Physically demonstrative managers beware: your company's
workers compensation coverage does not necessarily protect you from
lawsuits by employees.
Even though her employer had Workplace Safety and Insurance
Board coverage, an employee was entitled to bring a lawsuit against
an executive who "massaged" her neck, allegedly injuring
her, Ontario's Workplace Safety and Insurance Appeals Tribunal
However, the Workplace Safety and Insurance
Act prohibited her from suing her employer for the neck
The employee alleged, in her court action, that the executive
officer had injured her when he manipulated her head and neck
without her consent, thereby committing assault and battery. The
worker had a prior neck condition affecting her shoulder.
The executive officer was known to be physically demonstrative
and had been warned by the employer's human resources manager
not to touch employees or customers unless it was necessary.
The WSIAT decided that because the employee was in the course of
her employment at the time of the injury, she could not sue the
However, she would be permitted to sue the executive in the
courts if she could prove that he was not acting in an
employment-related capacity when he massaged her neck.
The WSIAT decided, on the facts of this case, that in
administering the massage, the executive "deviated
substantially from his regular activity as an executive
officer". The conduct had nothing to do with his work duties,
which was shown by the warning from the human resource manager. As
such, he was not acting in an employment-related capacity when he
massaged her neck, and the employee was permitted to sue him in the
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