Can an employee contractually waive his right to sue his employer if he gets injured as a result of a workplace accident? That is to say, will a waiver signed by an employee actually prevent an employee from suing his employer in negligence?
In a decision released January 26, 2016, by the Court of Appeal for Ontario, Fleming v. Massey, (2016), 128 O.R. (3d) 401, 2016 ONCA 70, the answer was “No, an employee cannot contract out of the right to sue his employer in negligence.”
On October 3, 2010, Lombardy Karting and the National Capital Kart Club held a go-kart event. During such events, a race director is required. Since the regular race director was not available, the plaintiff Derek Fleming filled the role. Mr. Andrew Massey was driving a go-kart that day and crashed into hay bales lining a corner of the track. Mr. Fleming was injured in the accident. The defendants (respondents on appeal) argued that the plaintiff, Mr. Fleming (the appellant on the appeal) had signed a waiver releasing them from liability for all damages associated with participation in the event due to any cause, including negligence.
The parties agreed that Mr. Fleming was not an insured worker under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. That is because go-kart tracks are classified as “non-covered” by the Workplace Safety and Insurance Board (“WSIB”) and workers at such facilities are not insured unless the employer has applied for coverage. The track has not applied for coverage. Consequently, the track and Mr. Fleming fall under Part X of the Act.
On November 17, 2014, the Honourable Justice Richard G. Byers of the Superior Court of Justice found that: (a) Mr. Fleming was not an “employee” but rather a volunteer who received a stipend; (b) Mr. Fleming signed the waiver; (c) Mr. Fleming knew generally what signing the waiver would mean; and that (d) the wording of the waiver was broad enough to cover all eventualities. Mr. Justice Byers dismissed Mr. Fleming's case.
On appeal the Court of Appeal for Ontario found that Mr. Fleming was, in fact, an employee at the time he was injured – a fact that had been admitted by the defendants.
Justice Juriansz, writing for the Court of Appeal, noted that workers who fall under Part X of the WSIA, unlike insured workers, are allowed to sue their employers for workplace accidents. Section 114 of the law makes it clear that “A worker may bring an action for damages against his or her employer for an injury that occurs in any of the following circumstances… The worker is injured by reason of the employer’s negligence.”
On appeal, Mr. Fleming argued that public policy prevents workers from contracting out of the protection afforded by s. 114. That public policy, explicitly stated in s. 1 of the Act, includes ensuring employees injured in workplace accidents receive compensation. Mr. Fleming submitted that allowing Part X employers to require their employees to waive their right to seek compensation would frustrate this public policy goal.
Before issuing the court’s decision in the case, Justice Juriansz provided a very helpful summary of the history of workers’ compensation and the reasoning behind the provision of workers compensation legislation. As Justice Juriansz noted at paragraph 20 of the court’s reasons for decision, “The common law’s treatment of workplace injuries meant a great many workers and their survivors were unable to recover medical expenses, lost wages or damages. Workers voluntarily assumed the ordinary risks of their employment.”
After reviewing the history and the purpose of the current incarnation of the WSIA, Justice Juriansz concluded as follows:
 In my view, absent some legislative indication to the contrary, it would be contrary to public policy to allow individuals to contract out of the protection of the WSIA.
 I recognize that the courts should exercise extreme caution in interfering with the freedom to contract on the grounds of public policy. Considering the sweeping overriding of the common law made by workers’ compensation legislation and the broad protection it is designed to provide to workers in the public interest, it would be contrary to public policy to allow employers and workers to contract out of its regime, absent some contrary legislative indication.
 Other than for ss. 16 and 116(1), there are no other provisions of the WSIA that could be taken to indicate a legislative intent to permit individuals to contract out of the statute’s provisions. There being no legislative indication to the contrary, I conclude it would be contrary to public policy to allow individuals to contract out of the provisions of Part X of the WSIA.
As a result, the court set aside the order of the motion judge granting summary judgment and allowed Mr. Fleming’s action to proceed to trial.
Takeaways for Employees with Labour Pains
It is important to note that the employee in this case was not covered by the WSIB. Had the employee had access to WSIB coverage, then he would have been required to employ that regime and would not have been legally permitted to sue his employer.
This employee, not being covered by the WSIB, did have the right to sue his employer and the court has now very clearly said that an employee cannot legally contract out of that right.
Thus the clear takeaway for employees injured in workplace accidents is: If you get injured in a workplace injury speak with a lawyer, even if you signed a contract saying that you would not sue your employer if you get injured.
If you are an individual looking for assistance with respect to your workplace injury, the professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP would be happy to be of service to you.
Takeaways for Employers with Labour Pains
The clear takeaway from this case for employers is that contracts ostensibly waiving or limiting liability in the event of a workplace injury are not going to work. As a result, employers would be prudent to look at other ways of protecting their interests, including voluntary WSIB insurance coverage.
If you are an employer and would like assistance with respect to your workplace health and safety matters, the professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP would be happy to be of service to your business or organization.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260.--
As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.
Sean P. Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer practicing with Kelly Santini LLP. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.