Where worker entitled to action against person other than employer
10.(1) Where an accident arising out of and in the course of a worker’s employment happens to the worker under such circumstances as entitle the worker or his or her dependants to an action against some person other than the employer, or an executive officer or director thereof, the worker or his or her dependants, if entitled to benefits under this Part, may claim such benefits or may bring such action. Worker entitled to difference between benefits and amount collected (2) If less is recovered and collected by a judgment in the action or by settlement than the amount of benefits to which the worker or his or her dependants are entitled under this Part, the difference between the amount recovered and collected and the amount of such benefits is payable to the worker or his or her dependants. R.S.O. 1990, c. W.11, s. 10(1, 2). Application of subs.(2) (2.1) Subsection (2) does not apply in respect of an accident that occurs on or after the day section 267.1 of the Insurance Act comes into force if, as a result of the accident, the worker or the dependants receive statutory accident benefits under section 268 of the Insurance Act. 1993, c.10, s.55(1). Settlements to be approved (3) Subsection (2) applies to a settlement only if the approval of the Board to such settlement has been given before the settlement is made. Subrogation of employer or Board to rights of worker (4) If the worker or his or her dependants elect to claim benefits under this Act, the employer, if the employer is individually liable to pay it, and the Board, if the compensation is payable out of the accident fund, are subrogated to all rights of the worker or his or her dependants in respect of the injury to the worker and may maintain an action in the name of the worker, or of the Board if the employer is in Schedule 1, or of the employer if the employer is in Schedule 2, against the person against whom the action lies and any amount recovered over and above all amounts expended by the Board or the employer in respect of such claim and action shall be paid to the worker or his or her dependants and any such surplus paid to the worker or his or her dependants shall be deducted from the amount of any future compensation or other benefits to which the worker or his or her dependants may become entitled in respect of the accident that gave rise to the injury. Recovery of amounts of benefits (5) The employer in Schedule 2 or the Board may, in the action under subsection (4), also recover any amounts expended on behalf of the worker or his or her dependants by way of compensation or other benefits and has the exclusive right to determine whether such action shall be maintained, abandoned or compromised. How election to be made (6) The election shall be made and notice of it shall be given within the time and in the manner provided by section 9. R.S.O. 1990, c. W.11, s. 10(3-6). Where worker or dependant is a minor (7) If a worker or a dependant is under the age of eighteen years, the election under subsection (1) may be made on his or her behalf by a parent or guardian or by the Children’s Lawyer. R.S.O. 1990, c. W.11, s. 10(7); 1994, c. 27, s. 43 (2). Where worker incapable of making election (8) If a worker is mentally incapable of making the election under subsection (1) or is unconscious as a result of his or her injury and no committee has been appointed, the worker’s dependent spouse may make such election, but if no election is made within sixty days after the day of the injury, the Public Trustee shall elect on behalf of the injured worker. Right of action as against employer in Schedule 1 (9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any executive officer or any director or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers. Exception (10) Subsection (9) does not apply where the employer has supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate such motor vehicle, machinery or equipment. Damages (11) In any action brought by a worker of an employer in Schedule 1 or dependant of such worker in any case within subsection (1) or maintained by the Board under subsection (4) and one or more of the persons found to be at fault or negligent is the employer of the worker in Schedule 1 or an executive officer or director thereof, or any other employer in Schedule 1, or an executive officer or director thereof, or any worker of any employer in Schedule 1, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or executive officer or director thereof, or of any worker of any employer in Schedule 1, and the portion of the loss or damage so caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or an executive officer or director thereof, or of the worker of any employer in Schedule 1, shall be determined although such employer or executive officer or director or worker is not a party to the action. Idem (12) In any action brought by a worker of an employer in Schedule 2 or dependant of such worker in any case within subsection (1) or maintained by the employer of the worker under subsection (4) and one or more of the persons found to be at fault or negligent is the employer of the worker in Schedule 2 or an executive officer or director thereof, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer or executive officer or director and the portion of the loss or damage so caused by the fault or negligence of such employer or executive officer or director shall be determined although such employer or executive officer or director is not a party to the action. R.S.O. 1990, c. W.11, s. 10(8-12). Re-election if automobile insurance benefits not available (13) If a worker or dependant elects under subsection (1) to bring an action in respect of an accident that results from the use or operation of an automobile as defined in the Insurance Act and it is subsequently determined that the worker or dependant is not entitled to statutory accident benefits under section 268 of that Act in respect of the accident, the worker or dependant may claim benefits under this Part. Benefits received before automobile insurance benefits (14) A worker or dependant who receives benefits under this Part and who subsequently receives statutory accident benefits under section 268 of the Insurance Act in respect of the accident is not entitled to any further benefits under this Part but is not required to repay any benefits under this Part that were received before the statutory accident benefits were received. Automobile accidents; benefits under ss.42,43 (15) No benefits shall be paid under section 42 or 43 to a worker who, in the absence of this Act, would be entitled to statutory accident benefits under section 268 of the Insurance Act in respect of the same injury unless the worker confirms his or her election under subsection (1) to claim benefits under this Part. Same (16) A worker who has received benefits under section 42 or 43 and who, in the absence of this Act, would be entitled to statutory accident benefits under section 268 of the Insurance Act in respect of the same injury may not revoke an election under subsection (1) to claim benefits under this Part that has been confirmed under subsection (15). Automobile accidents; death benefits (17) No benefits shall be paid under clause 35(1)(a) or subsection 35(7) to a worker’s spouse or dependent child if, in the absence of this Act, the spouse or child would be entitled to statutory accident benefits under section 268 of the Insurance Act in respect of the worker’s death unless, (a) the spouse or child confirms his or her election under subsection (1) to claim benefits under this Part; or (b) no action has been brought by the spouse or child and the limitation period for bringing the action has expired. Same (18) A worker’s spouse or dependent child who has received benefits under clause 35(1)(a) or subsection 35(7) and who, in the absence of this Act, would be entitled to statutory accident benefits under section 268 of the Insurance Act in respect of the worker’s death may not revoke an election under subsection (1) to claim benefits under this Part that has been confirmed under clause (17)(a). Application of subss. (13) to (18) (19) Subsections (13) to (18) apply only in respect of accidents that occur on or after the day section 267.1 of the Insurance Act comes into force. 1993, c.10, s.55(1).