In what may be considered a particularly rare occasion, the
Ontario Court of Appeal has addressed an employment law issue in
the context of Go-Kart racing.
In this case, the appellant volunteered to be a
"race director" for a Go-Kart race, for which he received
a small stipend. When a Go-Kart driver crashed into hay bales that
lined the corner of the race track, the appellant was injured. He
sued both the employer and the Go-Kart driver for his injuries. His
claim was dismissed in a summary judgment because he had signed a
waiver releasing the employer from liability for any damages
associated with the event, including the employer's
Ontario's Workplace Safety and Insurance Act (the
"Act"), provides an insurance
system for employees in specific industries that are outlined in
the schedules to the Act. However, if an employee works
for a company that isn't covered in those schedules, Part
X, section 114(1) of the Act permits workers to sue their
employers for workplace accidents that may arise due to a defect in
workplace equipment or the employer's negligence.
The Court of Appeal found that it would be contrary to public
policy to permit workers like the appellant to contract out of the
Act. There is no clear indication in the Act that
it permits employers and employees to contract out of its
protective measures for injured workers, therefore its regime
cannot be ousted by a simple waiver. The Court allowed the appeal
– the appellant's case will now proceed to trial.
In light of this case, employers should re-consider any similar
attempts to contract out of the Act's workplace safety
regime – even for individuals who are merely volunteers who
receive a stipend.
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