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Injured While at Work? Workers' Compensation Claim or a Tort Action?

Victor Lewin - Thursday, May 08, 2014

The Supreme Court of Canada has recently discussed the issue of whether a person, who has been injured while at work, can bring a workers' compensation claim and/or a tort action. In the case of Marine Services International Ltd. v. Ryan Estate, [2013] S.C.J. No. 44, two fishermen died off the coast of Newfoundland and Labrador when their ship, the Ryan's Commander, capsized while returning from a fishing expedition. The estates of the fishermen commenced the action, after having received compensation under the Workplace Health, Safety and Compensation Act (WHSCA), alleging negligence in the design and construction of the ship. This appeal raised the issue of whether section 44 of the WHSCA barred a negligence action. 

Section 44 of the WHSCA states:

44. (1) The right to compensation provided by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or her dependents are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arises in the course of the worker's employment.

(2) A worker, his or her personal representative, his or her dependents or the employer of the worker has no right of action in respect of an injury against an employer or against a worker of that employer unless the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer.

(3) An action does not lie for the recovery of compensation under this Act and claims for compensation shall be determined by the commission.

The court held that section 44 of the WHSCA applied on the facts of the case. Any employer contributing to a workers' compensation scheme and any worker of such an employer benefits from the statutory bar provided the worker was injured in the course of employment and the injury occurred in the conduct of the operations usual in or incidental to the industry. Section 44, which establishes a no-fault regime to compensate for workplace-related injury, prohibits litigation because compensation has already been awarded.

In Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal, 2005 NSCA 62 at para. 20, the court stated that "[t]he overall purpose of workers' compensation legislation is to take decisions about compensation for workplace injuries out of the tort system and out of the courts". The Act is intended to create a comprehensive scheme for resolving workers' compensation disputes, notably by barring access to the courts in cases covered by the Act (Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 52). The negligence action was dismissed.

Therefore, if an employee is injured while at work and the workplace is covered by the Workers' Compensation, that employee must bring an action through Workers' Compensation and not through the tort system.

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