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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 2285 15 I
10/30/2015
R. McCutcheon

  • Damages, contribution or indemnity
  • Jurisdiction, Tribunal (right to sue)
  • Right to sue (action for breach of contract)
  • Right to sue (third party claims)

The worker was employed by a municipality (a Schedule 1 employer) as a teachers' aide in a daycare facility operated by the municipality on premises within a school. The premises were rented from the school board (a Schedule 2 employer). The worker was injured when she slipped and fell in July 2010. The worker filed a claim for workplace insurance benefits, which was accepted by the Board.
The Board brought a subrogated action in the name of the worker against the school board, alleging the school board was the owner and occupier of the premises and was responsible for maintenance. The school board brought a third party claim against the municipality, claiming that the municipality was required to indemnify the school board based on the terms of the lease. The third party brought an application under s. 31 of the WSIA.
In this decision, the Vice-Chair dealt with the preliminary matter of the issue raised by the Board of the Tribunal's jurisdiction to consider the application. The Board submitted that the third party claim was based in contract and did not contain allegations of fault or negligence.
The Vice-Chair found that the Tribunal had jurisdiction to hear the application, which fell within the scope of the exclusive jurisdiction conferred upon the Tribunal through s. 31, which includes the determination of whether an amount that a person may be liable to pay in an action is limited by the WSIA. It is well established in Tribunal decisions that an "action" includes a third party claim and that the Tribunal has jurisdiction to consider a right to sue application arising from a third party claim.
The Vice-Chair distinguished between jurisdiction to consider an application and determination of an application on the merits. A number of decisions referred to by the parties may be relevant to the merits of the application but do not justify declining jurisdiction. The parties opposing a s. 31 application may certainly advance competing arguments on the merits that a right of action should be taken away because the action is based only on contract. It is also important to appreciate the distinction between a finding that the action is removed and an order limiting a party's liability to contribute to or indemnify another party who is liable to pay damages in the action.
The Vice-Chair concluded that the Tribunal has jurisdiction to consider the application. The hearing will reconvene on the merits.