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Suing the wrongdoer in a Civil lawsuit or pursuing a WSIB Claim? What’s best for you (Ontario)

Our law firm does NOT handle any WSIB matters. Imagine that…a personal injury law firm refusing work!

But that’s right; our law firm doesn’t touch WSIB work. There are a lot of reasons we don’t practice in this area. Aside from the WSIB being an archaic, overly complicated system; the reality is that it does not adequately compensate injured workers. The awards are rather pitiful, hard for workers to get, and their system of unbiased assessments is “impartial assessors” is a farce. There are a number of economic reasons why our law firm doesn’t do WSIB work, but that’s pretty much all you need to know about WSIB.

You will be hard pressed to find a reputable lawyer in Ontario who does exclusively WSIB work, but there are a handful of them around if you’re lucky enough to find one and have them take on your case at a reasonable rate.

There are times when WSIB and civil tort law intertwine. When this happens, we are there to help people make the right decisions so that their cases get off on the right foot.

For starters, you CANNOT receive bot WSIB benefits and SUE. You can’t have both. You either get one, or the other. This is very important for any accident victim to know.

There are instances where injured workers CANNOT sue. If they’ve been hurt or injured on the job site, there are instances where the injured party MUST pursue a WSIB claim. In such instances, it’s important to find out if your employer is a Schedule 1 or Schedule 2 employer. The difference is that is that you CANNOT sue a Schedule 1 employer; while you can sue a Schedule 2 employer. How do you find out if you’re dealing with a Schedule 1 or a Schedule 2 employer? That’s easy. All it takes is a call to the WSIB at 1-800-387-0750. Just ask the person who picks up the phone. It’s an easy search for their staff to make.

Banks, Veterinarians, Law Firms and some other employers are NOT require to have any form of WSIB coverage. So, it’s open season to sue these employers for their wrong doing.

At the end of the day, it’s important to keep in mind that WSIB acts as a shield for employers. They pay in to an insurance plan known as WSIB, and it’s there to protect them in the event of a worker getting injured.

There are however instances where you can sue. Take the example of a car accident while in the course of employment. This happens to delivery people, taxi drivers, truck drivers, or people who are just running an errand for work and need a vehicle to do so and they’ve been involved in a terrible accident.

In those instances, the worker has the option of pursuing a WSIB claim or pursuing an accident benefit claim against the car insurer, along with a third party tort claim against the at fault driver.

I can tell you that if the car accident is NOT the accident victim’s fault, in 99% of cases, the benefits and compensation available through accident benefits and a civil tort claim is more generous than those benefits offered through WSIB.

In these cases, it’s important to notify WSIB right away that you’re intending on pursuing a claim through car insurance and NOT through the WSIB system. Your case worker will send the injured party an Election Form. These Election Forms are no longer available online. I believe they used to be, but no longer. I don’t know why. Perhaps it’s some form of conspiracy because every other form under the moon is available on the WSIB website except for arguably the most useful form for seriously injured accident victims looking to SUE; instead of claiming WSIB benefits.

Once you get the form, it’s important to read it carefully with a lawyer. I’ve read the wording of the form and it’s TRICKY. There are 3 or 4 options from which to chose. If you chose the wrong option, you’ve got a big problem. The wording contained in the election form is as clear as mud. They could not have made it any more difficult to understand. I think a team of 100 or so government lawyers were consulted with in the drafting of this 1-2 page form; which; for all intents and purposes ought to be a very simple for to prepare and to complete. It ought to read:

1. By Signing here; I opt OUT of WSIB benefits and elect to pursue a third party tort claim against the alleged wrongdoer. I hereby undertake to repay WSIB any benefits which they may have paid to me out of the proceeds of this third party claim.


2. By Signing here: I with to OPT IN to WSIB and elect to pursue a WSIB claim. This means that I cannot sue the at fault party in tort/a civil proceedingdelly

The form doesn’t say anything remotely that simple. Rather, the wording is convoluted, full of legalese, and needs a lawyer’s keen eye to examine. What’s even worse, is that sending a letter stating that you “opt out of WSIB and wish to pursue a tort claim” is sometimes not enough for the WSIB, or for the accident benefit insurer. They want to see this election form signed and submitted. But the wording of the form is so onerous against accident victims, it’s hard in certain cases to have clients sign it.

In cases where liability (fault) is an issue; it might be a good idea to remain within the confines of the WSIB system. While the benefits and the potential compensation may not be as generous than with a civil tort claim; we have to keep in mind that you can’t win a civil tort claim unless you can prove that the other party was at fault. So, if you can’t prove fault, you won’t have much of a tort claim. If you don’t have a tort claim, then WSIB benefits are better than no claim at all.

The timing of the election is also important. Don’t wait around a year or so, and collect WSIB benefits for a year +, and then expect it to be easy to opt out. The insurer’s lawyer for the at fault party will likely bring a application to the WSIAT to stay/bar your civil claim. That means they will seek a Tribunal’s permission to have your civil claim quashed, before it even has a chance to get started. Waiting to opt out of WSIB is never a good idea.

What’s important is that if you ever have the option between pursuing a WSIB claim, vs. suing another party, vs. making a car insurance claim: DON’T SIGN ANYTHING. Talk to a lawyer. Preferably this amazing lawyer right here and his team of experts.

I would like to send a shout out to a young lawyer I met earlier this week in London who is also a personal injury lawyer. He told me that he’s a big fan of the Toronto Injury Lawyer Blog, and it’s one of his “go to” sources for quick tips and easy to understand information in this field of the law. A very kind compliment from a fine young man.

I would also like to comment on LeBron James’ performance thus far in the NBA Finals. Jaw dropped to the floor. Mind blown. His performance thus far has been anything short of spectacular. We are witnessing NBA history. The talent which LeBron is playing with on the Cavs is the equivalent of my Monday night Men’s League Basketball Team, which isn’t saying very much. He’s simply unstoppable and I hope he gets the job done for his team. Yes: that is a picture of Matthew Dellavedova; our new sweetheart. What a guy!

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