Documentation:Torts/Negligence Employment
Negligence in the workplace
The common law recognizes duties of care in the employment context.[1] Before the establishment of workers' compensation schemes, tort law was the primary avenue for injured workers to recover from their employer for workplace accidents.
For most industries today, covering 70–90 per cent of workers, the common law tort system has largely been ousted and replaced by legislation that provides a no-fault compensation scheme for workplace accidents resulting in injury or death.[2]
The scope of employer negligence in common law
Employer-employee relationships
It is well established at common law that employers have a duty to take reasonable care of their employees' safety. Employers must adopt reasonable measures to protect employees from dangers that could inherently arise from the workplace premises or from the tools being used.[1]
When an employer's alleged negligence consists of a failure to act, finding a breach of duty depends on evidence demonstrating that the omission is something commonly done by others in similar circumstances, or the omitted act was "so obviously wanted that it would be folly for anyone to neglect to provide it."[3]
The contractual nature of an employer-employee relationship may be a bar to recovery under certain circumstances. In Piresferreira v. Ayotte, the Ontario Court of Appeal declined to recognize the tort of negligent infliction of mental suffering in the employment context where the duty of care rested on the parties' contractual relationship.[4] Although there was sufficient foreseeability and proximity to make out a prima facie duty, policy considerations negated this duty because employees already have the ability to seek redress in contract law by claiming for constructive dismissal.[5] The Court of Appeal described recognition of the duty as an intrusion by the courts into the workplace, one that would impede efficiency and come with the risk of indeterminate liability.[5]
Policy reasons have also precluded Canadian common law from recognizing negligence in the investigation of an employee. In Luan v. ADP Canada Co, the employer conducted an improper investigation of allegations against an employee, but the Alberta Queen's Bench found that recognizing a duty of care in tort would fundamentally change the landscape of employment law.[6]
Employer-prospective employee relationships
In Armstrong v. Gallagher's Garage, the Ontario Superior Court found that an employer owes a duty of care to a prospective employee who they are assessing for a job, stating that "it makes little sense that the duty of care owed to a prospective employee would be less than that owed to an actual employee."[7] The Court held that the defendant had a duty to take reasonable care of his prospective employee's safety to ensure that she would be reasonably safe on the premises and while participating in the activities carried out on such premises.[8] The standard of care to be considered is the same as that expected in an employer-employee relationship.[9]
Statutory workplace compensation schemes
Although employers owe a duty to employees under the common law, provincial workers' compensation legislation may preclude legal action against employers in personal injury cases. In British Columbia, for example, rather than filing a claim in tort, employees injured in the course of employment seek compensation under the Workers' Compensation Act,[10] which establishes the Workers' Compensation Board of BC (WorkSafeBC).[11] The legislation provides a no-fault workers' compensation scheme, allowing employees to receive coverage regardless of fault.
The no-fault scheme resolves workplace injury claims outside of the court system, which saves judicial resources, streamlines the compensation process, and provides greater certainty of compensation.[12]
Workplace health and safety legislation
| In the news |
|---|
| Maple Leaf Foods fined $170,000 for violation of Occupational Health and Safety Act |
| An apprentice millwright was seriously injured after attempting to repair Maple Leaf Foods' industrial fans at the Brantford, Ontario facility. The company was fined $170,000 for violating Ontario's Occupational Health and Safety Act.[13] |
Employers' workplace obligations and responsibilities are also outlined in provincial health and safety legislation. In British Columbia, the applicable legislation is the Occupational Health and Safety Regulation,[14] which covers sections such as core requirements, general hazard requirements, and industry-specific requirements.[15] Failure to comply with the Occupational Health and Safety Regulation may result in fines, which are made publicly available by WorkSafeBC to deter similar behaviour.[16]
| Legislation |
|---|
| Alberta: Occupational Health and Safety Act, SA 2020, c O-2.2. |
| British Columbia: Occupational Health and Safety Regulation, BC Reg 296/97. |
| Manitoba: The Workplace Safety and Health Act, CCSM c W210. |
| New Brunswick: Occupational Health and Safety Act, SNB 1983, c O-0.2. |
| Nova Scotia: Occupational Health and Safety Act, SNS 1996, c 7. |
| Ontario: Occupational Health and Safety Act, RSO 1990, c O.1. |
| Quebec: Act respecting occupational health and safety, CQLR c S-2.1. |
| Prince Edward Island: Occupational Health and Safety Act, RSPEI 1988, c O-1.01. |
| Saskatchewan: Occupational Health and Safety Regulations, RRS c S-15.1 Reg 10. |
Discussion questions
- Is the reasoning of Piresferreira v. Ayotte[17] compelling that a tort action for negligent infliction of mental suffering in the employment context is unnecessary in light of contractual remedies available to employees? Should the availability of contractual redress preclude employees from succeeding under tort law?
- Does it necessarily follow that an employer’s duty of care owed to a prospective employee must be equivalent to that owed to an actual employee?
- Having regard to statutory workplace compensation schemes, why are employment-related personal injury tort claims likely to be uncommon?
- ↑ 1.0 1.1 Fridman, GHL (2010). The Law of Torts in Canada. Toronto: Carswell. pp. 577–578.
- ↑ Smith, DA (7 February 2006). "Workers' Compensation". The Canadian Encyclopedia.
- ↑ Kauffman v. Toronto Transit Commission, 1960 CanLII 4 (SCC) at 255 citing Paris v. Stepney Borough Council, [1950] UKHL 3 (BAILII) at 382.
- ↑ McMillan v. Canada, 2023 FC 1752 at para 71 citing Piresferreira v. Ayotte, 2010 ONCA 384.
- ↑ 5.0 5.1 Piresferreira v. Ayotte, 2010 ONCA 384 at paras 61–62 .
- ↑ Luan v. ADP Canada Co, 2020 ABQB 387 at para 158.
- ↑ Armstrong v. Gallagher’s Garage Ltd., 2018 ONSC 4347 (§19.6.1) at para 57.
- ↑ Armstrong v. Gallagher’s Garage Ltd., 2018 ONSC 4347 (§19.6.1) at para 59.
- ↑ Armstrong v. Gallagher’s Garage Ltd., 2018 ONSC 4347 at paras 94–95.
- ↑ Workers Compensation Act, RSBC 2019, c 1.
- ↑ WorkSafeBC (20 June 2024). "Our origins". WorkSafeBC.
- ↑ UBC Law Students' Legal Advice Program (2021). "Law Students' Legal Advice Manual". LSLAP: 299 (§12.2).
- ↑ Bron, Sebastian (11 December 2023). "Brantford meat packing plant fined $170,000 for incident that left worker critically injured". The Hamilton Spectator.
- ↑ Occupational Health and Safety Regulation, BC Reg 296/97.
- ↑ WorkSafeBC (20 June 2024). "Occupational Health and Safety Regulation". WorkSafeBC.
- ↑ WorkSafeBC (20 June 2024). "Penalty summaries". WorkSafeBC.
- ↑ Piresferreira v. Ayotte, 2010 ONCA 384.