Executive Summary: Key Legal and Evidentiary Issues

• The reasonableness of the Workplace Safety and Insurance Board’s (WSIB) interpretation of its authority to approve a settlement after it was made under s. 30(14) of the Workplace Safety and Insurance Act, 1997 (WSIA).

• Whether the statutory requirement for WSIB approval of a settlement “before it is made” is mandatory or directory.

• Consideration of the purpose and intent of the WSIA in providing compensation to injured workers.

• Assessment of the reasonableness of the WSIB’s exercise of discretion in approving the settlement and reopening the worker’s claim.

• Evaluation of whether the employer (TTC) suffered any prejudice due to the timing of the settlement approval.

• Determination of appropriate costs in judicial review proceedings.

Background and facts of the case

On July 8, 2017, a Toronto Transit Commission (TTC) bus driven by Harkiranpal Bering was involved in a collision with another vehicle. Bering, a TTC employee, was informed by the Workplace Safety and Insurance Board (WSIB) that he could either claim WSIB benefits or pursue a civil action against the at-fault driver. Bering elected not to claim WSIB benefits and instead commenced a lawsuit and an accident benefits claim, which he settled in December 2020 for $278,000. After legal fees, he received $170,000.

Nearly three years later, Bering contacted the WSIB, seeking to apply for WSIB benefits, explaining that he had not received adequate guidance from his employer or the WSIB at the time of the accident. The WSIB notified the TTC and invited submissions regarding the settlement. The TTC did not respond by the deadline and later objected, arguing that Bering had not obtained WSIB approval before settling, as required by s. 30(14) of the WSIA.

WSIB’s decisions and policy terms at issue

The WSIB approved Bering’s settlement and reopened his claim, finding the settlement to be reasonable and noting that the WSIA is remedial legislation intended to ensure compensation for injured workers. The WSIB reasoned that it would be unreasonable to permanently bar Bering from benefits solely due to the timing of the approval request. The WSIB’s decision was reaffirmed upon reconsideration, emphasizing the reasonableness of the settlement and the lack of prejudice to the TTC.

The key policy term at issue was s. 30(14) of the WSIA, which states that a worker who settles a civil action may receive WSIB benefits only if the WSIB approves the settlement “before it is made.” The court was asked to determine whether this requirement is mandatory or directory and whether the WSIB’s interpretation and application of the statute were reasonable.

Analysis and outcome

The Divisional Court reviewed the WSIB’s decisions on a standard of reasonableness, as established in Canada (Minister of Citizenship and Immigration) v. Vavilov. The court found that the WSIB’s interpretation of s. 30(14) as directory, rather than mandatory, was reasonable in light of the WSIA’s purpose to provide compensation to injured workers. The court also found that the WSIB’s approval of the settlement after it was made, and its decision to reopen Bering’s claim, were reasonable exercises of discretion, especially given the absence of prejudice to the TTC and the remedial intent of the legislation.

Ruling and overall outcome

The application for judicial review brought by the TTC was dismissed. The court ordered the TTC to pay costs of $7,500 to the WSIB. The successful party is the Workplace Safety & Insurance Board, and the total amount ordered in its favor is $7,500 in costs. No damages or other monetary awards were granted.