Canada: Employment Injuries: Is The Workers' Compensation Board The Only Recourse?

1) INTRODUCTION

In Quebec, no fewer than 224 workers are injured every day on average1 in a multitude of different situations: a teacher is physically assaulted by a student; a newspaper deliverer suffers a fall in the poorly maintained entranceway of a customer; a construction worker is injured due to a crane operator's negligence; a receptionist is harassed by her boss.

It is easy to envision that an injured worker can seek compensation from Quebec's workers' compensation board, the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST"). But can the worker also sue the person responsible for his or her injuries in court, for damages? Can the worker do both?

In this article, we will identify the situations where the injured worker can bring a civil suit, notwithstanding the near-absolute immunity afforded employers by the Act respecting Industrial Accidents and Occupational Diseases2 ("IAODA").

2) THE REGIME UNDER THE ACT RESPECTING INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES

One of the cardinal principles of the IAODA regime is that the injured worker will be indemnified regardless of who, if anyone, was at fault3. Thus, when an injury is covered by IAODA, the worker will be compensated no matter who was at fault, unless the accident is due solely to his or her gross and wilful negligence, except where the accident causes death or severe permanent physical or mental impairment4.

This Quebec regime of occupational health and safety compensation thus constitutes a social "compromise"5 or "pact"6 whereunder the worker may not bring a civil liability suit against his or her employer on account of the injury. Whence the absolute immunity afforded the workers' employers by section 438 of IAODA.

The IAODA regime applies to every Quebec worker who suffers an industrial accident and whose employer had an establishment in Quebec when the accident occurred7.

Under the Act, a "worker" is "a natural person who does work for an employer for remuneration under a contract of employment or of apprenticeship"8. An employer is defined as "a person who, under a contract of employment or of apprenticeship, uses the services of a worker for the purposes of his establishment".

It should be borne in mind that even where a Quebec employer fails to pay the required assessment into the IAODA regime, the workers in its employ may nevertheless submit a claim to the CNESST.

Section 2 of the Act defines an "industrial accident" as "a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him". An injury that arises "out of or in the course of" one's work will deemed to be an employment injury, whether the injury is physical or psychological in nature9.

A worker who seeks to be compensated under the IAODA must generally file a claim with the CNESST within six months after the injury10.

When the conditions provided for in the IAODA are met and the accident is covered by the regime, if the worker is unable to carry on his or her employment because of the injury, he or she will receive an income replacement indemnity equal to 90% of his or her net income11. It is also important to note that the Act provides for a maximum insurable annual salary, such that a worker whose income exceeds that maximum salary will only receive compensation corresponding to 90% of the maximum insurable annual salary provided for by the Act.

In addition, where a worker sustains a bodily injury as a result of an industrial accident, he or she is entitled to a lump-sum indemnity calculated in accordance with the table of bodily injuries used by the CNESST12.

The advantages and benefits associated with the statutory regime are numerous, including the exemption from the obligation to prove fault, speedy access to compensation for workers and the absence of any costs associated with obtaining compensation.

The principal downside of the regime is that the compensation amounts paid out by the CNESST, whether for bodily injury or income replacement, may be far less than those awarded by the civil courts for identical injuries or harm.

For it must be borne in mind that the income replacement indemnity is determined by the CNESST in accordance with the employment income earned by workers during the twelve months preceding the occurrence of the injury, or the remuneration provided for in the employment contract, but only up to the maximum annual amount determined by regulation.

It should also be noted that, apart from modest indexation, the CNESST does not take into account career-advancement possibilities for injured workers. One need only consider the example of a university student who becomes permanently disabled in the course of a low-paying summer job to understand that the indemnity paid by the CNESST will never be able to compensate some individuals' actual loss.

Despite the foregoing, civil liability suits are not completely excluded in cases of employment injury. In fact, a civil suit is possible in certain cases specified in the IAODA.

3) CIVIL ACTIONS FOR DAMAGES

Actions for damages before the civil courts are governed by the Code of Civil Procedure13, which is more constraining than the regime under the IAODA. The civil liability rules applicable to actions of this nature require proof by the victim of a fault, harm, and a causal link between the fault and the harm14. In this regard it should be noted that the burden of proof required for proving a fault is generally quite heavy for a worker. In addition, the ensuing adversarial debate generally involves significant costs for the worker.

In exchange however, civil suits offer the not inconsiderable advantage of being able to recover a much greater amount of compensation to compensate the harm effectively incurred (rather than in accordance with the table of bodily injuries and the maximum insurable salary under IAODA). It should also be noted that the three-year time limit for filing a civil claim is much more generous than the time-limit for filing a claim under the Act.

It should be added however that no compensation will be awarded for an injury – in whole or in part – if the worker is found to have been at fault.

a. Who can be sued?

  • The employer

As previously mentioned, the Act provides the employer of a worker who suffers an employment injury with absolute immunity, even where the worker does not file a claim with the CNESST15. Thus, a worker who is the victim of an employment injury cannot bring a civil liability suit against the employer on account of his or her injury16. This immunity applies to both financial harm and bodily injury, as well as to claims for moral and punitive damages17.

The Act provides for certain exceptions where an employer, other than the employer of the injured worker, may be sued in civil court following an industrial accident. These exceptions are listed in section 441 of the Act. Under that section, a worker may for example sue an employer other than the worker's employer if such employer has committed an offence within the meaning of the Criminal Code, or in order to recover the amount by which the loss sustained exceeds the benefit received under the Act.

