Class action suit progressing

In February 2017 Ontario’s Appeal Court (Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121 (CanLII)) gave a green light to a class action lawsuit against the WSIB that applies the legal concept of misfeasance in public office. The court decision puts an end to the myth that the WSIB cannot be sued.

The class action was brought on behalf of workers who suffered permanent injuries from workplace accidents. Launched by lawyer Richard Fink in 2014 with representative plaintiff Pietro Castrillo, the lawsuit claims these injured workers were wrongfully denied the full benefits to which they were entitled under the Workplace Safety and Insurance Act because of a ‘secret policy’ in force (roughly 2011-2014). The suit alleges this secret policy illegally reduced non-economic loss (NEL) benefits for permanent impairments on the basis of asymptomatic prior conditions (such as degenerative disc disease related to aging) with the intent of saving the WSIB money. The secret policy applied a broader interpretation of the term “pre-existing impairment” to include asymptomatic conditions, which were excluded from the official policy on the books at the time. Injured workers who appealed the reduction had the full amount of the benefit restored based on the official policy, but many had to pay for legal representation to do this and they are suing to get their money back.

In the first of two recent posts in Administrative Justice System Reform, Ron Ellis discusses the lawsuit, the WSIB’s negation of the thin-skull doctrine and the implications of the Appeal Court decision. The second explains the legal concept of the tort of misfeasance in public office is founded on the principle that those who hold public office and exercise public functions are subject to the law and must not abuse their powers to the detriment of the ordinary citizen. Ellis lays out evidence for charges the Board will have to address: that it exercised its statutory powers to determine benefit entitlements for an ‘improper purpose’ namely, cost-saving to an improper degree), and that the new NEL discounting policy was unauthorized.

Gary Hrytsak, local president of the Manitoulin-North Shore Injured Workers Group (MNSIWG) applauded the Court of Appeal’s “landmark ruling” allowing the class action to proceed:

“…the WSIB denies injured workers claims and benefits by indicating the employee had a pre-existing injury, even though these injuries and claims were made as employees who were injured in the workplace … By doing that they denied people the opportunity of there being fairness in the system”

The decision refused a procedural move by the WSIB to put an early end to the class action. There are many procedural steps to take and it will still be a long time before the action is certified and can proceed to trial.

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