Workplace Safety and Insurance Act

• Author: Netta Romano
• Pages: 425-481

425

Workplace Safety and

Insurance Act

12

Learning Outcomes

After completing this chapter, you will be able to:

• Identify the key features of the Workplace Safety and

Insurance Act, 1997.

• Identify who is eligible for benefits under the Act.

• Describe the benefits available to an eligible worker.

• Describe the practice and procedure of the Workplace

Safety and Insurance Board.

• Describe the practice and procedure of the Workplace

Safety and Insurance Appeals Tribunal.

• Identify offences and penalties established in the

WSIA.

Introduction ........................ 426

Worker Coverage .................... 427

Workplace Safety and Insurance Board ... 443

Workplace Safety and Insurance

AppealsTribunal ................. 449

Offences and Penalties ............... 452

Further Reading ..................... 453

Related Websites .................... 453

Key Terms .......................... 453

Review Questions ................... 453

Discussion Questions ................. 453

Appendix 12.1 WSIB Worker’s

Exposure Incident Form (PEIR) ...... 455

Appendix 12.2 WSIB Worker’s Report

of Injury/Disease (Form 6) .......... 458

Appendix 12.3 WSIB Direction of

Authorization—Claims ............ 462

Appendix 12.4 WSIB Intent to

Object Form ..................... 464

Appendix 12.5 WSIB Appeal Readiness

Form—Worker/Dependant ......... 469

Appendix 12.6 WSIAT Notice of

Appeal for Workers ............... 474

Appendix 12.7 WSIAT Worker

Authorization to Represent ........ 478

Appendix 12.8 WSIAT Readiness Form .... 479

Appendix 12.9 WSIAT Confirmation

of Appeal for Workers ............ 480

© 2022 Emond Montgomery Publications. All Rights Reserved.

426 EMPLOYMENT LAW FOR PARALEGALS

Introduction

The Workplace Safety and Insurance Act, 1997, 1 like the Occupational Health and Safety

Act, 2 relates to workplace health and safety in Ontario. The purposes of the WSIA, as

set out in section 1, are:

1. to promote health and safety in workplaces,

2. to facilitate the return to work and recovery of workers who sustain person-

al injury arising out of and in the course of employment or who suffer from

an occupational disease,

3. to facilitate the re-entry into the labour market of workers and spouses of

deceased workers, and

4. to provide compensation and other benets to workers and to the survivors

of deceased workers.

Compensation is the last in the list of purposes—a change from previous versions

of the legislation, which focused more directly on compensation. The principles that

underlie the system, however, are the same as they were when it was devised more

than 100 years ago. It is an insurance system nanced by employers, which guarantees

monetary compensation and other supports to workers and, in certain circumstances,

to their dependents for work-related injuries or diseases, regardless of who was at

fault. In exchange for a no-fault system, workers have given up their right to sue

employers for work-related injuries or diseases.

1 SO 1997, c 16, ScheduleA [WSIA].

2 RSO 1990, c O.1 [OHSA].

Before There Was a Workers’ Compensation System…

The workers’ compensation system was implemented in Ontario in 1914 to address

the social and economic injustice that resulted from the treatment of injured workers

under existing law.

Common law compensation for

“inju red” workers was based on the law of

negligence. To receive compensation for an occupational injury, the worker would

bring a negligence suit against the employer in court. However, an employer had

several powerful defences to an employee’s allegation of negligence.

The first of these was the defence of contributory negligence: if a court found

that a worker had contributed in any way to their own injury, the employer was

not liable. The second defence was co-worker negligence: if an employer could

show that an injury was caused by the negligence of a co-worker, the employer

was not liable. Finally, there was the defence of voluntary assumption of risk:

if the work was inherently dangerous, an employer could argue that the worker

voluntarily assumed the risk of injury by taking the job. If this defence succeeded,

the employer was not liable.

Because the law was biased in favour of employers (and because lawsuits were

expensive and time-consuming), most workers who were injured on the job received

FYI

negligence

an act or omission that

involves no intention to

cause harm but that a

reasonable person would

anticipate might cause harm

contributory negligence

a common law defence in an

action arising from negligence

in which it is asserted tha t

the plaintiff’s own neg ligence

directly caused or contributed

to the injuries suffered

voluntary assumption

of risk

a common law defence in

which it is asserted tha t

the plaintiff voluntar ily

assumed the risk of injury

© 2022 Emond Montgomery Publications. All Rights Reserved.

CHAPTER 12 WORKPLACE SAFETY AND I NSURANCE ACT 427

Worker Coverage

Mandatory Versus Optional Coverage for

DefinedWorkers

Similar to the OHSA, the WSIA moves away from the term “employee” and instead

refers to a “worker,” which is dened in section 2(1) as “a person who has entered into

or is employed under a contract of service or apprenticeship and includes” (among

others) learners and students. Section 11(1) further identies those to whom the insur-

ance plan applies as “every worker who is employed by a Schedule 1 employer or a

Schedule 2 employer.” These workers are “insured workers” for purposes of the WSIA.

The industries that fall under Schedules 1 and 2 are set out in General, O Reg 175/98 and

include most industries in the province, including manufacturing, construction, hospitals,

hotels, restaurants, and theatres. Some industries are not compulsorily covered; however,

many low-risk industries apply for coverage because it protects them from lawsuits for

work-related injuries at a relatively low cost.

Certain workers—such as independent operators, sole proprietors, and executive of-

cers—who are not automatically covered may opt in to the system under section 12 of the

WSIA. The Workplace Safety and Insurance Board (WSIB) administers the claim, and the

employers pay dollar for dollar all benets paid to or on behalf of the injured worker.

There is no federal workers’ compensation board; workers’ compensation benets for

federal public sector employees are administered by the workers’ compensation board in

the province in which they work.

Work Relatedness

The WSIA insures workers against injuries or diseases that relate to the workplace in

accordance with section 13, which states that:

1. a worker (dened in s 2(1))

2. who sustains a personal injury by accident

3. arising out of and in the course of their employment

is entitled to benefits under the insurance plan.

“Accident” includes “a wilful and intentional act, not being the act of the worker,

a chance event occasioned by a physical or natural cause, and disablement arising

out of and in the course of employment” (s 2(1) and Policy 15-02-01, Definition of an

Accident 3).

3 In “Operational Poli cy Manual,” Document No 15-02-01 (12 October 20 04), online: Workplace Safety and Insur ance

Board <https://www.wsib.ca/en/operational-policy-manual/denition-accident>.

no compensation, and many were left destitute if their injury rendered them unable

to work. At the same time, employers occasionally faced ruinous damage awards. A

royal commission was established to examine the situation, and in 1914, Ontario’s

workers’ compensation system was established.

© 2022 Emond Montgomery Publications. All Rights Reserved.