Injured Workers not covered by Ontario Workers’ Compensation Benefits have Right to Sue

Posted by Injury Lawyers of Ontario on December 15, 2016

The Ontario government recently announced that Essar Steel Algoma Inc.was fined $60,000 after pleading guilty because a worker was injured in a slip and fall accident on an icy walkway in March 2015.  When the worker fell, he was walking on a designated walkway for employees and ice had built up on a slope along the path causing it to become hazardous. This incident followed an August 2014 accident where three workers became injured in a steam explosion. The company was fined $100,000 by the Justice of the Peace in connection with this accident.  As mandated by the Provincial Offences Act, the court imposed an additional 25 per cent fine surcharge which is intended to help victims of a crime.

Under the Occupiers’ Liability Act, the occupier of a premises, including the owner, tenant or someone who controls the activities on a property, has a responsibility to keep anyone coming onto their property reasonably safe from harm.  Anyone who is injured on a premises because the owner allowed a dangerous condition or did not adequately warn visitors of a danger, is liable for damages if someone becomes injured as a result of the unsafe condition.

The Occupiers’ Liability Act applies to any visitors or the public, but the rules are different for employees. The majority of workers in Ontario are covered by workers compensation insurance under the Workplace Safety and Insurance Act (WSIA) which provides workers who are injured in the workplace, such as those who were injured while working at Essar Steel Algoma, to seek compensation, including wage replacement and medical benefits, from the Workplace Safety and Insurance Board.  Employees covered by workers’ compensation cannot waive their rights to this compensation and are not eligible to sue their employer for negligence.  Many Ontario businesses and companies automatically fall within the statutory workers’ compensation plan under WSIA.  Employers not automatically covered under WSIA can apply for coverage.

But what are the rights of workers who are injured in the workplace but not covered by statutory workers’ compensation?

Workers not covered by Ontario’s workers’ compensation have the right to sue their employers for accidents and injuries suffered in the workplace.  However, sometimes employers ask their workers to sign a liability waiver to remove their right to sue if they are injured on the job.  

The legitimacy of worker liability waivers was challenged in the Ontario Court of Appeal in a 2016 case, Fleming v. Massey. The case involved a man who was injured in a go-kart accident, while he was employed as a temporary race director at a go-kart event. Go-kart venues are not automatically insured under WSIA and the go-kart operator did not apply for workers compensation coverage. However, the injured man was requested to, and did sign a waiver relieving the track organizers of responsibility for any potential injury, and therefore, the injured man was uninsured.  

Nevertheless, the injured man sued the organizers, the driver of the go-kart, the track and the owners of the property where the accident occurred. In response, the defendants filed a motion for summary judgement to dismiss the plaintiff’s claim on the grounds that he signed a waiver.  The motions judge ruled that the waiver applied and the judge correspondingly dismissed the claim.

The Plaintiff’s counsel appealed this decision arguing that the waiver is void because it violates public policy, given that the injured man was an employee. Part X of the Workplace Safety and Insurance Act, section 114(1) applies to workers who are not included in industries covered by workers compensation. Under Part X, uninsured workers may sue their employers for damages for injuries that occur under the following circumstances:

  1. Injuries to a worker resulting from a defect in machinery, processes, buildings or the premises, while performing one's job or when used in connection with the business.
  2. Injuries due to negligence on the part of the employer.
  3. Injuries caused by another employee’s negligence while the latter is performing an aspect of their job.

The appeal judge agreed with the plaintiff's argument that the motion judge was in error when he decided that the plaintiff was not an employee.  In fact, a representative for the go-cart club admitted that he was an employee on the date of the accident.

Further, section 1 of the Act includes the intention to ensure that employees injured in a workplace accident receive compensation, and therefore, as argued by the plaintiff, any action or contract that attempts to remove a worker’s right to compensation is against public policy.  On these grounds, it was argued that the liability waiver signed by the plaintiff is against the goals of public policy and thus should be voided. The Court of Appeal agreed that it would be against public policy to allow people to contract out of the terms specified in Part X of the WSIA.  Therefore, the Court allowed the appeal of the motion judge’s decision and allowed the lawsuit for damages arising from the plaintiff's injuries to proceed to trial.  



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