Court File and Parties

COURT FILE NO.: CV-16-119-SR DATE: 2019-12-13 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: DANIEL EYNON, Plaintiff AND: SIMPLICITY AIR LTD., Defendant

BEFORE: The Honourable Robert B. Reid

COUNSEL: P. Hosack, Counsel, for the Plaintiff D. Green, Counsel, for the Defendant

HEARD: December 2, 2019

decision on motion

[1] At the opening of trial in this negligence action, the defendant sought a ruling restricting the basis of the tort claim to the plaintiff’s status as an invitee on the premises of the defendant.

[2] The plaintiff sought to frame the case on the basis of a breach of the defendant’s standard of care both as an occupier under the Occupiers Liability Act (the “OLA”) and as the employer of the plaintiff.

[3] At the conclusion of submissions and before the plaintiff’s opening address, I ruled orally that the plaintiff could proceed alleging a breach of the standard of care applicable to an employer as well as to an occupier. I advised that written reasons would follow. These are those reasons.

Background:

[4] The plaintiff suffered an injury on December 12, 2014 on the premises of the defendant. He chose to climb a chain hoist used as a lifting device. His actions could be characterized as horseplay.

[5] At the time of the injury, the plaintiff was an employee of the defendant. He had been working for the defendant on that day but, at the time of the injury, was not actively engaged in a task.

[6] The plaintiff pleaded the provisions of the OLA in the statement of claim, alleging that the defendant was an occupier. The defendant also pleaded the provisions of the OLA in the statement of defence.

[7] In the statement of claim, the plaintiff included allegations against the defendant based on the employment relationship. The plaintiff pleaded that the defendant was negligent based on:

• failing to take reasonable precautions to prevent an accident;

• failing to properly supervise its employees;

• failing to ensure that the place of employment was maintained in a safe manner;

• failing to provide proper safety training to its employees;

• failing to provide adequate warnings or precautions to alert users of the equipment of the dangers of the equipment; and

• failing to ensure that its supervising employees carried out their supervisory responsibilities properly.

[8] Clearly the case was proceeding to trial, in part, on the basis of an alleged breach of the standard of care owed by employers to employees.

[9] In the statement of defence, the defendant pleaded that the plaintiff had no right of action against the defendant because of the provisions of the Workplace Safety and Insurance Act (the “WSIA”) and in particular s. 28(1).

WSIB ruling:

[10] The plaintiff applied to the Workplace Safety and Insurance Board (the “WSIB”) to determine his eligibility for benefits relating to the injuries suffered. In that application, he indicated that there was no work-related reason to climb the chain hoist and that his actions were not related to the performance of his regular job duties.

[11] Pursuant to s. 28(1) of the WSIA, a worker is not entitled to commence an action against a Schedule 1 employer (which includes the defendant) if the worker was injured while acting in the course of his employment.

[12] For the purpose of determining entitlement to benefits under the WSIA, s. 118(2) gives the WSIB exclusive jurisdiction to determine, amongst other things, whether an accident arose out of or in the course of employment by a Schedule 1 employer. The decision of the Board is final and is not open to question or review in a court.

[13] On December 17, 2014, the plaintiff was advised by a WSIB adjudicator that, since at the time of the injury he was not acting in the course of his employment, he was not entitled to benefits. The plaintiff did not appeal that decision to the Workplace Safety and Insurance Appeal Tribunal within the permitted six months.

[14] The defendant admitted that, as a result of the WSIB ruling, the plaintiff did have a right of action against the defendant.

Analysis:

[15] There are relatively few modern court decisions in Canada dealing with negligence claims by employees against employers arising from personal injuries. This is directly related to the prevalence of workers’ compensation schemes such as that set out in the WSIA for Ontario.

[16] Despite the rarity of the cases, scholars are consistent in ascribing a duty of care to employers for the benefit of employees under the common law. See for example The Law of Torts in Canada (Third Edition)[^1] at page 571. The defendant submitted that the ruling by the WSIB adjudicator that the plaintiff was not engaged in the course of his employment at the time of the injury was conclusive. Therefore, it submitted that the plaintiff could not maintain a civil claim based on his status as an employee but only as an invitee of the defendant.

[17] There is no dispute that the plaintiff was removed from the statutory regime of the WSIA by virtue of being injured when he was not in the course of his employment. He was conclusively not entitled to benefits. However, the adjudicator’s decision does not negate any common-law rights that the plaintiff may have to claim damages for negligence against the defendant as his employer. In fact, a claim that would otherwise have been precluded by the operation of s. 28(1) of the WSIA becomes available directly as a result of the adjudicator’s ruling.

[18] The defendant submitted that the plaintiff would be attempting to question or review the conclusive decision of the adjudicator by leading evidence related to the employee- employer relationship. I disagree.

[19] The status of the plaintiff as an employee has never been in doubt. In fact, it is pleaded by the defendant. While the WSIA carves out the ability of an employee to sue an employer in favour of the workplace insurance scheme contained in that Act, it does not go so far either explicitly or implicitly as to remove any causes of action not expressly precluded.

[20] Therefore, I ruled in advance of the trial, that the plaintiff was not restricted from posing any questions to witnesses related to the employer-employee relationship between the parties or to make submissions about the duty of care and standard of care owed by an employer to an employee in the circumstances.

Reid J.

Date: December 13, 2019

[^1]: G.H.L. Fridman, Carswell, a Division of Thomson Reuters Canada Limited, 2010