Waiver against lawsuit not enforceable for worker without workers compensation coverage

Ontario employee entitled to sue employer after workplace injury, despite signing a waiver: Court

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, unenforceable.

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 employer argued that a waiver, which the employee had signed, released them from any damages.

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 s. 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 WSIB:

"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 negligence.

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 could proceed.

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 negligence.

For more information see:

  • Fleming v. Massey, 2016 CarswellOnt 924 (Ont. C.A.).
Adrian Miedema is a partner with Dentons Canada LLP in Toronto. He can be reached at (416) 863-4678 or [email protected]. Adrian's discussion of this case also appears in the Dentons blog www.occupationalhealthandsafetylaw.com.

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