by Lou Ferro [the respondents] previous lawyer. [The respondent] was no longer receiving benefits when the letter was received and the adjudicator did not refer the issue to Legal Services. [21] In other words, rightly or wrongly, the adjudicator was of the view that there was no concern any longer and thus no need to refer the request to its Legal Department for review and decision. As unfortunate as that may be, that is what I find most likely occurred when I consider all of the evidence before me, which evidence includes multiple copies of the letters in the Board generated materials, leaving aside the copies in the respondents s. 31 statement. If I only had the copies of the correspondence contained in the respondent s. 31 statement, then the speculation advanced by Mr. Bougadis, that Mr. Ferro prepared but never sent the letters, might be a theory worth considering, and could cause me some concern. But, considering that the correspondence appears in numerous places, again, for reasons expressed I am of the view that relatively early on the Board was made aware that the respondent wished to re-elect and pursue a civil tort action, instead of continue with the WSIB benefits claim. [22] Referring again to the November 2, 2006 decision of Board Counsel Ms. Belanger, it is clear that Board Counsel made a decision to allow the worker to withdraw his WSIB claim in order to pursue his civil action on certain terms and conditions. [23] Mr. Bougadis took great issue with this decision. As discussed above, he submitted that since the claim had been commenced prior to permission of the Board being received, the claim was void from the outset and could not be brought to life subsequently by a decision made long after the fact. He also submitted that the Board Counsel was in error on a number of facts and did not have before her the AB file or any information pertaining to the AB file. Finally, it was strenuously submitted that the lack of opportunity of the defendants in the civil action, the applicants in this within proceeding, which proceeding was in progress at the time the

7 Page: 6 Decision No. 955/09 respondents approached Board Counsel, was a major flaw. Mr. Bougadis submitted that a possible remedy would be to have the matter remitted to the Board s Counsel to revisit the issue once the Board s Counsel was in full possession of all the relevant facts. [24] These submissions lead to the question of standing of the applicant in this proceeding as well as at the Board on the issue of the respondent s election. At the hearing I reserved on the objection of the respondents to Mr. Bougadis having standing and being able to pursue this application as I wanted Mr. Bougadis to have a full opportunity to make his arguments. Indeed, his thorough submissions were appreciated and have allowed me, along with the helpful responding submissions of Mr. Moscato, to come to my conclusions. [25] In my view, it has been settled since the 1919 Supreme Court of Canada decision of Toronto Railway Company V. Hutton (1919) 59 SCR 413 that the issue of the respondent having the right of election to either claim compensation benefits or to sue in tort is one between the injured party and the Board. The tortfeasor has no standing or interest in whatever agreement the Board and the injured worker who has the right of election make. While certainly the tortfeasor, or alleged tortfeasor, is interested in the result, the decision as to elect or not elect remains that of the injured worker. Similarly, the decision to allow the injured worker to change that election subsequently is one which is exercised by the Board as between these two parties. The defendant to the action, the alleged tortfeasor, is not involved in that decision making. [26] In the Toronto Railway Decision of the Supreme Court of Canada, Mr. Justice Mignault stated in part as follows: It is clear that the election to claim compensation under the Act does not discharge the wrongdoer...as to the notice of the election to claim compensation under the Act,.the election is without any effect quoad the defendant, for notice must be given to the employer or to the Board and never to the wrongdoer. [27] Mr. Justice Duff in that decision stated trenchantly as follows: It follows, of course, that the transactions between the Board and the plaintiff are transactions to which for the purposes of this litigation the appellant company is a stranger, and that they do not afford any answer to the respondents claim in the action. [28] Various Tribunal decisions have also concluded in the more modern era that the election to claim WSIB benefits, and the subsequent withdrawal of such an election, is a matter between the worker and the WSIB, akin to a contract between these parties. The alleged tortfeasor has no role to play, and no right to intervene, in such circumstances. To that end Tribunal Decision No. 414/99 stated in part as follows: There are some rare circumstances in which a worker can choose to either accept workers compensation benefits or bring an action. To assist it in carrying out its responsibilities in those circumstances, the Workers Compensation Board has developed certain policies, procedures and contracts. The Election to Claim Workers Compensation Benefits and the Withdrawal of Election form are contracts between the worker and Board. The first form tells the Board that it will be paying the worker benefits for an accident in which the worker, may in fact, have an action against a third party. When a worker signs this form, she or he acknowledges that the Election to Claim Workers Compensation Benefits must be revoked before an action may be brought.

