???? v. Workplace Safety & Insurance Board - WSIB
A new class action lawsuit has been filed in court for class action certification. Unfortunately I do not have all the details or facts as of yet. If you have more specific "legal" information such as a link to the case, please send me the link.
There is a news article which a link has been placed in the WCB in News section of this website.
Castrillo v. Workplace Safety and Insurance Board, 2015 ONSC
Unfortunately the initial case that went before the court, which was to certify the action as a "Class Action" is not available. If you have a link tot he initial case please send me a link so I can add the information here
Ontario Superior Court of Justice:
Mr. Castrillo had filed a motion in court to certified a class action lawsuit. His lawyer Peter Fink stated in a Toronto Star interviewthat previously the Board [WSIB - Ontario's WCB] would calculate the NEL Award [ a financial award granted to injured workers who suffer a permanent impairment as a result of a workplace accident] on a point system, then without change of policy or law they changed the way the calculate the award based on pre-existing conditions. Mr. Fink argues this is illegal and breach the Tort of Public Misfeasance. In 2015, the case was heard in Ontario Superior Court, where Justice Edward P. Belobaba of the Superior Court of Justice, dismissed the class action lawsuit in his decision dated June 25, 2015. The lawyer, Peter Fink for the plaintiff filed an appeal to the Court of Appeal for Ontario.
Castrillo v. Workplace Safety and Insurance Board, 2017 ONCA 121
Deals with suing a WCB in a Class action matter. The plaintiff upon receiving the decision of the Ontario Superior Court, filed an appeal with the Court of Appeal for Ontario. The following is the result of the Court of Appeal for Ontario's decision.
Court of Appeal for Ontario:
In their unanimous decision allow the class action against the WSIB [Ontario WCB] to proceed. Justice Lauwers J.A for the three membered panel of judges stated the following of the motion judge "He did not interpret the pleading generously, as the cases require, but instead deconstructed it for the purpose of determining whether the privative clause in the WSIA applied to oust the court’s jurisdiction. This was an error in principle." They also stated in their decision "Section 179 does shield certain people from personal liability for acts and omissions undertaken in good faith. But it also clearly recognizes that the Board may be vicariously liable for any such actionable acts or omissions." [Emphasis added]
This case is really about how the WSIB has been intentionally and neglectfully reduced victims of workplace accidents benefits and awards by claiming they had or have preexisting conditions. Prior to 2012, what the WSIB (previously the Ontario WCB), would treat the injured worker as though they had no pre-existing conditions ( just as all court in all common law jurisdictions do). However the WSIB would give financial relief to the employer. In what is called as Secondary Injury Enhancement Fund – SIEF. However, since 2012, the WSIB has taken an aggressive action against injured workers. They in simple terms, blamed the injured worker for their delayed recovery and as a result the WSIB would reduce or completely deny benefits to injured workers. This goes against centuries of common law doctrine!
This is something I have always been opposed to, for two simple reasons:
1. Under“Tort Law”which is what is used when you are suing someone for damages, there is something referred to as the “Thin Skull or Egg shell Approach”. This simply means that you take a person with all their possible defects as they are. They cannot and should not be punished for prior conditions. This has been law in Common law for a very long time and cited numerous times in the highest courts such as Supreme Court of the United Kingdom, The Supreme Court of Canada, the Unite States Supreme Court, High Court of Australia, Supreme Court of New Zealand, as well as many more.
2. Nor should the Employer be rewarded for this through financial relief (SIEF). This is something else I am opposed to for it openly encourages employers to be deceitful to injured workers and violate their privacy, by demanding injured workers provide complete medical history to employers!
Updated News on This Case:
The WSIB has settled this Class Action lawsuit and has claimed to have reversed its position on punishing injured workers with preexisting conditions. If you are an injured worker and deals with the Ontario WSIB, who has had your benefits reduced or eliminated due to a preexisting or 'claimed' preexisting condition contact the WSIB and request a review based on this new policy. If you require assistance Contact IVAGO.
You can see the article in the Toronto Star here.
This page has been setup to provide a list of all the pending and/or completed lawsuits that have been filed as a Class Action against a WCB.
A "class action" lawsuit is one in which a group of people with the same or similar injuries caused by the same product or action sue the defendant(s) as a group.
Together, however, the value of the claims of the class add up, and suing as a class means consolidating the attorneys, defendant, evidence, witnesses, and most other aspects of the litigation. If the number of people affected by the product or action/inaction is high, it becomes impractical or even impossible for them to file individual lawsuits.
When such an action is permitted, the group files the lawsuit with a representative plaintiff -- called a "named plaintiff" or "lead plaintiff" -- at the forefront.
A class action must be certified by the court in order to proceed.
This is done by filing a motion before a proper court and asking the permission of the court to certify the action as a Class action. The issue will be to prove all the litigants have similar claims.
This can be done by the plaintiffs, but can also be done by the defendants, as well as the court itself.
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