Her mother cannot maintain a derivative action as well: court
The Ontario Superior Court has recently ruled that a worker’s right to sue an employer and its worker is barred by the Workplace Safety and Insurance Act (WSIA).
In Delanty v. Hogan, 2023 ONSC 2501, Shannon Hogan was driving her truck when she hit a pedestrian, Jacqueline Delanty. Hogan was an employee of Heritage Lawn Care Inc. at the time of the accident.
Delanty and her mother, Katherine Reilly, sued Hogan and Heritage, claiming that Delanty sustained permanent and serious injuries because of the accident. Hogan and Heritage asserted that the plaintiff's right to sue them was extinguished by s. 28 of the WSIA.
The WSIA denies a worker employed by a "Schedule I" employer under the act the right to sue their employer and its workers over a workplace injury or disease. This rule is part of a workplace insurance scheme under which Ontario workers lose the right to sue their employer for a work-related injury in exchange for entitlement to workers' compensation benefits without having to prove their employer was at fault for the injury. Delanty and Hogan were both "Schedule I" workers and were in the course of employment at the time of the accident.
Workplace Safety and Insurance Appeals Tribunal (WSIAT) ruled that the WSIA barred Delanty's right of action but allowed Reilly's claim. The tribunal found that he had no jurisdiction to bar Reilly's right of action because there was "no evidence of significance" before them that Reilly was a dependent of Delanty. The parties elevated the case to the Ontario Superior Court of Justice.
The court said Delanty could file a claim with the Workplace Safety and Insurance Board within six months of the tribunal's decision. The court further explained that the WSIAT's practice direction on reconsiderations emphasizes the importance of finality in the decision-making process and states that "as a general practice, it is not advisable to reconsider a decision after more than six months has passed since the decision was made" Reilly's request for reconsideration is dated approximately 14 months after WSIAT decision, while Delaney's request for reconsideration is dated almost 34 months after the WSIAT decision. The court ruled that Delanty's right of action remains barred by the WSIAT decision.
As Delanty's mother, Reilly claimed general damages for loss of care, guidance and companionship, and value of services performed pursuant to the provisions of the Family Law Act, special damages including out-of-pocket expenses, and damages for economic losses.
The court said that the Family Law Act creates a cause of action in favour of certain relatives, including a parent, of "a person [who] is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages." The court emphasized that the right of a parent to assert a claim under the Family Law Act depends on the entitlement of the injured or deceased person, if they had not been killed, to maintain an action for damages personally. A derivative claim cannot continue if the decision-maker has dismissed the claim of the primary plaintiff.
The court found that the WSIA took away Delanty's right of action. Since Reilly's claims are derivative of Delanty's right, Reilly was not entitled to maintain a claim under the Family Law Act.
The court further said that even if the WSIAT decision did not bar Delanty's right of action and Reilly was entitled to maintain her claim under the Family Law Act, the court would still dismiss their claims because of delay.
The court said, "The plaintiffs are responsible for moving the action along. They have not done so. I am satisfied that the delay here has been inordinate and has not been adequately explained."
Ultimately, the court dismissed Delanty and Reilly's claims.