Canada: Ontario Court Of Appeal Determines That Employer Cannot Rely Upon An Employee's Waiver Of Risk Of Injury

The recent decision of Fleming v. Massey1 raises the very interesting question of whether an injured employee can waive his or her rights under Part X of the Workplace Safety and Insurance Act2 (WSIA). This is an important question with wide implications as similar provisions are in existence in workers' compensation legislation in New Brunswick3, Nova Scotia4 and Prince Edward Island5.


In Fleming v. Massey the respondents held a go-kart racing event. During such events, a race director was required. The regular race director was unavailable and Mr. Fleming filled the role. Mr. Massey crashed the go-kart he was driving into some hay bales lining the track. Mr. Fleming was injured as a result of the crash. The Respondents argued that Mr. Fleming had signed a waiver releasing the Respondents from liability for all damages associated with participation in the go-kart event due to any cause, including negligence. The Motions Judge found that Mr. Fleming was not an employee but rather a volunteer who received a stipend, and that he had signed a waiver, that he knew generally what signing the waiver would mean and that the wording of the waiver was broad enough to cover all eventualities6. Mr. Fleming appealed arguing that the Motions Judge erred in finding that he understood the effect of the waiver when he signed it.

Mr. Fleming also contested the finding that he was not an employee. The fact that Mr. Fleming was a paid employee on the day of the go-kart event was admitted by the Respondents on appeal7. Further, the parties agreed that Mr. Fleming was not an insured worker under WSIA. The reason being was that go-kart tracks are classified as "non-covered" by the Workplace Safety and Insurance Board of Ontario. Workers at such facilities are not insured unless the employer has specifically applied for WSIA coverage. The respondent race track did not apply for WSIA coverage. The result was that Part X of WSIA applied and Mr. Fleming was permitted to sue the employer for damages he sustained in the workplace accident.

Part X of WSIA, like the equivalent provisions in New Brunswick, Nova Scotia and Prince Edward Island, stipulates that a worker may bring an action for damages against his or her employer where the injury occurs (1) by reason of a defect in the condition or arrangement of the ways, works, machinery, plant, building or premises used in the employer's business or connected with or intended for that business, (2) where the worker is injured by reason of the employer's negligence, or (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 Respondents asserted that the waiver signed by Mr. Fleming precluded his action for damages under Part X of WSIA.

Mr. Fleming argued that public policy prevents workers from contracting out of the protection afforded to them by Part X of WSIA and that by allowing Part X employers to require their employees to waive their right to seek compensation would frustrate the public policy goals of workers' compensation legislation. Mr. Fleming argued that the waiver that he signed should be declared void.

The Ontario Court of Appeal commented that the case involved an important question of public policy8 for determination.

The Court of Appeal conducted an extensive overview of workers' compensation legislation. In so doing, the Court of Appeal concluded that the legislation makes absolutely clear that the general scheme providing for no-fault loss of earnings benefits to workers completely displaces all common law rights of action that workers may have against their employer. Part X of WSIA is an exception to this general scheme. The application of Part X is to a small number of workers not employed in either Schedule 1 or Schedule 2 industries. Employers under Part X neither contribute to the insurance fund nor are they liable to pay compensation benefits. An important feature of Part X of WSIA is that the statute provides workers with certain statutory rights of action for damages that abrogate some of the common law doctrines that normally restricted a worker's right to recover9, including permitting the worker to sue the employer for the negligence of the employer, the worker's co-workers, the person for whom work is being done under a contract and any contractors and subcontractors, establishing that contributory negligence by the worker is not a bar to recovery, and eliminating the defence of voluntary assumption of the risk.

The Decision

After examining the legislative intent, the Court of Appeal held that it would be contrary to public policy to allow individuals to contract out of the provisions of WSIA. Thus the waiver signed by Mr. Fleming was found to be void and of no effect, with the result that his action for damages for the injuries he sustained in the go-kart crash could proceed.

In finding that it would be contrary to public policy to allow individuals to contract out of the provisions of WSIA, the Court of Appeal recognized that workers' compensation legislation, like human rights legislation, is enacted for the benefit of the community at large and designed to provide broad protection for workers10. The Court of Appeal opined that a reading of WSIA as a whole could not support an interpretation that the Legislature intended to permit the waiver of the statutory actions created by Part X11.

Lessons for Employers

Accidents with injuries to workers not covered under workers' compensation legislation are rare but they do happen.

In New Brunswick, Part I of the Workers' Compensation Act does not apply to:

  1. persons whose employment is of a casual nature and otherwise than for the purposes of the industry,
  2. persons who play sports as their main source of income,
  3. outworkers,
  4. members of the family of the employer residing with the employer who are under sixteen years of age,
  5. persons employed as domestic servants and
  6. industries excluded by regulation from the scope of Part I of the Act, which would include an industry that throughout the year of its operations has less than three workers at the same time usually employed and the fishery industry except for undertakings in which twenty-five or more workers are at the same time usually employed12.

Plaintiffs' counsel, defence counsel, insurers and insurance adjusters need to be aware of the applicable provisions of the workers' compensation legislation in their jurisdiction. The legislation alters traditional common law negligence principles and arguably gives an injured worker an advantage in the litigation by eliminating contributory negligence, voluntary assumption of risk defences, and permitting an expanded scope of potential parties to sue. Further, with the Fleming v. Massey decision, the Ontario Court of Appeal has confirmed that as a matter of public policy, parties cannot contract out of these provisions. Therefore, any waiver or release of liability that the parties might previously have negotiated will be void and of no effect.

All of the above suggests that if you are an employer that is otherwise excluded from the coverage afforded by the workers' compensation legislation in your jurisdiction, it might be worthwhile to consider applying for voluntary workers' compensation coverage. In New Brunswick, voluntary coverage is an option, albeit on such terms and conditions and for such period of time as WorkSafe NB may determine13. Voluntary coverage is also available in Nova Scotia14 and Prince Edward Island15.


1 2016 ONCA 70
2 1997, S.O. 1997, c. 16 Sched. A
3 Part II Sections 86 to 88 Workers' Compensation Act SNB c. W-13
4Part I Sections 221 to 223 Workers' Compensation Act SNS 1994-95 c. 10
5 Part II Sections 87 to 90 Workers' Compensation Act RSPEI 1988 c. W-7.1
6 Item 1 at para. 2
7 Ibid at para 6
8 Ibid at para. 11
9 Ibid at paras. 24 and 25
10 Ibid at para. 34
11 Ibid at para. 46
12 Subsection 2(3) and 6 of the Workers' Compensation Act and subsections 3(1) and 3(2) of New Brunswick Regulation 82-97 under the Workers' Compensation Act – Exclusion of Workers Regulation – Workers' Compensation Act
13 Subsections 4(1) and 4(2) of the Workers' Compensation Act
14 Subsection 4(1) of the Workers' Compensation Act (NS)
15 Subsection 2(3) of the Workers' Compensation Act (PEI)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.