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An empler-funded statutory scheme by which workers are entitled to be compensated for wages lost as a result of workplace accidents or disease, without having to demonstrate negligence or fault by the employer.

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WHMIS (workplace Hazardous Materials Information System

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WHMIS (workplace Hazardous Materials Information System

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A system required by occupational health and safety statutes to label toxic substances in the workplace, and to educate workers about how to properly handle such substances

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Minimum legislative standards are set out in legislation to which employers and employees are bound, dealing with such issues as minimum wages, vacation pay days, notice of termination etc.

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A legal relationship, based in a contract that is sometimes referred to as a contract service, and that is distinguished from independent contracting or a contract for vices.

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Andrew Massey v. Derek Fleming

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Ontario Court of Appeal ruling: employee who signed a waiver can still sue employer

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On January 26, 2016, the Ontario Court of Appeal released its decision in Fleming v Massey. The case involves an employee who has sued his employer and others for damages after he was injured volunteering at a go-kart event. The decision addresses important questions regarding when employees can sue their employers for damages arising from workplace injuries.

The WSIA Regime

Pursuant to the Workplace Safety and Insurance Act ("WSIA), most employers in Ontario (i.e. "covered" employers) are insulated against lawsuits from their employees claiming damages arising from a workplace injury. In exchange for this insulation, covered employers must contribute to a statutory insurance fund created by the WSIAand administered by the Ontario Workplace Safety and Insurance Board ("WSIB") and, in some cases, employers are liable to pay benefits under the insurance plan. Likewise, in exchange for foregoing their rights to sue their employers, employees employed by covered employers who sustain damages as a result of a workplace injury are able to claim benefits from the WSIB. This arrangement is known as the "historic tradeoff".

However, there are some employers that are not covered by the WSIA (i.e. "non-covered" employers). These non-covered employers neither contribute to the insurance fund nor are liable to pay benefits, unless they have applied for optional coverage. Likewise, the employees of non-covered employers are not able to claim benefits from the WSIB unless their employer has applied for optional coverage. Rather than leave employees of non-covered employers with no recourse following a workplace accident, Part X of the WSIA (and, in particular, section 114)provides those workers with statutory rights of action against their employers to recover damages arising from a workplace injury.

The Fleming Decision

Derek Fleming was acting as "race director" at a go-kart event. Prior to accepting his responsibilities as "race director", Mr. Fleming had signed a waiver releasing the event organizers, the track owner and event participants from liability for all damages associated with participation in the event due to any cause, including negligence.

Unfortunately, Mr. Fleming was injured when a go-kart crashed into hay bales lining a corner of the go-cart track.

Go-kart tracks are not covered by the WSIA, and the go-kart track had not applied for optional coverageunder the WSIA. Accordingly, Mr. Fleming sought to sue the event organizers, the track owner and the operator of the go-kart that crashed (collectively, the "Defendants") for damages arising from his injuries.

In response, the Defendants sought to rely upon the waiver that Mr. Fleming had signed, and brought a motion to dismiss Mr. Fleming's action on account of the waiver. The motion judge in the Ontario Superior Court agreed with the Defendants, finding that the waiver signed by Mr. Fleming was enforceable and barred Mr. Fleming from recovering damages from the Defendants.

As part of the motion judge's decision, the motion judge concluded that Mr. Fleming:

1. was not an employee but rather a volunteer who received a stipend, and

2. had signed the waiver knowing generally what signing the waiver meant and that the wording in the waiver was broad and would cover almost all eventualities.

Mr. Fleming appealed, arguing that he was an employee and that, for public policy reasons, the waiver he had signed should not be enforced.

The Ontario Court of Appeal unanimously agreed with Mr. Fleming, concluding that he was an employee and that the waiver "should be declared void given the importance of the public policy in favour of workers' compensation". In reaching that conclusion, the court stated:

"[...] the courts should exercise extreme caution in interfering with the freedom to contract on the grounds of public policy. Considering the sweeping overriding of the common law made by workers' compensation legislation and the broad protection it is designed to provide to workers in the public interest, it would be contrary to public policy to allow employers and workers to contract out of its regime, absent some contrary legislative indication."

