2018 saw a number of developments in employment and labour law. Below, we provide a summary of the top 10 Canadian decisions from the last 12 months that we believe Atlantic Canadian employers should be aware of coming into 2019. Re Lower Churchill Transmission Construction Employers’ Assn Inc and IBEW, Local 1620 (Tizzard) Arbitrator finds […]read more
Casual Worker Permitted to Sue Employer for Injuries Resulting from Workplace Accident
Workers’ Compensation generally operates like a form of insurance in that it provides wage replacement and medical benefits to employees who are injured in the course of their employment. In exchange for this protection, Workers’ Compensation legislation includes a provision that bars all rights and causes of action by an employee against an employer resulting from injuries which arise as a result of employment. The system is therefore beneficial for both employees and employers.
There are, however, situations where the quid pro quo is not applicable. One such example occurred in the case of Eastland Industries Ltd. v. Casey, 2016 NBCA 57. In the case, the Company arranged for two individuals to clear snow off the roof of a building owned by the Company. The building, while owned by the Company, was being used by the owner of the Company to store personal belongings. The Company paid the two individuals cash for what was anticipated to be a one-day job. While performing the work, one of the individuals, Casey, fell through the roof of the building and landed on the cement floor below. He sustained serious injuries and had to undergo surgery. While he was in the hospital, Casey signed a Report of Accident form for the purposes of the Workers’ Compensation Act. The form was submitted to the Workers’ Compensation Commission and Casey was advised that his claim for compensation had been accepted. He received approximately $300 in workers’ compensation benefits.
Casey later filed a legal action against the Company claiming damages for personal injuries on the basis of negligence. The Company asserted that the action was barred as a result of the operation of the Workers’ Compensation Act. The matter was referred to the Workers’ Compensation Commission for a determination as to whether the legal action was barred by the Workers’ Compensation Act. The Commission held that, in light of the fact that Casey had received workers’ compensation benefits, his legal action against the Company was barred.
The decision of the Commission was appealed to the Workers’ Compensation Appeals Tribunal. The Appeals Tribunal held that Casey’s employment with the Company was of a “casual nature”. The evidence established that the building from which the snow was being cleared was owned by the Company but was not being used “for purposes of the industry”. Pursuant to the Workers’ Compensation Act, the prohibition against legal actions by employees against their employers for injuries sustained in employment did not apply to persons whose employment was of a “casual nature and otherwise than for the purposes of the industry”. This decision was appealed by the Company.
The matter proceeded to the New Brunswick Court of Appeal where the decision of the Appeals Tribunal was upheld. There was no dispute that Casey’s employment was of a “casual nature”. The work being done was not “for purposes of the industry”. Accordingly, the bar to legal action against the employer did not apply. The Court of Appeal noted the novelty of the factual situation at para. 39:
…The statute leaves the door ajar, albeit very slightly, to employee lawsuits for damages against the employer. The cases where the courtroom door is not shut are truly rare.
What This Means for Employers
As noted by the New Brunswick Court of Appeal, it is extremely rare that an employee injured in the course of their employment is permitted to take legal action against his/her employer. This situation can arise when individuals are hired to perform casual work that is not related to the business of the employer. This may include, but is not limited to, tasks such as snow clearing, landscaping, work related to the aesthetics and/or upkeep of the premises, etc. Employers should ensure that employees who are hired to perform such tasks are properly instructed, trained and qualified to perform the work and that the appropriate safety measures are in place and are being adhered to.