Case against WSIB to move forward
Class action against the board for cutting worker benefits may possibly affect hundreds
A class-action lawsuit alleging Ontario injured workers had their benefits wrongfully slashed has been granted permission to proceed, after the province’s compensation board sought unsuccessfully to block the case.
The suit filed by Toronto lawyer Richard Fink against the Workplace Safety and Insurance Board could affect hundreds of workers. It argues accident victims between 2012 and 2014 were “denied the full extent of benefits to which they were entitled” as a result of “misfeasance in public office” and “negligence” at the board.
The class action was originally quashed two years ago by a Superior Court judge, who said WSIB compensation decisions were “beyond court challenge.”
But in a reversal issued Monday, the Court of Appeal ruled it could go ahead.
“This case is about law. As in, the rule of law,” Fink said. “If you accept what we’ve argued in our claim, the board may well be violating the law and should be subject to penalty. And that is a large step forward because it begins to hold the board accountable.”
In a statement to the Star, board spokesperson Christine Arnott said the decision needed to be discussed with the WSIB’s legal counsel “before determining how we will respond.”
“It is important to note that the decision concerns a procedural matter, and makes no determinations about the merits of (the plaintiff’s) case,” she added. “We continue to deny the allegations made in the lawsuit.”
Those allegations include that the WSIB sought to unfairly cut costs through a “secret policy” to “aggressively reduce” the lump sums awarded to workers with permanent injuries from workplace accidents.
The policy suggested benefits could be slashed by blaming at least some of a worker’s injury on a pre-existing condition — even if that condition had never shown any symptoms before the workplace accident, accord- ing to the lawsuit.
It represented a significant and some say illegal departure from the founding principles of the workers’ compensation system in Canada: the so-called thin-skull principle, which says workers cannot be discriminated against because of a pre-existing condition that had no physical impact on them before an accident.
The board argued there were no grounds for the allegations, and said it is obliged by law to act in a “financially responsible and accountable manner” — which includes reducing payments to injured workers where appropriate. It also sought to characterize the suit’s allegations as “those of a disgruntled claimant.” Justice Peter D. Lauwers rejected the board’s arguments in Monday’s decision.
The representative plaintiff is for- mer Brampton sewer worker Pietro Castrillo, who permanently damaged his shoulder at work in 2011. He was awarded a lump sum of around $3,000 — but the WSIB subsequently cut the amount in half because it claimed he suffered from osteoarthritis in the injured shoulder.
But Castrillo, now 64, had never previously experienced any symptoms of osteoarthritis. He appealed the board’s decision and won.
But he decided to pursue a classaction suit after learning about “a number of injured workers” who were similarly impacted by the alleged “secret policy” in operation at the board.
“It’s not just for me, it’s for all these poor people out there who don’t know where to go or what to do,” he said. “They get in accidents and it ruins their lives.”