The court was not able to find any legislative intent to the contrary. Instead, the court considered the objective of the WSIAas a whole - "to ensure that injured workers have access to compensation." To that end, the court concluded that "it would be contrary to public policy to allow individuals to contract out of the provisions of Part X of the WSIA."

Therefore, the Court of Appeal set aside the motion judge's order granting summary judgment, and the court allowed Mr. Fleming's action against the Defendants to proceed to trial.

The court ruled that where the employer:

1. is classified as "non-covered" by the WSIB; and

2. has not applied for optional coverage under the WSIA

an employee of that employer cannot waive, or contract out of, his/her right to sue that employer for a workplace accident.

Takeaways for employers

Following this Ontario Court of Appeal decision, employers should be mindful of the following:

Ontario courts will not give weight to an employee's waiver of the right to sue his or her employer for a workplace accident.

Employers that do not have insurance coverage for injuries sustained by their employees may be directly liable to their employees for damages sustained as a result of a workplace injury.

Employers that are not covered by WSIAinsurance may want to consider:

1. applying for optional coverage from the WSIA; or

2. obtaining private insurance (e.g. short-term disability, long-term disability, general liability, etc.) to cover damages sustained by employees as a result of workplace injuries.

Employers may be held liable for damages sustained by individuals who are not viewed as employees (e.g. volunteers, contractors, etc.), and should ensure that appropriate measures are implemented to mitigate against risks of liability related to those individuals.

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Ontario Court of Appeal ruling: employee who signed a waiver can still sue employer | | Insights | DLA Piper Global Law Firm

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On January 26, 2016, the Ontario Court of Appeal released its decision in Fleming v Massey . The case involves an employee who has sued his employer and others for damages after he was injured volunteering at a go-kart event. The decision addresses important questions regarding when employees can sue their employers for damages arising from workplace injuries.

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Contracts - Employment law, Workers' compensation.

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Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Contracts - Waivers - Employment law - Workplace safety - Workers' compensation - Scope of Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16, Sched A ("WSIA") - Whether individuals not subject to general scheme of WISA can contract out of provisions applicable to uninsured workers - When will public policy apply to prevent employees or volunteers from contracting out of workplace safety legislation - Do public policy concerns associated with workplace safety legislation outweigh the public interest in the enforcement of contracts - Do waivers that bar recovery for participants apply differently to volunteers or employees - How can courts distinguish between various types of participants and does receipt of a nominal sum bring the WSIA into play - Workplace Safety and Insurance Act, 1997, S.O. 1997 c. 16, Sched A., s. 114.

Derek Fleming brought an action in which he seeks damages for injuries suffered at a go-kart race on October 3, 2010, at which he was the race director and received a $150 stipend. Andrew Massey was driving the go-kart which crashed into hay bales lining a corner of the track and injured Mr. Fleming. On a motion for summary judgment, the applicants argued that the Mr. Fleming had signed a waiver releasing them from liability for all damages associated with his participation in the event due to any cause, including negligence.

The Ontario Superior Court of Justice granted the applicants' motion for summary judgment, dismissing the respondent's action. The Ontario Court of Appeal allowed the respondent's appeal, setting aside the order of the motions judge, and allowed the action to proceed to trial.

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Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

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Andrew Massey, et al. v. Derek Fleming, 2016 CanLII 33997 (SCC)

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Andrew Massey, et al. v. Derek Fleming, 2016 CanLII 33997 (SCC)

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Ontario workers can’t waive their rights to sue their employers – and SCC says no appeal

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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.

Shortly thereafter, the defendants in the case filed a request for permission to appeal that decision to the SCC, but last month, their request was dismissed ( 2016 CanLII 33997).

[This post first appeared on the Van Dyke Law Office Blog]

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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.

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Duty of Employers to their Employees Part 2 Occupational Health and Safety Act

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Duty of Employers to their Employees Part 2 Occupational Health and Safety Act

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In this video, Part 1 of 2; I share the General Duties of Employers to their Employees as legally required by the Occupational Health and Safety Act under section 8.

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Duty of Employers to their Employees  Part 2 Occupational Health and Safety Act

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Duty of Employers to their Employees Part 1. Occupational Health and Safety Act

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Duty of Employers to their Employees Part 1. Occupational Health and Safety Act

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In this video, Part 1 of 2; I share the General Duties of Employers to their Employees as legally required by the Occupational Health and Safety Act under section 8.