8 Page: 7 Decision No. 955/09 The Withdrawal of Claim for Workers Compensation Benefits is also a contract between the worker and the Board. This contract states that the worker is withdrawing his claim so that she or he may commence a lawsuit. Among the reasons for these contracts are: (a) ensuring that a worker is not compensated twice, in two different forums, for the same injury; and (b) ensuring that the Board is reimbursed for any funds it may expend in a worker s claim. I have noted several times, that the contracts are between the worker and the Board. The defendants in any lawsuit the worker may choose to bring are strangers to the contracts between the worker and the Board. They may not as of right question decisions made by the worker or the Board pursuant to these contracts. To summarize, I find that the interactions between the worker and the Board with respect to the worker s Election to Claim Workers Compensation Benefits and the Withdrawal of Election form are of no concern to the Applicants. The right to sue is the worker s, it was not extinguished by his claiming workers compensation benefits, and the Board has stated that the worker may continue with the third party action. [29] Decision No. 1782/04I also addressed this issue. That decision came to the following conclusion on facts very similar to this matter before me, wherein the applicants sought standing to address the election and subsequent withdrawal of the election by the respondent to claim WSIB benefits. To that end Tribunal Decision No. 1782/04I addressed the standing of the defendant in a civil action, and a purported applicant at a Tribunal hearing, as follows: The present circumstances are analogous to the facts addressed in Decision Nos. 1168/96 and 1902/01. The defendants do not have a true interest in the arrangements between the Board and plaintiff regarding this action. The cause of action lies with the plaintiff, and the defendants do not have standing to make arguments in this case. Decision No. 94/90I noted that there may be circumstances where it may be appropriate to grant intervenor status. The Panel is not persuaded that the defendants participation is necessary or appropriate in the context of this appeal. This is not a novel or unusual case which would warrant such participation. [30] This denial of standing of the applicant to participate in this question, with which conclusion I agree, would end the analysis of the Board s decision made November 2, 2006 to allow the worker to re-elect. Yet, given that so much time was expended at the hearing in addressing this issue, a few more comments will be made. [31] In my view, the decision of the Board was a proper exercise of the Board s discretion by an employee empowered by Board policy to make such decisions. Board counsel Ms. Belanger specifically stated that the Board would allow the respondent in this application to withdraw his WSIB claim and pursue a civil action for damages only so long as the Board was immediately reimbursed for the full amount of benefits owing. The correspondence noted that this was a final decision of the Legal Services Branch of the WSIB. As is acknowledged, Counsel for the respondent provided payment to the Board, and the Board on December 28, 2006 confirmed that the WSIB claim was withdrawn. Thus, the respondent was, pursuant to the Board, free to pursue the civil action.

