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Can you sue your employer for a workplace injury?

Christine Davies

December 03, 2012

Can you sue your employer for a workplace injury? Christine Davies explains why most employees in Ontario cannot sue

Remember the Australian woman who was injured while having sex on a business trip? She might be able to make a claim for workers’ compensation benefits, but could she sue her employer or the hotel for her injuries?

Whether injured workers can sue for their injuries is a question workers frequently ask, often in cases arising out of very tragic circumstances. Many people who suffer a serious workplace accident as a result of the negligence of their employer want to sue and obtain punitive damages to teach bad employers a lesson.

However, the workers’ compensation system in Ontario is a “no-fault” system – workers do not have to show their injury was caused by the employer’s negligence, and can obtain benefits even if the accident was caused by their own negligence. This system is premised on a “historic trade-off” in which workers gave up the right to sue in return for access to benefits on a no-fault basis through a workers’ compensation insurance plan.

Under the old system, where workers had to sue for compensation, employers had three main defences, known as the “unholy trinity”. First, if the injured worker was partly responsible for the accident, the compensation was reduced because of the worker’s “contributory negligence.” Second, under the “fellow servant” rule, employers were not held liable if the worker’s injuries resulted from the actions of a fellow employee. Finally, the doctrine of “assumption of risk” presumed that employees knew of and accepted the risks of their employment upon hiring, and therefore were not eligible for compensation for their injuries.

Compensation was so difficult to obtain that major reform was necessary. This resulted in the creation of the provincial workers’ compensation boards.

In our no-fault system, the majority of workers in Ontario are employed by employers insured under a collective liability scheme known as “Schedule 1”. These workers are, generally speaking, prohibited from suing their own employer as well as other employees, directors and officers of their employer. They are also prohibited from suing other employers participating in Schedule 1 (as well as the employees, directors and officers of those other employers).

As a result, injured workers cannot usually bring lawsuits for their injuries, even when those injuries were caused by negligence or violations of occupational health and safety laws.

There are some limited exceptions. A worker can sue a “supplier”, which is a company that supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers, even if the supplier is a Schedule 1 employer. For instance, a worker injured by a negligently-designed piece of equipment rented by his employer can sue the manufacturer of that equipment, provided the manufacturer did not also send workers to the job site to operate the equipment.

Injured workers can also sue individuals that are not employees and companies that are not employers. For instance, a truck driver who is injured in the course of employment in a motor vehicle accident after colliding with another car would not be prevented from suing the other driver (assuming the driver was not in the course of employment at the time of the accident).

When a worker has the option of commencing a lawsuit, the worker must choose between commencing a lawsuit or seeking benefits from the WSIB (there are many complicated details of such an election which will not be reviewed here).

Some workers in Ontario, mostly government employees, are employed under a different scheme known as “Schedule 2”. These workers are similarly prohibited from suing their own employer as well as other employees, directors and officers of their employer. However, they do not face the prohibition against suing other employers or employees, officers and directors of other employers.

So what about the employee injured by the falling light fixture in a hotel while having sex? Could she sue the hotel?

For most Ontario employees in a similar situation, the answer is probably not. It is likely that the injured worker’s employer and the hotel would both be covered under the insurance plan under Schedule 1. Consequently, most workers would likely be limited to claiming benefits from the WSIB for such an injury. However, if the employee was employed by a Schedule 2 employer, she would probably have the option of suing the hotel for her injuries instead of claiming WSIB benefits.


Christine Davies

Practice Areas

Employment Law, Labour Law