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Can you sue your employer for workplace injuries and illnesses?


Many people who suffer a serious workplace accident as a result of the negligence of their employer want to sue for their employers in court for different types of damages, and workers frequently ask us if they can do so. However, the workers’ compensation system in Ontario limits most workers to seeking compensation through this scheme and prohibits them from suing in court. Why is this the case?

The workers’ compensation system in Ontario, administered through the Workplace Safety and Insurance Board (WSIB), is a system referred to as “no-fault” system. This means that workers do not have to show their injury was caused by any fault of the employer and can obtain benefits even if the accident was caused by their own fault. In this system, workers give up their right to sue for damages in court in return for access to benefits on a no-fault basis through the workers’ compensation insurance plan. This “trade-off” is meant to give workers easier access to compensation for losses caused by their workplace injury but removes their right to sue, even when those injuries were caused by an employer’s negligence or violation of occupational health and safety laws.

Prior to workers’ compensation schemes, workers had to sue in court for compensation for workplace injuries. Winning a civil lawsuit in these circumstances necessarily involves proving that your employer committed some kind of legal fault – often negligence. Employers also 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 another 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.

These elements made compensation very difficult to obtain. Major reform was necessary and resulted in the creation of the provincial workers’ compensation boards.

In Ontario the majority of workers are employed by employers insured under a collective liability scheme known as “Schedule 1”. These workers are generally prohibited from suing their own employer for workplace injuries or from suing other employees, directors and officers of their employer. They are also prohibited from suing other employers participating in Schedule 1 or employees, directors and officers of those other employers.

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 their own employment at the time of the accident.

On these limited occasions where a worker has the option of suing in court, the worker must choose between commencing a lawsuit or claiming compensation from the WSIB. There are many complicated details of such an election which are not 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.

Although suing in court might have, in theory, allowed injured workers to get larger damages awards and greater compensation overall than they can through a workers’ compensation scheme, suing can be complicated, costly, and very uncertain and risky. While Ontario’s WSIB system is far from perfect, it’s overall significantly simpler than a lawsuit and has allowed many more workers to obtain compensation for illnesses and injuries.

We are always happy to provide advice and representation for most workplace related matters, including WSIB claims and anything related to health and safety.

Thank you to Simone Truemner-Caron, our Ottawa office’s 2020-21 articling student, for her assistance in the preparation of this post.