9 Page: 8 Decision No. 955/09 [32] While Mr. Bougadis submitted that the Board did not have the authority to make this decision, following the above-referenced Supreme Court of Canada decision and various Tribunal decisions, I disagree. I further must disagree with the applicant that the Legal Counsel of the Board who addressed the matter did so without authority. Document No of the Board s Operational Policy Manual provides under the heading withdrawal of election the following: If the worker signs an election form and receives benefits from the WSIB, there is no statutory right to withdraw the claim and proceed with a right of action. The WSIB exercises its discretion to permit the withdrawal of an election. Request to withdraw election should be made in writing to Legal Services. [33] In this case the request of the respondent was forwarded to the Board s Legal Branch. The Senior Legal Counsel ultimately made a decision. She was empowered under the Board s policy to do so. While I am not bound to apply Board policy in an application as contrasted with an appeal, there must be a valid reason to not apply Board policy. In the present circumstances, I cannot conceive of any valid reason that would leave me to discount this policy. [34] The above excerpt from the Policy Document also is an answer to Mr. Bougadis submission that there was no particular form used for the withdrawal of the election, nor any kind of hearing or other process. I have already stated my finding that the applicant in this within proceeding, the defendant in the civil action, has no standing or interest in the decision that is solely between the claimant and the Board as to the election and any subsequent withdrawal of election. Thus, all the arguments of procedural fairness made so eloquently by Mr. Bougadis do not apply. Quite simply, it is not the business of the alleged tortfeasor whether the worker elects to obtain benefits or subsequently withdraws that election, and the alleged tortfeasor has no input into that decision or process. The matter is one that is between the Board and the worker, injured party. [35] It is also clear that in these circumstances, contrary to what the applicant suggested, a simple letter setting out reasons is sufficient, especially given that the decision-making in such circumstances is only of interest to the worker. [36] Tribunal Decision No. 137/04, relied upon by Mr. Bougadis, I find is of no assistance to him. That is because that case involves a schedule 2 employer and thus the statutory regime is different. As Decision No. 137/04 indicates, the Board takes the position that a schedule 2 employer has the right to consent or withhold consent for a worker who wishes to withdraw a claim for WSIB benefits. Of course, that is because a schedule 2 employer has a very direct pecuniary interest in the outcome. [37] Decision No. 137/04 addresses the jurisdiction of the Tribunal in cases where s. 26 to 30 of the Act are involved. Decision No. 137/04 states in that regard as follows: Mr. Parry, the accident employer s Counsel, made a brief submission in which he requested clarification from the Tribunal regarding the Tribunal s jurisdiction in this matter. Mr. Parry questioned whether paragraph 123(2)2 removed the Tribunal s jurisdiction over the issues addressed in this application. The provision in question stipulates that the Tribunal s jurisdiction does not include the jurisdiction to: Hear and decide an appeal from decisions made under

10 Page: 9 Decision No. 955/09 2. sections (rights of action). I note, however, that the present case does not involve a decision made by the Board under sections 26 to 30 that is the subject of appeal. Rather, the issues in this application arise out of the Tribunal s original jurisdiction under section 31 of the WSIA which includes the authority to determine whether a right of action is either taken away, or limited by, the WSIA. Consequently, in my view, the Tribunal has jurisdiction over the application brought in the present case. [38] While on superficial review, it is attractive to conclude that, as Mr. Bougadis urged, standing should not be denied, and that all parties should have the right to participate in decisions that are of concern to them, the denial of standing of the tortfeasor in such matters makes good sense. The decision of the Board to allow the withdrawal of election to claim WSIB benefits does not, after all, determine ultimately the issues of liability or fault that are outstanding in any civil action. The decision to allow the respondent in this case to continue his civil action is, similarly, an interlocutory decision. [39] The Tribunal does not decide the degree of fault of the parties or make any findings with respect to the existing civil action. All the Tribunal does is determine that the litigation, in appropriate cases, can or can not continue. Similarly, all the Board does in this type of situation, as it did in the matter before me, is authorize the worker to continue the civil action that was commenced on certain terms that protect the Board s interest. But again, the Senior Counsel of the Board makes no determination of or finding upon the merits of the issues that exist in the civil action. [40] As Mr. Bougadis conceded, his client enjoys all of its remedies under the Rules of Civil Procedure, and may pursue various steps in a civil action including a motion for summary judgement or other such steps on the way to a trial. That is where, ultimately, if the matter does not end before, the trier of fact will make conclusions as to fault and liability. [41] Thus, even though the defendant-applicant is denied standing in this within application, this hardly can be said to have denied the defendant in the civil action her day in court. Rather, the defendant continues to have all remedies available to defend the tort action as she and her legal counsel deem fit. I thus cannot conclude that it is procedurally unjust to follow the prior Tribunal decisions and, indeed, to adhere to the decision of the Supreme Court of Canada which, in any event is binding upon me. I accordingly conclude that the defendant/ applicant in the within proceeding has no standing. [42] What of the argument that the statement of claim was void ab initio because the Board only ruled over six years later that the defendant could pursue the civil tort action? In my view it is well settled that the Board is subrogated in the rights of the plaintiff worker. Section 30(10) discussed above solely provides, and also, in my view, empowers the Board absolutely with the control of the action.

