Highlights of Noteworthy Decisions

Decision 1878 18
T. Mitchinson
  • Right to sue (punitive damages)
  • Right to sue (legal fees)

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away.

The plaintiff was employed by the defendant as a crane operator at a construction site. While operating the crane, the brakes were not working properly, and a worker at the site was killed. The plaintiff and defendant were both charged with criminal negligence under the Criminal Code and with endangering the safety of a worker under the Occupational Health and Safety Act. The charges against the plaintiff were ultimately withdrawn.
The plaintiff brought the action against his employer, claiming reimbursement of his costs in defending the charges under the Criminal Code and OHSA, as well as punitive damages. There were also other claims in the action, but it was agreed that those other claims related to the accident, and that the right of action regarding those other claims was taken away. Thus, this application related to the claims for legal costs and punitive damages.
The historic trade-off underpinning workers' compensation schemes focuses on the relationship between workers and their employers, not workers and other employers. This distinction is reflected in ss. 26(2) and 28 of the WSIA. A worker's own employer and other employers are treated differently. There is broader protection for the worker's employer when dealing with a civil action and a more qualified protection for other employers sued by a worker.
Section 26(2) does not take the nature of the civil claim into account, only whether the action is for reason of an accident happening to the worker while in the employment of the employer. However, not all rights of action are necessarily removed under s. 26(2). For example, claims for wrongful dismissal have been found to survive the bar in s. 26(2) on the basis that they are separate and distinct from the workplace accident.
There was no suggestion in this case that the actions of the employer regarding operation of the crane, and which led to the charges, were outside the employment context. There was also no evidence of wilful or intentional recklessness on the part of the employer.
The Vice-Chair concluded that the legal costs of defending the charges were intrinsically related to the workplace accident that gave rise to the charges. There was no separate or distinct cause of action. The plaintiff's right of action was taken away.
Punitive damages are only available in a tort action if tort liability is established. Since the right of action was taken away, the right to claim punitive damages was also taken away.