Category: Rule 21 Motion

The plaintiff was injured in a single-vehicle accident in British Columbia. At the time, he was employed by IC Asphalt, which was based in Alberta and had operations in BC and Alberta. Following the accident, the plaintiff applied for worker’s compensation in Alberta. He was approved for benefits and received them on an ongoing basis. Notwithstanding the approval of workers’ compensation, the plaintiff commenced an action for damages in Ontario on the basis that he was ordinarily resident in Ontario, as was the defendant. The defendant brought a Rule 21 motion to strike, arguing that the plaintiff’s right to pursue a civil action was extinguished by his election to receive worker’s compensation. Before the defendant’s motion was brought, two decisions had been rendered by the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT): (1) that WSIAT had jurisdiction to hear the defendant’s “right to sue” application; and (2) that the Ontario Workplace Safety and Insurance Act did not bar the plaintiff’s right to sue because he was not a “worker” under Ontario law.  Justice Whitten granted the defendant’s Rule 21 motion holding that the plaintiff could not proceed with his action. He reasoned that the principles of comity and the existence of the Interjurisdictional Agreement on Workers’ Compensation between provinces favoured a decision respecting the “fabric of workers’ comp benefits” regimes across the country, and barring a tort claim when a valid workers’ comp claim has been made. Further, it would be an abuse of process to allow the Ontario tort action to continue once the plaintiff had made an unequivocal election to receive workers’ compensation in Alberta.