- Damages, contribution or indemnity
- Right to sue (motor vehicle insurance)
- Right to sue (third party claims)
- Right to sue (Schedule 2 employer)
This application was made under section 31 of the WSIA and brought by the third party, the Crown. The applicant sought a declaration stating that there were no damages, contribution or indemnity for any amount caused by it in respect of the action filed by GT.
The application was granted. The third party claim against the Crown, Represented by the Ministry of Transportation of Ontario (MTO) was not barred by the WSIA. Pursuant to subsection 29(4) of the WSIA, no damages, contribution or indemnity for the amount determined under subsection (3) to be caused by the Crown, MTO was recoverable in the action.As the (provincial) Crown was a Schedule 2 employer in Ontario, a worker of a Schedule 2 employer is permitted to pursue an action only with the consent of their employer (see Decision No. 137/04). GT had obtained consent from his Schedule 2 employer to proceed. However, this right of action was limited by section 28 (2) which provides a worker is "not entitled to commence an action against" their Schedule 2 employer and a director, executive officer or worker employed by the worker's Schedule 2 employer. The Vice-Chair agreed with Decision No. 1583/10 that government ministries do not have a separate legal personality as distinct from the Crown. Thus, even though GT worked for the OPP, his ultimate employer was the Crown, and therefore, GT would be unable to sue another Ministry as it would be seen as part of the same Schedule 2 employer (the provincial Crown).It was further argued that the WSIA was inapplicable to the circumstances of this application because the Crown via the MTO subcontracted highway maintenance to CCL. However, the WSIA provides that there is no liability for a Schedule 2 employer "in respect of the accident or disease". In addition, notwithstanding this, there was still no authority under the WSIA to remove the Crown from the third party action filed by the defendants under section 28 (2). Under the WSIA, the Court would still be left to determine the fault or negligence by the Schedule 2 employer. However, there was no recovery of damages (see Decision No. 2078/19). In addition, there was no authority under the WSIA to limit any action against CCL (regardless of the indemnity agreement), a Schedule 1 subcontractor, as there is no authority under the WSIA which limits a Schedule 1 employer's liability in the action filed.