  • Co-workers

Section 442 of IAODA prohibits a civil liability action against a co-worker or a mandatary of the employer for a fault committed in the performance of his or her duties. Thus, outside of this narrowly defined category, a civil suit against a co-worker is possible.

This will be the case for example where a worker is physically assaulted by a colleague at a party organized by the employer for its clients, after normal working hours18. Such conduct may also give rise to compensation under the Act as it occurred in the course of the victim's work, within the meaning of section 2 of IAODA, but also to a civil right of action against the co-worker who was at fault. Moreover, in such situations the employer may have this injury removed from its financial file with the CNESST, by establishing that a third party was liable for it19.

  • Third parties

From the statutory provisions canvassed above, it is evident that the legislator will allow a worker to bring a civil suit against any person other than the worker's employer, another employer subject to the Act or a co-worker. Third parties thus cannot claim any immunity from being sued. This would be the case for example of a worker bitten by a dog while he or she was cleaning, on behalf of his or her employer, the house of a client who owned the animal in question20.

b. Possible civil claim for excess (s. 445 IAODA)

Where a civil suit is possible and the worker chooses to file for compensation under the IAODA, it is possible to bring a civil suit against the person at fault for the amount by which the loss sustained exceeds the benefit received under the Act21. A worker who may bring a civil action must elect to do so and notify the CNESST within six months of the industrial accident.

c. Election (ss. 443-444 IAODA)

A worker who may bring a civil action must elect to do so and notify the CNESST within six months of the industrial accident22 using the prescribed form. If the worker fails to make the election within that period, he or she will be deemed to have renounced the benefits available under the Act.

It is in the worker's interest to make an election and notify the CNESST accordingly because if, following the outcome of the civil action, he or she is awarded an amount less than the benefit available under the Act, the worker will be entitled to file a claim for the difference. Note that the claim must be filed within six months following the final judgment on the civil liability action.

d. Recourse in subrogation of the CNESST (ss. 446-447 IAODA)

The CNESST may bring a civil suit against the person responsible for the employment injury for the amount of benefits it has paid or will be paying, provided that person could have been sued by the worker.

This is because the payment of a benefit to a worker has the effect of subrogating the CNESST to the worker's rights. If the worker has instituted a civil action against the person responsible for the employment injury, this has the effect of interrupting prescription insofar as the CNESST's right of action is concerned.

4) CONCLUSION

It is easy to understand why most claims arising from industrial accidents are submitted to the CNESST. Guaranteed compensation, expeditious handling of claims, and the possibility to be compensated regardless of who was at fault are all contributing factors to this popularity.

However, the option of bringing a civil suit is also attractive where the harm and loss sustained are significant and the defendant has no statutory immunity. And a worker can notably exercise this option after being indemnified by the CNESST, but only for the amount by which the loss sustained exceeds the benefit received under the Act.

Also, as mentioned above, the interest in bringing such an action is all the more evident where the injured worker has an annual income from employment far greater than the maximum amount insurable by the CNESST.

Moreover, electing to bring a civil suit does not deprive the worker of the right to subsequently claim a benefit under the Act when he or she is awarded by the Court a lesser amount than the compensation available under the IAODA. In order to be in a position to make such a claim however, the worker must notify the CNESST of the election within six months following the industrial accident.

It is evident then that an injured worker must act prudently and diligently in order to ensure that his or her claim for statutory compensation is made within the prescribed time limits and in accordance with the formal requirements. The worker will thus be able to benefit – at his or her choice and depending on the circumstances – from the regime under the IAODA, the general civil liability regime, or even both.

Footnotes

1 This represents a total of 81,765 employment injuries during the year 2015. Source: COMMISSION DES NORMES, DE L'ÉQUITÉ, DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL, Annual statistics 2015, Gouvernement du Québec, 2016, on line.

2 CQLR, c. A-3.0001

3 S. 25 IAODA

4 S. 27 IAODA

5 Béliveau St-Jacques v. La Fédération des employées et employés de services publics inc., [1996] 2 S.C.R. 345, par. 114

6 Laflamme v. Latreille, D.T.E. 2004T-580 (C.Q.), par. 29

7 S. 7 IAODA

8 S. 2 IAODA

9 Laflamme V. Latreille, D.T.E. 2004T-580 (C.Q.); Normandin V. Banque Laurentienne du Canada inc., D.T.E. 2010T-439 (C.A.) (Motion for leave to appeal to the SCC dismissed); Skelling v. Québec (Procureur général), D.T.E. 2005T-44 (S.C.) (appeal dismissed) ; Lamontagne v. Rassart, 2000 CanLII 18607 (QC CS)

10 Ss. 270 to 272 IAODA

11 Ss. 44-45 IAODA

12 S. 83 and following, IAODA

13 CQLR c. C-25.01

14 Arts. 1457-1458 Civil Code of Québec

15 Genest v. Commission des droits de la personne et des droits de la jeunesse, J.E. 2001-212 (C.A.) ; Laflamme v. Latreille, D.T.E. 2004T-580 (C.Q.)

16 S. 438 IAODA

17 Supra, note 5

18 Mongrain v. Girard, 2015 QCCS 628, motion for leave to appeal dismissed, 2015 QCCA 623

19 S. 326 IAODA

20 Bernatchez v. Basora, 2014 QCCS 1744

21 S. 445 IAODA. See for example Mongrain v. Girard, 2015 QCCS 628, par. 4.

22 Where an employer commits a criminal offence, the six-month period begins to run as of the date of the admission of guilt or final conviction (s. 443, par 2 IAODA).

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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