Almost every employer in every province pays into a workers'
compensation insurance system. This system of no-fault insurance
reflects a historic trade-off whereby workers receive the right to
benefits and employers receive protection from legal action by
injured workers. This protection, or "bar to claims," is
central to the workers' compensation system. Without it,
employers would likely seek exemptions from paying premiums toward
an insurance system that would not, in fact, provide them with
This article briefly explains how employers can ensure they are
protected under the system by being fully aware of "bar to
claims" provisions as well as what constitutes a
Bar To Claims
Every provincial workers' compensation regime contains a
provision that prohibits employees from resorting to a claim in
lieu of benefits available under the workers' compensation
insurance plan. For instance, in Ontario, subsection 26(2) of the
Workplace Safety and Insurance Act, 1997 provides that
entitlement to benefits under the insurance plan is in lieu of all
claims that a worker, a worker's survivor or a worker's
spouse, child or dependant has against the worker's employer or
an executive officer of the employer for an accident involving the
worker, or an occupational disease contracted by the worker, while
in the employment of the employer.
What Constitutes A Compensable
Despite this statutory protection, employers are often unaware
of the breadth of coverage and are unclear as to what constitutes a
compensable injury under the applicable provincial workers'
compensation legislation. For instance, an assault (including a
sexual assault) that arises out of or during the course of
employment may be a compensable injury under most workers'
compensation systems. In addition, an employer can expect
protection from civil actions not only from its workers who sustain
a compensable injury, but also from workers of other employers with
whom its own workers interact.
Despite this breadth of coverage, many employers fail to
identify such incidents as compensable workplace injuries covered
by their workers' compensation insurance plan. Failure to make
such an identification can have costly consequences. An employer
could find itself immersed in a multi-million dollar law suit for
vicarious liability arising out of a workplace incident, such as an
assault or battery, even though this civil action may be barred by
the workers' compensation legislation. An employer can avoid
the cost of litigation and any ensuing damages by identifying from
the outset that the incident was a compensable workplace injury
under the workers' compensation system.
Lessons For Employers
In light of the potential costs associated with such civil
actions, employers must properly identify whether a workplace
incident constitutes a compensable injury under their applicable
workers' compensation system. The following tips should assist
you in making this determination:
Assess each incident arising out of and during the course of
employment to determine whether it could constitute a compensable
injury under your provincial workers' compensation legislation.
In making this assessment, refer to the legislation and operational
policies associated with the legislation and consult with your
provincial workers' compensation board.
When in doubt about whether an incident is compensable, file
the claim with the workers' compensation board within the time
periods prescribed and let them make the final determination. Every
workers' compensation scheme mandates that compensable injuries
arising out of and during the course of employment must be reported
in a timely manner. As such, it is better to error on the side of
If you are served with a Statement of Claim in a civil action
arising from an assault, battery, sexual assault or harassment
claim, consult with legal counsel and determine whether the civil
action is barred under your provincial workers' compensation
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
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).