Let’s say that you get involved in a car accident during the course of your employment. What do you do? Who can you sue? Is it a WSIB claim? Is it a car accident case? Or is it both?
This issue comes up a lot in the practice of a personal injury lawyer, who does a lot of car accident work.
Let’s make something very clear. You cannot both claim WSIB benefits and sue, and claim accident benefits at the same time.
You you only pick one route. That decision, is called an “election“.
The Plaintiff can either “elect” to receive WSIB benefits and go the WSIB route.
Or the Plaintiff can opt out of WSIB, and “elect” to receive accident benefits, and go the suing route.
The Plaintiff cannot go both routes.
Sometimes, a Plaintiff does not have a choice and must go through the WSIB route. Here is an example of such a case:
The Plaintiff is driving his/her company car enroute to a jobsite. The Plaintiff gets involved in a terrible car accident. The car accident is not the Plaintiff’s fault, and the Plaintiff wants to sue the at fault driver for his/her damages and pain and suffering. But, as it turns out, the at fault driver was also driving a company car for a job. Both parties were deemed to be Schedule 1 employees who were in the course of their employment at the time of the car accident. Even though the parties worked for two completely different and unrelated employers, the fact that both were in the course of their employment at the time of the car accident is significant and presents a barrier to personal injury litigation. The reason is that the law says that a Schedule 1 employee in the course of his/her employment cannot sue another Schedule 1 employee who was also in the course of his/her employment (even for a car accident case!). As a result, even though the Plaintiff may want to go the personal injury litigation route, s/he cannot do so. WSIB acts as a shield protecting the employers (and the at fault driver) from any litigation. The injured accident victim has no choice but to pursue WSIB benefits. The injured accident victim can try to advance a claim for damages against the at fault driver; but the case will in all likelihood get kicked out of Court on Application to the WSIB.