Worker Could Sue Executive Officer for Massage, but Not Employer

by & Christina Catenacci

The Workplace Safety and Insurance Appeals Tribunal recently decided (Decision No. 727 13) that an employee was not allowed to sue her employer in court because the workers’ compensation regime prevented it. However, the employee was allowed to sue the executive officer of the employer who allegedly assaulted her because he was not acting in an employment-related capacity regarding the conduct that was subject to the civil action. This case sets a standard for determination of whether a worker’s right of action is taken away against an executive officer of the worker’s employer.

Facts of the case

The worker alleges that while attending a meeting in the board room, the executive officer of the employer approached the worker and manipulated or massaged the worker’s neck without her consent. She claims that by doing so, the executive officer committed an assault and battery upon her, causing her personal injury.

The executive officer, known to be a physically demonstrative individual, denied manipulation but admitted that he did give a massage to the employee.

The employee had a medical condition affecting her shoulder prior to this event, but she alleges that the executive officer’s actions caused a neck injury which was not present before.

As a result, the worker launched a civil action against both her employer and the executive officer of the employer.

Decision

The main question here was whether the civil action could even take place.

The employer and executive officer of the employer argued that section 26(2) of the Workplace Safety and Insurance Act takes away the employee’s right to sue. The section describes the “historic trade-off,” which entitles workers’ compensation benefits in lieu of all rights of action against their employers for work-related injuries. Because the incident happened to the worker in the course of work, they argued, she had no right of action against the employer or executive officer of the employer.

Although the tribunal found that the executive officer did not act with an intention to cause injury, this is not necessarily determinative of the outcome of the application. The tribunal decided:

The employee could not sue the employer. All claims for benefits have to be heard and determined by the Workplace Safety and Insurance Board. The entitlement of a worker or worker’s survivor, spouse, child or dependent, to benefits under the insurance plan is in lieu of all rights of action. There was no dispute that the worker was in the course of employment at the time of the incident. Given the no-fault scheme, the fact that an employer may have been negligent did not have a bearing on the removal of the right to sue.

The employee could sue the executive officer of the employer. Section 26(2) does not create an absolute bar to action against an employer or executive officer of the employer for personal conduct. The main question was whether the executive officer was acting in an employment-related capacity in the conduct which was the subject of the civil action. The tribunal found he was not. The neck manipulation or massage was not reasonably incidental to the executive officer’s role in the company and his conduct was not condoned by the company. In fact, he had been warned several times about making unnecessary physical contact. There was also some intention involved here, as he deliberately placed his hands on the worker. Since the executive officer was not acting in an employment-related capacity, the employee retained her right of action against the executive officer.

What can be taken from this case?

As can be seen from this case, due to the historic trade-off, the workers’ compensation regime takes away the right to sue employers when employees experience an accident during the course of employment. This is so even if there was potential negligence involved.

However, this does not mean there is an absolute bar to action. There could be situations where someone, like the executive officer in this case, behaves in a way that is not employment-related. In these situations, the right to sue is not likely to be taken away. The question to ask is whether the conduct was reasonably incidental to the offender’s role in the company.

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Comments

  1. From an insurance perspective, this decision raises some interesting questions. Companies of any size or significance will purchase Commercial General Liability (CGL) insurance; often including a coverage known as “Employers Liability” (EL), or “Employers Bodily Injury Liability.” EL cover is purchased by an insured to provide for defence/indemnity against claims brought by Employees who may be injured during the course of their employment and where WSIB is not available. As with any insurance coverage is subject to certain terms, conditions and the dreaded exclusions. I just pulled a typical EL wording and one of the exclusions reads as follows:

    “Any injury sustained because of any act committed intentionally by you or at your direction
    and, if you are designated in the “Declarations” as a partnership or an organization other
    than a partnership or joint venture, by any executive officer, director, stockholder or partner
    thereof. Exclusion e. shall not exclude coverage for your legal liability other than benefits
    or compensation provided for under any workers compensation act, resulting from the
    deliberate intentional act of an “employee” or agent other than an executive officer, director,
    stockholder or partner) that produce injury or death to another “employee” when such act is
    committed within the scope of employment.”

    I would be very interested to know if the CGL insurer for this worker’s employer will respond to the civil suit against the Executive Officer, or if they will seek to deny coverage based on a similar exclusion.

    There is a separate form of coverage called “Contingent Employers Liability” which is purchased by insureds who are otherwise subject to and who pay WSIB premiums. This form of EL cover is often included as a “carve-back” contained within an Employers Liability exclusion. A typical wording contained in a Contingent EL clause follows:

    “A claim made or an “action” brought by a Canadian resident “employee” on whose behalf contributions are made by or required to be made by you under the provisions of any Canadian provincial or territorial workers’ compensation law, if cover or benefits have been denied by any Canadian Workers’ Compensation Authority.”

    In the article above, there is no mention of whether or not WSIB denied benefits to the worker for her injuries. Do we know if she received WSIB benefits following the unwanted physical contact by the executive officer?

  2. Thanks for you comment… it is very informative… we will follow this case to see if the employee does proceed to take action against the executive… nowhere in this application for the right to take civil action is their mention of liability insurance.

    In addition, there is no mention if the WSIB benefits were denied. I presume she has not yet applied or not yet received WSIB benefits since the judgement states, “She has a right to claim benefits under the WSIA, and her right of action against her employer is taken away.”

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