Wrongful death damages not precluded by WSIA, says court

Court rules mother’s claim against son’s employer and co-workers for negligence causing death can go forward
|employmentlawtoday.com

The Ontario Superior Court of Justice has ruled an Ontario woman claiming damages from her son’s employer and co-workers for his death at work is not prevented from taking her action before a tribunal by the Ontario

Workplace Safety and Insurance Act

(WSIA).

Stephen Dower, 20, was killed in a workplace accident on June 18, 2001, at United Lumber and Building Supplies Company Limited in Georgetown, Ont. His mother, Janice Dower, brought an action under the Ontario

Family Law Act

, which allows family members of a person killed or injured through the fault or negligence of another person to claim losses from the death or injury. Janice Dower claimed United and two of her son’s co-workers were responsible for her son’s death due to negligence.

United argued her claim was without merit, as she wasn’t a dependant or a survivor as defined under the WSIA and therefore wasn’t entitled to file an action under that legislation. It also said Stephen Dower wouldn’t have had the right to file an action himself had he survived the accident and received benefits under the WSIA. Janice Dower’s claim was derivative of her son’s, which was barred by the WSIA, and could not be allowed. United requested the court to dismiss Dower’s claim in a summary judgment.

The court found Dower’s action raised “a significant question of law where the law is not settled” and the Workers’ Safety and Insurance Tribunal should decide in a hearing whether the WSIA precludes Dower’s claim against United and its two employees under the wrongful death provision of the

Family Law Act

. The court denied United’s application for summary judgment and ruled the action would go to trial.

For more information see:

Dower v. United Lumber & Building Supplies Co.

, 2008 CarswellOnt 2397 (Ont. S.C.J.).

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