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Duty of Employers to their Employees Part 1. Occupational Health and Safety Act

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Ontario Ministry of Labour, Training and Skills Development

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Ontario Ministry of Labour, Training and Skills Development

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Publication: Health and Safety

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This page provides access to the Ministry of Labour's health and safety publications

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The Ontario Employment Standards Act: A Guide Information

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The Ontario Employment Standards Act: A Guide Information

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WHMIS 2015 pictograms enhance the communication of the types of hazards in various hazardous products, ensuring that users recognize the hazards before they begin handling the products. As a result, the standardized pictograms reduce the risks of potential workplace injuries, poisoning or accidental exposures to hazardous chemicals. Moreover, the pictograms significantly reduce barriers to international trade on hazardous products and allow Canada to meet its international obligations. You can learn much more about pictograms via a recognized WHMIS Certification Training program.

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Workplace Hazardous Materials Information System (WHIMIS)

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Workplace Hazardous Materials Information System (WHIMIS)

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The Workplace Hazardous Materials Information System is a Canada-wide system to give employers and workers information about hazardous materials used in the workplace.

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Background

The Workplace Hazardous Materials Information System ( WHMIS) are laws, created in 1988 to:

give employers and workers information about the hazardous products or chemicals they may be exposed to at work

reduce workplace injuries and illnesses

Ontario's WHMIS legislation applies to all workplaces except farms.

Under WHMIS information on hazardous products must be delivered in three ways:

1. labels on the containers of hazardous products

2. safety data sheets, in addition to the label, with detailed hazard and precautionary information

3. worker education programs

Suppliers of hazardous products must label their products and give safety data sheets before they sell or import them.

Employers must pass the information about workplace hazardous products on to their employees and provide worker education programs.

Changes to WHMIS

WHMIS, now known as , has changed to:

adopt new international standards for classifying hazardous workplace chemicals and giving information and safety data sheets

classify hazardous products into two broad hazard groups, physical hazards and health hazards

update the information on labels to include pictograms, instead of symbols, to match hazard classes and make them easier to understand

update the format of safety data sheets

update the term "controlled products" to "hazardous products" to be consistent with federal WHMIS legislation

present information in a consistent manner in all safety data sheets, regardless of supplier

ensure that the information that workers and emergency responders need most appears first on labels and safety data sheets

These new standards are part of the Globally Harmonized System for the Classification and Labelling of Chemicals ( GHS) and were phased in across Canada between February 2015 and December 2018.

As of December 1, 2018, all manufacturers, importers, distributors, suppliers and employers transitioned to WHMIS 2015.

Using WHMIS 1988 products

You can still use WHMIS 1988 products, however you must either:

get a WHMIS 2015 compliant label and safety data sheet from the supplier, or

create a workplace label and a WHMIS 2015 compliant safety data sheet

If you need help producing compliant labels and safety data sheets, CANWrite system is available, for a fee, from the Canadian Centre for Occupational Health and Safety ( CCOHS).

Worker education

Employers must ensure that workers are trained on hazardous products before they use them.

The type and amount of training will depend on whether a product is new to the workplace and/or newly classified as a hazardous product.

For information on WHMIS training courses, contact one of our health and safety Association partners.

A generic worker training course is also available online, for a small fee, from the Canadian Centre for Occupational Health and Safety ( CCOHS).

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Workplace Hazardous Materials Information System (WHMIS)

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The Workplace Hazardous Materials Information System ( WHMIS) are laws, created in 1988 to: give employers and workers information about the hazardous products or chemicals they may be exposed to at work reduce workplace injuries and illnesses Ontario's WHMIS legislation applies to all workplaces except farms. Under WHMIS information on

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Occupational Health and Safety Act, R.S.O. 1990, c. O.1

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Occupational Health and Safety Act, R.S.O. 1990, c. O.1

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Ontario/Laws/Statute

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Consolidated laws

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Our staff can't provide legal advice, interpret the law or conduct research. You may be able to obtain assistance from a lawyer or paralegal.

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Know Your Rights (Play list)

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Know Your Rights: The Employment Standards Act - YouTube

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Know Your Rights - Chapter 10 - Filing an Employment Standards Claim

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Employment Standards in Ontario