Does WSIB apply to every truck accident claim?

by Preszler Injury Lawyers

Deciding whether to sue after a trucking accident caused by an at-fault party is an important consideration. Truck drivers can only sue in specific circumstances; it is usually not clear-cut and is highly fact-dependent.

Section 2 of the Workplace Safety and Insurance Act, 1997 (WSIA) states that to access benefits through the Workplace Safety and Insurance Board (WSIB), the accident must have happened during employment. The issue that often arises is whether the truck driver was actually in the course of their employment at the time of the accident. Making this determination is often not straightforward. If you are not in the course of your employment at the time of an accident, you can sue the at-fault party.

If you are in the course of your employment, you may still be able to sue, but again, this determination is fact-specific. The WSIA applies to certain industries listed in the Schedules to the Act. Schedule 1 employers include construction, mining and transportation (trucking), among others. Schedule 2 employers include the provincial government, municipalities, postal services, railway and telephone companies, among others. Workers for Schedule 1 employers cannot sue any other worker who is also employed by a Schedule 1 employer provided that both workers were in the course of their employment. Similar rules apply to Schedule 2 workers. However, a Schedule 1 worker is not barred from suing a Schedule 2 worker even if both were in the course of their employment.

In the scenario where you are a truck driver in the course of your employment who is struck by an at-fault vehicle which belongs to neither Schedule 1 nor 2, you generally have the option of seeking compensation through WSIB or through a civil action against the at-fault driver.

If you are a truck driver in the course of your employment at the time of the accident, you must carefully consider whether you will be deemed a “worker” or an “independent operator” by the WSIB. If you are in the course of your employment and are deemed an “independent operator,” you may be able to sue. Independent operators are generally required to obtain clearance certificates from WSIB confirming their independent operator status.

The WSIB, history and the right to sue

The WSIB in Ontario oversees workplace safety and provides insurance coverage for workers, including those in the transportation industry. Truck drivers are considered workers in the transportation industry along with courier and taxi services. Owner-operators, who own or lease their vehicles, may fall into a separate category and can be considered “independent operators.”

The WSIB has the authority to determine who is a worker or independent operator under the Workplace Safety and Insurance Act, 1997 (WSIA). The distinction is important as claimants who are deemed independent operators will have the right to sue while those deemed workers may not and must proceed through the WSIB system.

The right to sue restriction is “the result of the historic bargain responsible for the creation of the workers’ compensation system in Ontario whereby workers gave up their rights to initiate civil actions against their employers for work-related injuries in return for the right to entitlement to workers’ compensation benefits.”

If you bring a legal action after a truck accident where there are one or more parties working at the time of the accident, an insurer or their defense lawyer may bring a Right to Sue Application under Chapter 16, Schedule A of the Workplace Safety and Insurance Act, 1997 (WSIA).

The Workplace Safety and Insurance Appeals Tribunal (WSIAT) determines the outcomes of these applications. If you are found to be an independent operator as opposed to a worker, you will be allowed to continue your civil action. Similarly, if the place, time, and activity giving rise to the truck accident are not sufficiently connected with the employment itself, the truck driver will be able to continue their civil action.

It is not possible to proceed with a WSIB claim and a civil action; it’s one or the other. If the option to proceed with a WSIB claim or a civil action exists, the options must be carefully considered.

Worker vs. independent operator

Case Study – Decision No. 1112/22

The recent Decision No. 1112/22 [2024 ONWSIAT 362] involved a determination of worker vs. independent operator where a right to sue was removed. This was an unfavourable outcome for the family members of Mr. Betseha (Mr. B), a truck driver, who unfortunately died in a motor vehicle accident on June 9, 2019. The result meant his family could not pursue a civil claim for damages as a result of his death.

At the time of the accident, Mr. B was driving a truck owned by National Auto Transit (National) whose business involved picking up and delivering vehicles. The truck Mr. B was driving developed mechanical issues, which resulted in Mr. B calling his contact at National, and Mr. Hipoloto (Mr. H) attended to assist. When Mr. H arrived, he accidentally struck Mr. B with his vehicle and killed him instantly.

Regarding the facts, Mr. B was essentially subject to a typical employer-employee relationship. He was compensated at a fixed rate established by National. The jobs he completed were determined by the company. He did not own or pay for the truck’s use, maintenance, or gas. When dealing with customers, he did not maintain a separate identity from that of his employer. He had no opportunity for profit or risk of loss and could only make more money by working more hours.

However, Mr. B had incorporated his business. Counsel for Mr. B argued that because he entered into an agreement with National through his own personal corporation, the parties intended to create an independent operator relationship rather than an employment relationship. Mr. B’s employer had even testified on one occasion that they considered him an independent operator. Though these issues were considered relevant, they were not considered determinative of his legal status as a worker or independent operator.

Mr. B was found by the Tribunal to be a worker employed by National at the time of the accident. Both Mr. B and Mr. H were attempting to deal with a broken truck at the time of the accident, and therefore, they were both found to be in the course of their employment. In coming to its decision, the Tribunal referred to the WSIB’s guidelines on the trucking industry (set out below). Even on the most generous interpretation, Mr. B would have only met two of the five criteria set out in the guidelines. The case turned on the fact that the truck Mr. B was driving was owned by National; he did not have to pay for its use, maintenance, or gas, and he also did not have the ability to use the equipment owned by National to enter into contracts on his own behalf. The fact that the truck was National’s responsibility was of primary significance in determining that Mr. B was a worker at the time of the accident.

Trucking industry questionnaire

The WSIB has developed a questionnaire to be used as a tool to communicate specifically to truck drivers and companies utilizing those drivers how the WSIB will assess the driver’s status.

Part 1 of the Trucking Industry Questionnaire asks: “What services does the owner-operator provide for the principal?”

Part 2 then lists five criteria that must all be present for an “owner-operator” to be considered an independent operator. The key portions of Part 2 of the questionnaire state:

  1. a) The owner-operator pays for the truck and a majority of the equipment or other related property (such as payments for gas, maintenance of the truck, license, and storage) and is not required to finance the truck and equipment/related property through company sources.
  2. b) The owner-operator has the right to exercise a choice in selecting and operating the vehicle and has market mobility in that they have discretion to enter into contracts of any duration to transport goods and maximize profits.
  3. c) The principal does not have the right to control where or from whom products/services are purchased by the owner-operator (however, this does not preclude the owner-operator from exercising their option to purchase products/services from the company). Also, the principal does not have the right to exercise control over the owner-operator’s operations except to the extent that loads are offered, and destinations and delivery schedules are established by the principal’s contract with the shipper and except for the joint responsibilities set out in federal and provincial licensing and related statutes.
  4. d) The principal and the owner-operator state that the relationship is one of a contract for service and not that of employer and employee.
  5. e) The principal does not issue a Canada Revenue Agency T4, T4A, or make statutory deductions for E.I. and/or C.P.P.

The person completing the document is asked to sign to “certify” that the owner-operator’s relationship with their principal contains all five of the listed features.

Though this specific questionnaire is not formal WSIB policy, there is now a “line of authority in Tribunal case law that these industry-specific questionnaires applicable to the trucking and courier industries should be given significant weight when determining worker versus independent operator status.”

The takeaway

The questionnaire above is a useful tool to consider your legal status as a truck driver when it comes to considering legal action after a truck accident. If all five criteria (a-e) apply to your work in trucking, you may be deemed an independent operator and have the right to sue.

If you or someone you care about has been injured while on the job in the trucking industry, it may be important to consider whether they are entitled to compensation outside of the WSIA. Please call Preszler Injury Lawyers for a free consultation.