- Right to sue (gross negligence)
- Statutory illegality
This right to sue application concerned a civil action commenced by the plaintiff/respondent, who was employed by the defendant company as a warehouse worker. The defendant company retailed new floor coverings such as tiles, vinyl, laminate and hardwood. On June 20, 2022, the plaintiff was asked to file a customer order by the operator of the forklift, when he stood on the forklift blades to retrieve materials and lost his balance. His right leg was pinned under the forklift, resulting in injuries.
The defendants/applicants filed this right to sue application maintaining that the respondent was barred from proceeding with the civil action by virtue of sections 27 and 28 of the WSIA. The respondent filed a Respondent's Right to Sue Statement which took the position that the applicants structured the employment relationship to circumvent immigration law, tax laws and the WSIA. The respondent argued that the actions taken by the applicants in the context of the accident demonstrated gross negligence and intentional misconduct, and that the doctrine of statutory illegality and public policy considerations should apply to negate the application of section 28.The Vice-Chair granted the application. The Vice-Chair found that the respondent was a worker employed by the defendant company, a Schedule 1 employer, who sustained an injury while in the course of his employment on June 20, 2022. His civil action was barred by virtue of section 28(1) of the WSIA.The Vice-Chair agreed with submissions of TCO counsel that negligence and/or recklessness alone is not sufficient to deprive an employer of the protections against civil action afforded by the WSIA. Protections are only removed if the evidence establishes that the conduct in question is not incidental to employment (see Decision No. 1878/18). The Statement of Claim framed the civil action in simple negligence, and the supporting allegations were not consistent with the more serious standard. The Vice-Chair found that the respondent could not rely on the doctrine of statutory illegality as a ground for removing the protections of the right to sue provisions contained in the WSIA. TCO counsel pointed to Decision No. 1896/15, which relied on the modern approach to the doctrine, referring to the Still decision for the proposition that where a contract is expressly or impliedly prohibited by statute, a court may refuse to grant relief to a party when, in all the circumstances, it would be contrary to public policy to do so. The Vice-Chair agreed with the analysis, reasoning and findings of Decision No. 1896/15. The doctrine of statutory illegality was both outside his jurisdiction to consider in the current application or, if within jurisdiction, would not operate to deny the applicants the statutory protection from the respondent's civil action that they are entitled to under the right to sue provisions of the WSIA. The reasons included not having the authority to disregard substantive provisions of a home statute based on a judicially created common law doctrine, and the public policy consequences of voiding an employment contract based on illegality being potentially far reaching and undesirable.