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Appeal Court Revives Class Action against the WSIB

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The Ontario Court of Appeal has revived a proposed class action brought by the appellant, Pietro Castrillo, on behalf of a class of injured workers whom he alleges have been wrongfully denied the full extent of benefits to which they were entitled under the Workplace Safety and Insurance Act, 1997 (the “Act”), by the respondent the Workplace Safety and Insurance Board (“WSIB”).  The class action alleges misfeasance in public office, bad faith, and negligence on the part of the WSIB.

The class action claims that injured workers were “denied the full extent of benefits to which they were entitled” as a result of a “secret policy” implemented by the WSIB, which policy adopted a broader interpretation of the term “pre-existing impairment” to include asymptomatic pre-existing conditions, which had previously been excluded.   The appellant claims that this change in interpretation was illegally made in order to save WSIB money by reducing injured workers’ non-economic loss awards.  The class action seeks declarations that the WSIB “perpetrated a misfeasance in public office” in how it handled the non-economic loss claims of the class, “breached its duty to act in good faith” to the class, and, in the alternative, was negligent.  According to the Toronto Star, the alleged “secret policy” was in force between 2012 and 2014.

Two years ago, the WSIB successfully brought a motion to strike the statement of claim, asserting there was no cause of action, and that the court has no jurisdiction over the subject matter of the class action due to the privative clause in the Act, which gives the WSIB exclusive jurisdiction to examine, hear and decide all matters and questions arising under the Act. The motions judge granted the motion to strike the statement of claim, without leave to amend.  The motions judge held that the WSIB’s decisions to reduce the class members’ non-economic loss benefits were “legal decisions that fall within the four corners of the privative clause”, and were therefore beyond court challenge.

The appellant appealed the motion judge’s ruling to the Court of Appeal.  On appeal, the court considered two issues: 1) were the causes of action properly pleaded, and 2) does the privative clause in the Act prevent the appellant from pursuing the causes of action.  The Court of Appeal held that, except for the allegation of bad faith, the claim was properly pleaded, and the privative clause in the Act does not prevent the appellant from pursuing claims of misfeasance in public office and negligence against the WSIB.  As a result, the class action against the WSIB has been granted permission to proceed.

The decision of Court of Appeal may be accessed here.