11 Page: 10 Decision No. 955/09 [43] In the aforementioned Supreme Court of Canada decision, Mr. Justice Anglin noted that an absence of authorization of an action by the Board is not a defence to the plaintiff s action, but the learned Justice proposed that an action that is carried on without the sanction of the Board should be stayed until such an authorization has been obtained and filed with the court in order to prevent possible abuse of its process. [44] The other Justices did not agree with that approach and considered the plaintiff s action to still be a viable one, albeit one in which the Board was subrogated. But even Mr. Justice Anglin did not conclude that the claim commenced without authorization was void ab initio, or even was voidable. Chief Justice Davies in the Toronto Railway decision, indeed specifically stated as follows: If the plaintiff had obtained the express authority of the Board to bring the action, or a ratification subsequently of his having brought it, that, in the view that I take of the legal affect of an election under the Workman s Compensation Act, would have been a sufficient answer..because I am clearly of the opinion that such an election cannot and does not discharge a wrong doer whose negligence has caused damage to another, or afford any defence to such action as the plaintiffs [emphasis added]. [45] In my view, that holding of the Supreme Court is clear authority for the after-the-fact ratification of a claim commenced before the Board specifically authorized it. Thus, an action that is otherwise properly commenced (within the applicable time limits for example) can be subsequently authorized by the Board and such a claim is not considered void ab initio. [46] I also note that s. 30(5) of the Act referenced above allows the Board to permit the election of the worker to be made beyond the three month time limit after the accident as set out in s. 30(4) of the Act. It is also my view that s. 30(10) of the Act makes it clear that the Board s broad powers when it is subrogated to the rights of a worker regarding an action that the worker may bring in the circumstances are as contemplated by s. 30. An election made under s. 30(10) in my view does not cancel or extinguish a right of action. In my view, the right to sue continues whether or not a worker has elected to take benefits. See, in that regard Tribunal Decision No. 414/99 which states in part as follows: To summarize, I find that the interactions between the worker and the Board with respect to the worker s Election to Claim Workers Compensation Benefits and the Withdrawal of Election form are of no concern to the Applicants. The right to sue is the worker s, it was not extinguished by his claiming workers compensation benefits, and the Board has stated that the worker may continue with the third party action. [emphasis added] [47] Tribunal Decision No. 1782/04I similarly indicated that at all times the cause of action remains the plaintiff s cause of action, but it being subrogated to the Board means the Board had the right to control the action. I agree that the action was not extinguished when the respondent in this case elected to claim WSIB benefits. Rather, at that time, the action was subrogated to the Board until, some years later, the Board on terms that were agreed to between it and the respondent, allowed the respondent to once again become what has been in a number of cases referred to at the dominus litis.

12 Page: 11 Decision No. 955/09 [48] That the civil action in this case has, as both Counsel confirmed, been stayed by the Courts is not determinative of this within application. I was informed that the Court stayed the civil action only pending the Tribunal s disposition of the within application. As the within application has now been addressed, the parties are at liberty to bring this decision to the attention of the Court if and as each Counsel wishes. [49] Accordingly, despite the able submissions of Mr. Bougadis, I conclude that the application must fail. For all these reasons, the respondent in this matter retains the right to sue pursuant to the withdrawal of election on terms proposed by the Board on November 2, 2006 and subsequently fulfilled by the respondent.

13 Page: 12 Decision No. 955/09 DISPOSITION [50] For reasons above the application is denied. DATED: June 16, 2009 SIGNED: J. Josefo

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