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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
11/22/2016
R. McCutcheon

  • Damages, contribution or indemnity
  • 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 the third party claim, the school board claimed for a declaration that the municipality defend and indemnify it regarding the claim pursuant to terms of the lease, and a general declaration that it was entitled to contribution or indemnity from the municipality for any damages or claims which the worker may recover from the school board, save and except for any fault or negligence under the Negligence Act.
The municipality was entitled to an order under s. 29 limiting its liability for the portion of the loss or damage that was caused by its own fault or negligence.
The more contentious issue was whether the school board's third party claim, which expressly excludes contribution or indemnity due to the negligence of the municipality, was barred by the WSIA.
The determination of a party's right to sue turns on the substance of the cause of action, rather than the form. Tribunal decisions have recognized that there may be causes of action that are inter-related to the facts of a workplace insurance claim but which are not actions arising from the parties' fault or negligence with respect to the accident. For example, decisions have found that actions for wrongful dismissal or negligent misstatement may proceed.
In this case, the lease was a contractual agreement between the municipality and the school board. It was entered into prior to, and independent of, the worker's workplace accident. The Vice-Chair found that the third party claim clearly seeks remedies arising from the lease that have allegedly crystallized due to the workplace injury and related action, but which are separate from the accident. The third party claim for a declaration to defend and indemnify it is a cause of action independent of the workplace accident; the claim is not integral to the consequences of the accident nor is it inextricably linked to the alleged injuries suffered by the worker. Rather, it arises from the terms of the lease.
The Vice-Chair concluded that the third party claim against the municipality was not barred by the WSIA. Section 29 will ensure that the municipality will not be held liable for any loss or damage attributed to its own fault or negligence.