WORKERS COMPENSATION BOARD TAKING MONEY THAT BELONGS TO INJURED WORKER (ONT, CANADA)

[eve]

I was injured on the job in 1999 as a Canadian employed flight attendant, during the course of my duties while in England. I fell out of the aircraft (while on the ground) due to the negligence of the third party catering company that is wholly a UK company. In WSIB law of Ontario, when an accident involves a third party, the WSIB is required to send a third party election form (under section 30 of the WSI ACT) to the worker so that the worker can "choose" to either receive WSIB benefits OR pursue a legal action against the third party. In my case, I was never sent this form and I never knew of this requirement until years after the accident when I commenced a personal injury suit in the UK against the catering company in 2001. When a worker chooses to receive these benefits by signing the election form they are sent by the WSIB, any actions commenced against the third party can only be controlled by the WSIB (if the worker is a schedule 1 worker, which, I was). If a form is not presented and has not been signed, but the worker receives WSIB benefits, then in the past, the WSIB has been able to say they "deem" a worker to have elected for benefits simply due to receiving the benefits. At that point, the WSIB has the right then to control the action. However, this is contrary to what is stated in the Act with respect to the election for it says in the Act in section 30(6) that if an election has not been given, then the worker is deemed to NOT have elected for benefits. There is caselaw from 1991 and 2005 that supports this principle that the WSIB cannot "deem" a person to have elected benefits simply due to the person having received the benefits from the WSIB!

2 weeks before my UK trialin march 2004, the defendant solicitors informed my solicitor that they knew of this requirement of the election and as I was receiving benefits, this meant I had "elected" to receive them due to signing the form they asserted. They told my solicitor that as I had elected for benefits, this meant I was not allowed to sue their client! My solicitor told me he had to involve the WSIB now and get their permission to carry on with the case. I knew I had never received this form and hence, had never signed such a form but I gave my permission anyway to contact the WSIB. My solicitor was told by Legal Counsel at the WSIB that I was never sent this election form but because I was receiving benefits, they said I was "deemed to have elected" for them which meant that it was only the WSIB who had the right to control my UK action. My solicitor told me he agreed with this and told me I had to consent to the terms expressed by this Legal Counsel as being that the WSIB would take control, give settlement instructions, and receive the settlement money at the conclusion of my lawsuit in which case, they would take out what was owed from my WSIB claim and give to me any surplus amount. Another requirement was that any judgement would need to be entered in to Court in the name of the WSIB ONLY! My solicitor agreed to their terms and my case was settled on instructions given by the WSIB but against my instructions to settle. My solicitor asked me for instructions but told me it did not matter what I said anyway because the right to settle vested with the WSIB.

The case remained at all times in my name only and when my case settled fully in 2005 I noticed that the judgement was entered in to court in MY NAME ONLY and that the WSIB was nowhere mentioned in the papers at all!! My solicitor then was taking steps to transfer the money to the WSIB and I was telling him not to! He told me in order to stop the transfer, I had to retain a Canadian lawyer - so I did and the transfer was stopped due to my solicitor saying he was now in a conflict position and could not act for either party in the release of the funds until both parties gave agreed instructions.

The dispute with the WSIB has been ongoing since 2005 and we have received settlement offers to settle with me for the negligent material misrepresentations of the WSI Act that were made by the Legal Counsel of the WSIB in her letter from 2004 in which the terms were set out for the case continuing. There is caselaw that supports the notion that the WSIB can not take control of any action that is outside their territorial jurisdiction of Ontario. There is caselaw that mirrors my situation of a worker being deemed to have elected for benefits due to having received the benefits - a Judicial Review panel decided this is not legal to do and they reversed this decision of the WSIB's so that the worker was free to carry on with his personal injury case on his own terms and on his own accord.

The UK lawfirm has always stated they can not release the settlement to ME (even though the funds are SOLELY in MY NAME) due to their being an agreement between the WSIB and myself - they say the letter that had the terms expressed in it from 2004 that had been addressed to my UK solicitor and had asked that my UK solicitor consent to the terms but did not ask the same of myself, was this agreement between the WSIB and myself! My lawyer wrote to the UK lawfirm last month and told them there is no agreement between the WSIB and myself due to that letter lacking consideration and due to the WSIB legal counsel having made negligent misrepresentations in the letter in order to assert a right to take control of my UK action. My lawyer asked that due to this, my funds need to be released to myself forwith due to the funds being in my name alone! The UK lawfirm responded with saying now a new position of now saying a legal promise was given to the WSIB in 2004 (the terms of the letter) and that they must fulfill that promise and send the funds to the WSIB. I have instructed this firm to not release my funds to the WSIB as the WSIB has no rights to these funds from a statutory perspective (due to no election having been made) and from a territorial jurisdictional perspective (due to the fact my action was in the Uk and therefore outside of the rights of the WSIB to subrogate a third party action) - my Toronto lawyer has also submitted the same legal information to this UK lawfirm however, we received confirmation just yesterday that this firm will be transferring my funds to the WSIB due to the WSIB's lawyer asking that this UK lawfirm fulfill their promise given in 2004 and release the funds to his client! Meanwhile, the case remained in my name the entire time, the funds are sitting in a client account at the firm in my name only, and I have continually instructed that my funds be released to myself and have stated this legal dispute with the WSIB will be dealt with accordingly using my Toronto lawyers!

So my question then is: how can the lawyer for the WSIB ask this Uk lawfirm to release funds that are in someone else's name?? And, how can the UK lawfirm release these funds to anyone but to me when the funds are in my name only and when it has been shown through caselaw support, that the WSIB had no legal rights to take control of my UK action and give settlement instructions and has therefore, no rights to any funds that came from that action?? One of the promises given to the WSIB by my Uk solicitor in 2004 was that any judgement would be entered in to the name of the WSIB (which would mean, it would be the case then I would assume, that the WSIB would have a right legally to direct these funds IF the funds are in THEIR name) but as the funds are only in MY name, then how can ANYONE but myself, direct where and when the funds should be transferred? I don't understand - so, please help!!

Plus, what can I do in order to be able to have my funds be paid to me by the WSIB or by the UK lawfirm? What are the legal remedies that I can pursue to ensure I receive these funds in full?

THANK YOU!!

(I have absolutely no knowledge of this type of incident. This is my PERSONAL OPINION ONLY).

I would think that (if I understood your post) that if you received money as a settlement and you had previously received workmens compensation, the WC people MAY be entitled to recoup their expenses.

And No I dont think its fair!

[eve]

Hi Unregistered!

As a point of "equity", yes, you are right, they would have that right - but as a point of "statute" - meaning the Workers Compensation Act of Ontario, they only have that right when a worker has elected to take workers comp (WSIB) benefits and then the WSIB initiates a legal action against the third party responsible for the accident - but if no election was made by the worker, then the WSIB has no right to take control of an action - but they have no right anyway to being involved in third party actions that are outside of their jurisdiction of Ontario. So, it is complicated for sure. Thanks though for your opinion nonetheless.