Ontario Workplace Safety and Insurance Appeals Tribunal Decision No. 1504/12 (Ontario WSI Appeals Tribunal)

Mr. Kumar was employed by a company that carried on a retail sales business out of one of the units in Toronto Standard Condominium Corporation No. 1554 (TSCC 1554).  Mr. Kumar was injured, during the course of his employment, when he slipped and fell on an icy sidewalk outside the condominium units, and sustained serious injury to his ankle.  Mr. Kumar and his wife brought claims against TSCC 1554 in Ontario Superior Court.  TSCC 1554 applied under Section 31 of the Workplace Safety and Insurance (WSI) Act for a determination that Mr. Kumar and his wife had no right to assert their court claims against the condominium corporation.  The WSI Appeals Tribunal held that the claims of both Mr. Kumar and his wife could not proceed.  The tribunal’s reasons were that, at the time of the accident, 

• Mr. Kumar was a worker within the meaning of the WSI Act;

• Mr. Kumar was employed by a “Schedule 1 Employer” (ie, an employer for which WSI coverage is mandatory);

• Mr. Kumar was in the course of his employment; and

• TSCC 1554 was also a Schedule 1 Employer, because TSCC 1554 operated “a building rented wholly or partly for manufacturing, retailing, wholesaling, or warehousing”. 

Even though TSCC 1554 had not paid its WSI premiums, TSCC 1554 was “an employer participating in a business that was a compulsorily covered industry within Schedule 1”.  The Tribunal therefore ruled that “the action commenced by Mr. and Mr. Kumar in the Ontario Superior Court of Justice… is taken away by the Workplace Safety and Insurance Act, 1997”.