FOOD DELIVERY & BIKE COURIERS: KNOW YOUR RIGHTS!
With the COVID-19 pandemic, Ontario has seen a surge in the number of cyclists taking to the streets to deliver food to people rightfully staying at home. People have took to their bikes to earn a living and help their communities. These cyclists are frontline heroes and I applaud you all.
I also want you to know your rights in case the unfortunate happens, a crash.
Most of my bike crash cases involve bike commuters and pleasure riders. However, that is not reflective of the cycling reality on our streets. When I commute to work I see dozens of working people riding their bikes, day and night, sun or rain. They ride not to commute, but to earn a wage.
What happens to those working people when they are injured after being hit by a careless car driver, struck by a door, or run off the road? What recourse do they have?
A crash that occurs when commuting to work on your bike is often handled differently than a crash that happens when you are riding your bike for work. What benefits you may be entitled to may differ depending on the situation. While a commuter or pleasure cyclist hit by a car can sue in court and access no-fault Accident Benefits (which I wrote about here), a courier or delivery person may not be able to. Instead they may have to proceed through the Workplace Safety and Insurance Board.
The Workplace Safety and Insurance Board (WSIB), the workers compensation system in Ontario, was set up to allow workers to avoid the need to sue in court for injuries that happen at work. WSIB provides a system that does not require employees to prove fault in order to get compensation, but it also can take away the right of injured employees to sue for other compensation.
This is what is often referred to as a historical tradeoff: in exchange for guaranteed access to injured worker benefits, employees lost the right to be able to sue their employers or fellow employees when they were negligently injured at work.
Unfortunately, this can have potentially harmful consequences for someone who is seriously and permanently injured because their right to claim pain and suffering damages may be extinguished if they fall within the WSIB system.
A broad range of employees and employers are automatically included within the WSIB system.
This generally includes food delivery people and bike couriers.
However, in some cases, couriers or food delivery people have the right to decide whether to opt-in to the WSIB system or to proceed with a lawsuit. In other cases, the employee has no choice at all.
The decision is almost entirely decided by who hit you.
If you and the person who hit you are both eligible for WSIB (i.e. you both are workers whose employers participate in WSIB, and are driving for work at the time of the crash), then you cannot sue each other, your employers, or each other’s employers. (Example: if you are hit by a FedEx truck in a bike lane while you are both delivering parcels.)
It is usually really unclear if WSIB applies even if the person who hit you was working. In all cases, consult a lawyer and they will tell you what benefits you can apply to and the proper way to proceed.
WSIB Does Not Apply:
If the accident involves a non-covered individual – for example, if a delivery driver collides with a driver who is not on the job – then the WSIB rules do not apply.
The delivery driver could sue the non-working driver. (Example: Tourist in the entertainment district whips their car door open into your path - you have a right to sue.)
I have to think a courier colliding with a non-working car driver is far more common on the streets of Toronto than two delivery drivers colliding.
In this case you are entitled to statutory no-fault Accident Benefits (which I have written about here) and can elect to receive these instead of WSIB. The no-fault Accident Benefits are usually preferential to WSIB but you should always weigh your options in light of the severity of your injuries.
Just to be clear, if you were involved in a bike/car crash as a courier or delivery person and the other driver was not covered by WSIB and was not in the course of their employment, you have a far higher chance of being able to elect to start a lawsuit than if the opposite is true.
If the crash is not your fault then in most cases the benefits and compensation available through Accident Benefits and a civil tort claim will end up being far more generous than those benefits offered through WSIB.
It will be important for you to consult with a lawyer ASAP about what benefits are covered under WSIB v.s. AB/civil suit. Make an informed choice on which how to proceed.
No matter which system you think applies to you, always take photos, get the driver’s driver license, plate and insurance information, report the incident to police and seek medical attention. (Here's a step by step guide of what you should do if involved in an accident.)
If you decide not to go with WSIB, it is important to notify WSIB right away that you are intending on pursuing a claim through car insurance (either yours or the driver’s who hit you) and not through the WSIB system. You should then apply for Accident Benefits to begin receiving health and wage benefits right away.
Some important timelines:
You have 60 days to elect out of or in to WSIB
You have 30 days to apply for Accident Benefits
You have 10 days to notify the City of Toronto if you intend to claim against them
You have 2 years to file a claim in Civil Court (tort claim)
Ride safe friends!
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