- Executive officers
- Right to sue (statutory accident benefits)
This right to sue application concerned an action for damages claimed to have arisen as a result of a February 26, 2015 motor vehicle accident. The respondent submitted that it was not covered under the insurance plan at the time of the accident, and was therefore not statute barred from continuing the civil action.
The applicant's application was dismissed. The respondent's right of action against the applicant was not taken away.The respondent was an executive officer at the time of the accident who did not have optional insurance. Section 12 of the WSIA requires consent from the executive officer in order to deem an executive officer a worker. This is consistent with subsection 12(5) of the WSIA. The respondent had coverage for workers of his corporation and presumed the coverage extended to him. However, the respondent did not apply for optional coverage and did not provide the WSIB with consent to obtain optional coverage. There is no language in section 12 that would allow the deeming of an executive officer as a worker in the absence of applying for and obtaining a declaration from the Board. There was no such declaration in this case. The Vice-Chair noted that the declaration included on the Optional Insurance Request/Change form requires the owner, partner, executive officer or independent operator to acknowledge that they are not automatically entitled to benefits under the plan, which is consistent with subsection 11(2) of the WSIA. By signing the Optional Insurance Request/Change form they must acknowledge that they are doing so voluntarily and are giving up their right to sue Schedule 1 workers and employers for damages that arise from workplace accidents. The respondent testified that although he believed that he had coverage under the plan, he was not aware that he would have been giving up his right to sue for damages arising from a workplace accident. The policy also suggests that individuals seeking to apply for optional insurance obtain independent legal advice.The Vice-Chair accepted that the respondent believed that he had coverage, but was not persuaded that he provided informed consent in accordance with subsection 12(7) of the WSIA and consistent with the requirements under OPM Document No. 12-03-03, "Who Can Obtain Optional Insurance?" Although the Vice-Chair was not required to follow Board policy in this application, she had regard for Tribunal case law which notes the significance of Board policy in applications under section 31. Further, section 126 of the WSIA requires the Tribunal to apply Board policy. The Vice-Chair was not persuaded that an application for benefits under the plan would be successful in the absence of satisfying the requirements set out in the policy. The Vice-Chair concluded that the respondent was not a worker within the meaning of the WSIA and was not entitled to benefits under the plan. The respondent was therefore not statute barred from pursuing the civil action.