Workers' rights to sue over workplace accidents are severly
restricted by workers compensation schemes across the country.
Statutes like the Workers Compensation Act of BC provide
workers with access to an insurance scheme that does not depend on
finding fault or the ability of the employer to pay for a workplace
injury, illness or death. But in exchange, workers cannot sue the
employer or other workers. That has been described as the
"historic trade-off" and the Supreme Court of Canada
recently re-affirmed the principle.
The Ryan brothers were drowned when their fishing vessel
Marine Services had designed and built the vessel.
The Ryan brothers were not employees of Marine Services, but
they were workers covered by the Newfoundland and Labrador
Workplace Health, Safety and Compensation Act.
Their widows and dependents received compensation under that
Their estates also sued Marine Services and one of its
employees for negligence in the design and construction of the
Marine Services and its employee argued they could not be sued
because of the "historic trade-off" by which the workers
compensation legislation prohibited a lawsuit over a workplace
death. The Supreme Court of Canada agreed:
The WHSCA replaces the tort
action for negligence with compensation. As such, it is distinct
from tort law. Section 44 of the WHSCA provides for the
statutory bar that is at the heart of the "historic
A direct employment relationship did
not exist between the Ryan brothers and Marine Services at the time
of the accident that led to their death. However, the statutory bar
in s. 44 of the WHSCA does not only benefit an
"employer" in a direct employment relationship with the
injured worker. Any employer that contributes to the scheme
(and any worker of such an employer) benefits from the statutory
bar, as long as the worker was injured in the course of
his or her employment and injury "occurred ... in the conduct
of the operations usual in or incidental to the industry carried on
by the employer". [paragraphs 31 and 41; emphasis added.]
The BC Workers Compensation Act has essentially the
same provisions in section 10. Also, as in Newfoundland and
Labrador, the BC Workers Compensation Board is subrogated to the
rights of the worker receiving compensation under the Act. That
means the Board can pursue an action in the name of the worker. But
it should not mean the Board can pursue an action against another
employer or worker covered by the Act.
Every now and then there are challenges to the "historic
trade-off", but the Marine Services case is the
latest affirmation that the principle should hold when an action
over a workplace injury, illness or death is brought against an
employer or worker covered by the workers compensation scheme.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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