Case reference: Fleming v. Massey, 2016 ONCA 70
This historical case summary discusses the decision identified above. Later decisions and legislative changes may affect how it applies today. Obtain legal advice about your circumstances.
The plaintiff was injured while working as a go-kart race director when a driver crashed into hay bales lining a corner of the track. The plaintiff had signed a waiver which purported to release his employer from liability for damages associated with participation in the event due to any cause. The plaintiff, who was an employee who fell under Part X of the Workplace Safety and Insurance Act, 1997, sued for damages for personal injuries. The trial judge granted summary judgment dismissing the action based on the waiver. The plaintiff appealed.
Held, the appeal should be allowed.
Absent some legislative indication to the contrary, it would be contrary to public policy to allow individuals to contract out of the protection of Part X of the WSIA. There is no legislative indication to the contrary. While Part X of the Act contains no provision equivalent to s. 16 of the Act, which prohibits waiving the entitlement to benefits under the insurance plan, the canon of construction expressio unius est exclusio alterius did not apply. The objective of the WSIA is to ensure that injured workers have access to compensation. The WSIA employs two different means to accomplish that objective. The first means provides workers with an insurance plan and completely eliminates workers’ civil actions. In the part of the Act dealing with the first means, it was necessary to prohibit only the waiver of benefits under the insurance plan. The second means, Part X, makes numerous changes to the common law to achieve the same statutory objective by providing workers with rights of action for damages. Applying the implied exclusion principle to s. 16 to infer that a worker can waive the rights provided by Part X would fundamentally undermine what the legislature was trying to achieve in Part X. Section 116(1) of the WSIA provides that an injured worker shall not be considered to have voluntarily incurred the risk of injury in his or her employment solely on the grounds that, before he or she was injured, he or she knew about the defect or negligence that caused the injury. Understanding the word “solely” in s. 116(1) to indicate that the legislature intended to allow a worker, by clear waiver, to voluntarily assume the risk of injury does not sit well with s. 116(2), which provides that an injured worker shall not be considered to have voluntarily incurred the risk of injury that results from the negligence of his or her fellow workers. The common law principle was that a servant assumed all of the ordinary risks incident to his or her employment. Section 116(1) must be interpreted as a categorical rejection of the common law approach to the voluntary assumption of risk, rather than as allowing workers to contract out of Part X.
*source: Ontario Reports
