- Damages, contribution or indemnity
- Right to sue
This right to sue application was with respect to a civil action arising from an accident on October 25, 2016.
The applicant, the defendant in the civil action, sought an order under section 31 that he was not liable in the civil action for any damages "that are in any way attributable" to workplace motor vehicle accidents the plaintiff was involved in that occurred in April 2013 and May 2016 and for which she had received workers' compensation entitlement. The plaintiff was employed by a Schedule 2 employer under the WSIA at the time of an accident on October 25, 2016.The plaintiff made no claim for workers' compensation benefits in respect of the accident that occurred on October 25, 2016. It was not disputed that the plaintiff was not in the course of her employment at the time of the accident and therefore had no entitlement to workers' compensation benefits as a result of her October 25, 2016 accident.There are no provisions of the WSIA that place any restrictions on the ability of the courts to determine the extent of a plaintiff's losses that flow from an accident or to apportion that loss amongst the individuals the courts held responsible for that loss. To the extent, if any, that the plaintiff had pre-existing conditions and impairments at the time of the October 25, 2016 accident the Courts would need to determine in light of those impairments what damages, if any, flowed from the accident that occurred on October 25, 2016. This was equally true whether any pre-existing impairments were caused by workplace accidents for which workers' compensation benefits may be payable or had other causes.Section 29 restricts a plaintiff/worker's ability to recover damages to only that portion of the accident related damages that are found by a court to have been caused by the fault or negligence of persons who do not have protection against being sued by the worker. In this application, the applicant was not attempting to restrict the plaintiff's entitlement to damages to exclude that portion of the damages caused by other potential tortfeasors, protected under the Act, who may have been at fault in the accident that occurred on October 25, 2016. Rather the applicant was seeking a declaration under section 29 of the Act that the plaintiff's entitlement to damages not include the portion of any impairment that pre-existed the accident on October 25, 2016 that was caused by those persons who were protected from civil suit by the WSIA in the accidents that occurred prior to October 25, 2016.The Vice-Chair found that to interpret section 29 such as to grant the declaration sought by the applicant: was not necessary to prevent the defendant from being liable for damages that did not result from the accident of October 25, 2016; would require the Tribunal to make unauthorized decisions that are within the court's jurisdiction to determine in respect of what damages the plaintiff experienced as a result of the accident of October 25, 2016; would be inconsistent with the intended purpose of the provisions of section 29 of the WSIA; would potentially expose the Appeals Tribunal to the requirement to become involved in a large number of section 31 proceedings involving actions for personal injury in which plaintiffs have no potential entitlement to benefits under the WSIA .The application was dismissed.