A recent “right to sue” reconsideration decision from the Workplace Safety and Insurance Appeals Tribunal(Decision No. 626/19R2, 2021 ONWSIAT 180) held that an “executive officer”, who does not opt into coverage of the “insurance plan” under the Workplace Safety Insurance Act (“WSIA”), was still protected from civil liability against a “worker” under section 28(1) of the WSIA.
The case involved the applicant, Mr. Steingart, who was the sole director, secretary and treasurer of R Ltd., a company in the business of tool and equipment rental and repair. On September 25, 2012, after driving to work in his own vehicle, Mr. Steingart drove a truck bearing the R. Ltd logo, and pulling a trailer owned by R. Ltd. to a customer’s premises to pick up an excavator which had been rented to the customer. During this trip, however, Mr. Steingart became incapacitated and drove his truck into the wall of a retail store. The respondent, Ms. Davies, who was working in the retail store, sustained injuries as a result of the accident.
At all material times, Ms. Davies was a “worker”, within the meaning of the WSIA, she was in the course of her employment and she was employed by a Schedule 1 Employer. Also, it was uncontested that Mr. Steingart was an “executive officer” of R. Ltd which was a Schedule 1 Employer.
Ms. Davies commenced a civil action against Mr. Steingart and other defendants as a result of her injuries. In response, Mr. Steingart commenced a section 31 application, seeking a determination that Ms. Davies’ right to sue Mr. Steingart was taken away by section 28(1) of the WSIA.
In the initial decision (Decision No. 626/19, dated May 15, 2019), Vice Chair Nairn held that Mr. Steingart was not afforded protection under the WSIA as an “executive officer” of R. Ltd because he did not have optional coverage at the time of the accident:
I agree with, and adopt, the reasoning of the Vice-Chair in Decision No. 1794/12. Sections 11 and 12 of the WSIA provide that executive officers are not subject to mandatory coverage, and would be provided the protections of the insurance plan only upon being granted optional coverage. That did not take place in this case. It has been accepted in this application that Mr. Steingart was an executive officer of R. Ltd., and there is no reason to question that status. Like the Vice-Chair in Decision No. 1794/12, I do not interpret sections 11 and 12 of the WSIA to contemplate that an executive officer’s status might change, depending on what type of work he or she is doing on a particular day. The consequences which flow from Mr. Steingart being accepted as an executive officer should be the same in all contexts. In my view, at the time of the accident on September 25, 2012, Mr. Steingart was an executive officer and not a worker. As such, the respondent’s right of action is not taken away.
Mr. Steingart appealed the decision for reconsideration where Vice Chair Crystal found that Vice Chair Nairn erred in law. Specifically, Vice Chair Crystal looked at section 28(1) of the WSIA which clearly states that “executive officers” are protected from civil actions commenced by a “worker” of a Schedule 1 employer:
28(1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
1. Any Schedule 1 employer.
2. A director, executive officer or worker employed by any Schedule 1 employer.
Vice Chair Crystal then looked at whether section 11 of the WSIA vitiated an “executive officer’s” protection under section 28(1).
Section 11 and 11(2) states that the “insurance plan”, under the WSIA, applies to every “worker” of a Schedule 1 and Schedule 2 employer, but it does not apply to a “worker” who is an “executive officer” of a corporation.
Section 12(3) of the WSIA states that an “executive officer” can opt into coverage under the “insurance plan” if they apply to the Workplace Safety and Insurance Board. An “executive officer” who has opted into coverage is considered a “deemed worker” to whom the “insurance plan” applies.
Vice Chair Nairn interpreted sections 11(2) and 12(3) to mean that Mr. Steingart was not afforded protection from Ms. Davies’ civil action under section 28(1) of the WSIA because Mr. Steingart was an “executive officer” who did not have optional coverage under section 12(3) at the time of the accident.
Conversely, Vice Chair Crystal held that this interpretation was in error and section 11(2) did not preclude “executive officers” from protection under section 28(1):
Section 11(2) states that “Subject to sections 12 and 12.2, the insurance plan does not apply to workers who are executive officers of a corporation.” I interpret the section to mean that, except where optional coverage is obtained by an EO, or in the special circumstances related to the construction industry, an EO who performs work for the corporation does not obtain the coverage provided by the insurance plan. I do not interpret section 11(2) to mean that an EO who does not obtain optional coverage forfeits, or otherwise does not have the protection from civil action provided by section 28(1). If that were the case, I would expect section 28(1), the section which provides the protection, to refer to such a requirement. Section 28(1) does not refer to optional coverage, and there is no basis upon which to impute the requirement of obtaining optional coverage in order for a protected party to maintain the protection from civil action provided by section 28(1).
Coverage is optional. The protections from civil action included in section 28(1) are not optional and are not related to the election by an EO to obtain, or not to obtain, optional coverage.
As such, Vice Chair Crystal held that Ms. Davies’ civil action “was taken away by the Act” given that Mr. Steingart was afforded protection under section 28(1) as an “executive officer” of a Schedule 1 Employer.
This reconsideration decision is important because it provided a much-needed discourse on the interplay of sections 11(2) and 12(3) and how they fit or do not fit within the context of “right to sue” applications under section 28(1).
It appears that Vice Chair Crystal relied heavily on the fact that the exception under section 11(2) excludes “executive officers” from “coverage” under the “insurance plan” and not the WSIA as whole. Vice Chair Crystal explained that “coverage” under the “insurance plan” meant “the ability to make a claim to the Board in the case of an accident”. Accordingly, “executive officers” could only make a claim to the Board for workplace injuries if they opted into the “insurance plan” coverage as “deemed workers” under section 12. Here, Vice Chair Crystal is stating that even if an “executive officer” could not make an injury claim under the “insurance plan” because they did not have “coverage” they still were protected from civil liability claims commenced by “workers” under section 28(1). This protection is bestowed upon “executive officers” regardless of whether they have opted into the “insurance plan” or not.
Further explanation from Vice Chair Crystal in this regard would have been welcomed because he does not go into detail about how and why sections 11(2) and 12(3) are not related to section 28(1). Overall, his decision intuitively makes senses when we examine the scheme of the WSIA in greater detail.
For instance, section 28(1) concerns the rights of “workers” to commence a civil action while covered under the “insurance plan” and not the rights of “executive officers” under the “insurance plan”. Framed in this way, it is easier to understand Vice Chair Crystal’s reasoning and how sections 11(2) and 12(3), which concern coverage of an “executive officer” under the “insurance plan”, do not concern a “worker’s” right to sue an “executive officer” of a Schedule 1 Employer. Sections 11(2) and 12(3) are mutually exclusive of section 28(1). There is nothing in the WSIA which states that a “worker” has a right to sue an “executive officer” who has not opted into coverage under section 12. As Vice Chair Crystal rightly pointed out, if section 11(2) was intended to exclude “executive officers” from civil liability protection there would have been language to this effect under section 28(1).
See Decision No. 626/19R2, 2021 ONWSIAT 180 (CanLII)
Mikel (pronounced “My-Cle” or “Michael”) is a trapeze artist trapped in the body of an insurance defence and coverage lawyer. His name might suggest that he is Catalan Spanish, but no one in Mikel’s family is Spanish. Or Catalan. Although he does like cats.