Ontario workers can’t waive their rights to sue their employers – and SCC says no appeal
A few months ago, the Ontario Court of Appeal released an important decision related to the rights of workers not covered by WSIB to sue their employers for negligence. And recently, the Supreme Court of Canada said the decision will not be appealed.
In Fleming v. Massey, 2016 ONCA 70, the plaintiff, Derek Fleming, filled in as a race director at a go-kart event. Go-kart tracks are not covered by workers’ compensation and neither the track owners nor the event organizers had applied for any insurance.
When Fleming was injured by a go-kart driver, he sued the driver, the event organizers, the track and the property owners, but the Ontario Superior Court of Justice found that a waiver Fleming had signed applied to the situation, and dismissed his case.
Fleming then appealed that decision, and at the Court of Appeal a unanimous 3-member panel of judges found that public policy and the applicable legislation were designed to ensure that injured employees could receive compensation.
In their reasons, they said that allowing workers to waive their rights provided to them under one part of the Workplace Safety and Insurance Act would “would fundamentally undermine what the Legislature is trying to achieve” in another part.
The effect of this decision was to invalidate the lower court’s dismissal, and Fleming was granted the right to a new trial.