Election for WSIB benefits under GECA doesn't extinguish plaintiff's civil cause of action

This article was produced in partnership with McLeish Orlando LLP.

Mallory Hendry of Canadian Lawyer sat down with Nick Todorovic, partner at McLeish Orlando, to discuss a recent case that’s helpful for federal workers going forward.

A recent decision affirms that a plaintiff’s right to a civil cause of action is not extinguished by their initial election for Workplace Safety and Insurance Board benefits under the Government Employees Compensation Act.

In 2016, a Canada Post mail carrier was bitten by a dog while in the course of her employment and was diagnosed with a left wrist contusion by an ER physician. Though the wound seemed innocuous, the plaintiff had a pre-existing ulnar nerve injury which was reinjured without her knowing. Thinking the injury was relatively minor, she elected to receive WSIB benefits. Unfortunately, the pain persisted and a referral to a plastic surgeon confirmed the dog bite had reinjured the ulnar nerve. The plaintiff underwent five surgeries as a result. Realizing her injury was far more serious than she initially thought, the plaintiff retained McLeish Orlando LLP to begin a lawsuit. The action was defended and it was not until after pretrial took place years later that the defendants argued for the first time that the plaintiff’s action was statute barred by section 9(2) of the GECA.

While the facts sound straightforward, “there’s some nuance here,” says Nick Todorovic, partner at McLeish Orlando. As a Canada Post employee, the plaintiff’s entitlement to compensation was governed by the GECA which is specific legislation applying to federal employees that outlines how they can either claim benefits under provincial WISB regimes or sue a negligent third party for damages. Section 9 of the GECA provides the framework for when a federal employee is injured and what happens when they elect to receive benefits or elect to sue a third party. However, in 2014, the GECA was amended to include section 9(2) which states, “the election made by the employee or their dependants is final.” The legislature added this section with the aim of reducing administrative costs to the government. No other amendments were made to section 9 after the amendment.

The addition of section 9(2) became critical in Jung v. Riddell when, after years of litigation the defendants amended their defence to add a defence through section 9(2) of the GECA and then brought a motion for summary judgment to dismiss the claim in entirety. This was the first time section 9(2) of the GECA would be argued.

“The defendants’ argument was that the plaintiff made the election for WSIB benefits and therefore could not sue in tort, so her lawsuit was dead in the water,” Todorovic says, adding arguing against a term like “an election is final” is risky given the strong language inserted by the legislature but he developed a strategy to fight it. 

In his factum, Todorovic laid out the chronology of events from when the plaintiff was bit up until the summary judgment motion was brought by the defendants. His first angle was there was no way his client would have known she had a serious injury at the time of the election, and it’s not fair to hold someone to that high of a standard when making an election under the GECA. As soon as the plaintiff was told her injury was more serious, she retained legal counsel within a month. There was a clear line of intention by the plaintiff from start to finish. However, the defendants strategy was changed at the eleventh hour to include the defence under section 9(2) of the GECA.

The defence took the statutory interpretation angle: the legislation in section 9(2) says an election is final, it is unequivocal, that is what the legislature determined would be adequate. In response, Todorovic’s second angle was that the other subparagraphs in section 9 of the GECA were not amened to be in line with section 9(2).

“My argument was that the wording in section 9(2) was not enough to entirely extinguish the rights of an injured person to sue a third party upon election of benefits and if that was the case, the legislature needed to amend the remaining subparagraphs of section 9 to do that. It cannot be what the act is meant for because it completely extinguishes a person’s rights to compensation. The GECA was enacted to help employees when they are injured, not take away benefits or rights of action”

Todorovic leaned on the reasoning in McRae v. Canada (Attorney General), a case that was decided before the amendment to the GECA. In Jung, the defence’s interpretation was that if you made an election for benefits, you have assigned all your rights to sue but “they are confusing subrogation with assignment,” Todorovic argued, noting McRae makes a distinction between the two. McRae delineated the two terms, stating that the purpose of subrogation is to prevent double recovery by the injured individual.

“If you elect benefits, with this finality type of paragraph you would then be essentially extinguishing all your rights to sue in tort against the tortfeasor – and that’s not written in the act at all.”

Ultimately the judge in Jung sided with Todorovic, finding that if section 9(2) is applied in such a strict manner without considering the remaining subparagraphs in section 9, it leaves the plaintiff with no recourse in any jurisdiction – and that cannot be what the legislation is meant for. The judge dismissed the summary judgment, and by successfully defending the motion Todorovic turned the tides on settling the case.

This is a helpful case for federal workers going forward. If they are in a situation where they elected WSIB benefits – whether because they did not know the full extent of their injuries at the time or did not realize they had an option to sue – they can still sue in tort as long as they are following the subrogation rules within s. 9 of the GECA.

“They can still go down those avenues and the addition of section 9(2) is not fatal to their tort claim,” says Todorovic. “From a personal injury perspective, the fact that a plaintiff’s rights to civil action are not extinguished can be significant.”

Nick Todorovic’s practice is dedicated exclusively to plaintiffs’ personal injury and wrongful death cases. His unique approach to personal injury law partly comes from completing a PhD in organic chemistry and spending years in a laboratory researching pharmaceutical drug candidates for various cancers and antibiotic resistances. His analytical skills allow him to think outside the box when advocating for victims and maximizing their awards.

Nick is no stranger to litigating high-profile cases involving boating deaths, municipal liability, ethanol lamp explosions, cycling crashes and multi-trauma motor vehicle crashes. Nick has also been successful at various levels of courts in obtaining instrumental judicial decisions and advancing victims’ rights. His passion for cycling makes him a zealous advocate for vulnerable road users. Nick is also actively involved in the Serbo-Croat community in providing victims access to justice. Nick has also sat on the board of directors for the Brain Injury Association of Peel and Halton and enjoys speaking at conferences to educate others about personal injury law.