An Ontario employee has won the right to sue his employer for
damages for an injury suffered at work. An appeal court
decided that a waiver he signed was, due to provisions in the
Ontario Workplace Safety and Insurance Act,
The National Capital Kart Club held a go-cart event at which the
employee acted as race director. The employee was injured after one
go-kart driver crashed into hay bales. The employee sued his
employer, the go-kart driver and others. The defendants argued
that a waiver, which the employee had signed, released them from
The employer was not required, under the Workplace Safety
and Insurance Act, to be registered with the Ontario Workplace
Safety and Insurance Board. Therefore the employee did not
have workers compensation coverage.
The employee, on appeal, relied on the little-known Part X of
the Workplace Safety and Insurance Act. Part X
contains section 114(1) which, the employee argued, made the waiver
unenforceable. That section applies to workers whose employer
is not registered, and not required to be registered, with the
114. (1) A worker may bring an
action for damages against his or her employer for an injury that
occurs in any of the following circumstances:
1. The worker is injured by reason of a defect in the
condition or arrangement of the ways, works, machinery, plant,
buildings or premises used in the employer's business or
connected with or intended for that business.
2. The worker is injured by reason of the employer's
3. The worker is injured by reason of the negligence of a
person in the employer's service who is acting within the scope
of his or her employment.
The Court of Appeal for Ontario held that it was contrary to
public policy to allow employers to have employees "contract
out" of Part X of the Workplace Safety and Insurance
Act (that is, sign a waiver giving up their rights, under Part
X, to sue their employer for certain workplace injuries). As
such, the waiver was unenforceable and the employee's lawsuit
Employers that are not registered with the WSIB, and not
required to be registered, should review their use of waivers
– including waivers for company events. As a result of
this decision, waivers signed by employees will not be enforceable
to prevent the employee from suing the employer for certain
injuries, including injuries caused by the employer's
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