One of the interesting things about working in Ottawa is the number of diplomats that work and live in this city. Their presence serves as a constant reminder of how many diplomats Canada must also send out into the world to do our diplomatic work. As an Ottawa resident I too have friends in the foreign service, one of whom just returned from South America, the other currently on a three-year post to South-Asia.
Unfortunately, being a diplomat does not render one immune from accident or illness. Diplomats working outside of Canada are equally, if not more, likely to be injured or made ill while working abroad. How does the law treat these workers who are injured both at home and abroad?
Government Employees Compensation Act
The Government Employees Compensation Act, R.S.C. 1985, c. G-5 (in French: Loi sur l'indemnisation des agents de l'État) is the federal law that governs compensation for government employees injured in the course of employment.
The Act applies in respect of accidents occurring or a disease contracted within or outside Canada, but does not apply to members of the regular force of the Canadian Forces or of the Royal Canadian Mounted Police.
Employees, spouses (including “common-law partners” as defined), and their dependants are covered by the Act.
Under the Act employees have the right of electing either (1) compensation in accordance with the provisions of the Act; or (2) a lawsuit against someone other than the federal government. The election must be made within three months of the date of the injury and once the election is made it generally cannot be changed. If no election is made, the law presumes that the injured worker has elected to commence a lawsuit against a third party other than the government.
Section 9 of the Act provides that:
Where an accident happens to an employee in the course of his employment under such circumstances as entitle the employee or his dependants to an action against a person other than Her Majesty, the employee or the dependants, if entitled to compensation under this Act, may claim compensation under this Act or may claim against that other person.
Section 12 of the Act confirms that if a lawsuit is going to be commenced, it must be commenced against someone other than the government:
Where an accident happens to an employee in the course of his employment… neither the employee nor any dependant of the employee has any claim against Her Majesty, or any officer, servant or agent of Her Majesty, other than for compensation under this Act.
How the Act is Administered
If an injured worker elects compensation in accordance with the Act, then that worker is paid benefits in accordance with the workers’ compensation program of the province “where the employee is usually employed.” For workers that are usually employed in Ontario that means that compensation is provided in accordance with the Ontario Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A.
Returning to the topic of Canadian diplomats working abroad, section 6 of the Act provides that:
Where an employee, other than a person locally engaged outside Canada, is usually employed outside Canada, the employee shall for the purposes of this Act be deemed to be usually employed in the Province of Ontario.
The impact of section 6 is that if an employee is working in a foreign embassy, high commission or consulate, he or she is generally deemed to work in the Province of Ontario and is therefore entitled to compensation, if injured, in the same way as any other Ontario worker.
Implications of Electing Compensation over Lawsuit
Choosing whether to elect compensation under the Act or a lawsuit is not a decision that should be taken lightly and should only be taken after a thorough review of the facts with a lawyer. However, injured workers contemplating the election should note that if they choose to proceed with a lawsuit and recover and collect less, either on a settlement approved by the Minister or under a court judgment, than the amount of compensation to which the employee or dependants who made the claim are entitled under the Act, then the difference between the amount so recovered and collected and the amount of that compensation must be paid as compensation to the employee or dependants (section 9(2).) What section 9(2) means is that, with the exception of legal fees, there may be no harm in trying a lawsuit. If the injured worker attempts the lawsuit and recovers less than what he or she would have received anyway, then the law mandates that the injured worker be covered up to what he or she would have received had the election originally been made for compensation in accordance with the Act.
Injured workers should also note that if they elect to receive compensation in accordance with the Act, then they assign their rights to the government to sue potential third parties in their name. Where the government is successful in those cases, it is possible that any amount recovered that exceeds the amount provided for under the Act may be paid to the injured worker (sections 9(3) and 9(4).)
Notwithstanding the failsafe provisions of section 9(2), the choice of whether to receive compensation in accordance with the Government Employees Compensation Act or to start a lawsuit against a third party is a decision that should not be lightly taken.
In cases where an employee is injured while working in a foreign country the worker will have to consider what the chances of successfully recovering money from that third party will be before engaging in the costly efforts of a lawsuit in Canada.
Furthermore, given the presumption against compensation in accordance with the Act, where the chances of success against a third party are meager, or where there is no third party against which to commence a lawsuit, workers injured while employed for the federal government would be prudent to confirm their intentions to receive compensation in accordance with the Act in a timely manner.
If you or someone you know has been injured in the workplace while working for the Canadian government either in Canada or abroad and you have been given notice of election in accordance with the Government Employees Compensation Act, then I would be happy to speak with you.
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.
Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer. He tweets from @SeanBawden.