The Workplace Safety and Insurance Act regime
is predicated on the categorization of employers within its scheme.
Some employers do not need to be insured at all. If they choose not
to be insured the Act gives their employees the
right to bring a civil case against them for injuries suffered in
the course of employment. A recent Ontario Court of Appeal decision
clarified the law surrounding the eligibility of employees to make
such a claim.
In Fleming v Massey, the
employer operated a go-kart racetrack facility. Such a facility
does not have to register for WSIB coverage, and this employer had
not voluntarily opted-in to such coverage.
The employee was filling in for another worker as "race
director." While fulfilling his duties in this role, the
employee was injured in a go-kart collision.
The employee brought a civil suit against his employer and
others, alleging that their negligence caused his injuries.
Prior to the accident, the employee had signed a waiver
releasing the employer from any liability for injuries sustained at
work, including those suffered as a result of the employer's
negligence. The employer relied upon this waiver and asked the
trial court to dismiss the action on a preliminary basis. The
motion judge accepted the validity of the waiver and dismissed the
On appeal, the employee argued that the waiver was void.
The Court of Appealed reviewed the history of employee claims
against employers that pre-dated the workplace compensation system.
Historically, it was immensely difficult, if not impossible, for
employees to claim any compensation from their employers for
injuries suffered at work. This was in large part due to the
doctrine of voluntary assumption of risk, which essentially held
that a worker accepted the risks that came with being employed in a
The workplace compensation system replaced this traditional
system, implementing the system with which modern employers are
familiar, namely a no-fault, administrative insurance benefit
system which is mandatory for most employers. This system precludes
private court actions by employees against insured employers for
injuries suffered in the course of employment. Employees insured
under this system are not permitted to waive their entitlement to
The question before the Court was whether the same law that
prevented employees from waiving benefits under this system also
precluded them from waiving their entitlement to sue their employer
when their employer was not insured under the system.
The Court determined that it did.
The Court determined that the worker's compensation model in
the form of the WSIA was a complete rejection of
the voluntary assumption of risk model that had existed before its
inception. The waiver was characterized by the court as an attempt
to create a situation where the employee assumed the risk of his
employment. That was contrary to the purpose underpinning the
WSIA, and was therefore impermissible on the
grounds of public policy.
As a result, the waiver was void, and the employee was entitled
to continue his action.
Employers who are not obligated to carry WSIB coverage are at
risk of facing significantly greater costs then insured employers
in the case of significant workplace injuries. This case shows that
even in cases where employees voluntarily relinquish their rights
to take action against their employer, that permission may be
withdrawn, and the Court will ultimately not give weight to such a
waiver. As a result, a significant tool that self-insured employers
could use to minimize their liability for workplace accidents has
been rendered useless.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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