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Fridays With Rogers Partners

Our newest articling, Angeline Bellehumeur, discussed a very interesting court decision at our weekly meeting this morning. The issue in Thomson v. Watson, 2020 ONSC 4409, was whether a worker who is involved in an accident outside of Ontario and elects to receive workers’ compensation benefits outside of Ontario, can proceed with a tort action in Ontario, if the worker is not covered under Ontario’s workers’ compensation legislation.

The plaintiff was employed as a truck driver. He was involved in a single vehicle accident in British Columbia while in the course of his employment. The employer paid premiums to the Workers’ Compensation Board of Alberta.

An election was made by the plaintiff to receive Alberta workers’ compensation benefits. As part of the election, he agreed to waive and forego any rights to compensation in any other jurisdiction.

The plaintiff commenced a tort action in Ontario against his employer alleging, among other things, that the truck he was operating was not properly maintained. Both parties conceded that Ontario was a convenient forum for the lawsuit. Both parties were ordinarily resident in Ontario.

The matter proceeded to a hearing before the Ontario Workplace Safety Insurance & Appeals Tribunal. The Tribunal determined that the plaintiff’s right to sue was not taken away because, although the plaintiff and the defendant were residents of Ontario, they were based and working in Alberta.

The matter then proceeded to the Ontario Superior Court of Justice on a question of law. The court held that the plaintiff was not permitted to sue his employer.

Justice Whitten went over the historic trade-off between employers and employees, in which employers must contribute to a mandatory insurance scheme and employees give up their right to sue their employers.

The provision of workers’ compensation benefits is country-wide. It exists for the protection of workers and facilitates access to a ready source of benefits. In addition, employers receive certainty of exposure.

Justice Whitten applied the principle of comity. Comity is defined as “courtesy amongst political entities, as nations, states, or courts of different jurisdictions involving a specially mutual recognitions of legislative, executive, and judicial acts”.

Justice Whitten referred to the Supreme Court of Canada’s decision in Morguard Investments Ltd. v. De Savoie [1990] 3 S.C.R. 1077, wherein it was stated that “it seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province”.

Based on this, Justice Whitten held that the plaintiff should not be permitted to avoid the historic trade-off between employees and employers by commencing an action in a different jurisdiction.

In addition, Justice Whitten held that the plaintiff’s action was an abuse of process. The plaintiff made an unequivocal election to receive workers’ compensation benefits in Alberta. Once this election was made, the employer would have thought there was finality to any obligation relative to the plaintiff’s injuries.

Allowing the tort action to proceed would undermine the election and would represent an attempt at re-litigating a matter covered by insurance and would open up the possibility of the plaintiff receiving double recovery.

In summary, based on this decision, if a person elects to receive workers’ compensation benefits outside of Ontario as a result of an accident, he or she cannot sue his or her employer (or any other entity protected by workers’ compensation legislation) in any jurisdiction, including in Ontario.

Even if the Ontario Workplace Safety & Insurance Appeals Tribunal finds that the right to sue is not taken away, the court still has jurisdiction to determine whether the claim is barred.

It is also possible that, regardless of an election made by a worker to receive workers’ compensation benefits, if the worker is entitled to receive workers’ compensation benefits in any jurisdiction in Canada, the worker is barred from suing anywhere in Canada an entity protected by workers’ compensation legislation.