The Worker’s Compensation Act: Protecting Employers and Workers

Kit McGuinness

Like other types of insurance, the payment of workers’ compensation premiums is sometimes seen as a drain on a company’s bottom line. But employers are happy when it saves them the increased upfront cost of paying damages to employees. Two recent Saskatchewan Court of Queen’s Bench decisions remind us how robust – and far reaching – the workers’ compensation system is in this province.

In Rowley v. Can-West Agencies Ltd., 2018 SKQB 224 (CanLII), the Court makes reference to a successful application by the defendant company to the Worker’s Compensation Board (“WCB”) for a determination pursuant to s. 169 of The Worker’s Compensation Act (the “Act”) to bar the claim.

In that case, the Plaintiffs sued the corporate defendant for, among other things, treatment they allegedly received from their floor manager. The Plaintiffs alleged that the male floor manager committed sexual assault and battery on them during the course of their employment, and that the employer owed them a duty of care to create and maintain a workplace free from discrimination and harassment on the basis of gender. They claimed for damages under the law of tort based on these allegations of misconduct.

However, prior to filing a Statement of Defence, the corporate defendant applied to the WCB for a determination as to whether the claims for damages were barred. At the WCB hearing, the employer argued that the claims based on the manager’s alleged tortious misconduct should be barred on the basis that these specific injuries arose out of and in the course of the Plaintiffs’ employment. In its ruling, the WCB agreed with the employer, and ruled that those particular damages were barred under the provisions of the Act.

Injuries arising out of and in the course of employment are not limited to physical injuries, such as strained muscles or broken bones, suffered in the course of employment. The Act defines “injury” as, among other things, “the results of a wilful and intentional act, not being the act of the worker”. Section 43 of the Act states that “no employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment.” Finally, section 181 of the Act bars all rights of action against employers for injuries to workers, except as for provided for within the Act.

In addition, the provincial government extended The Worker’s Compensation Act in 2016 to cover psychological injuries based on a single or series of traumatic events. Once established, the claims are argued on a “reverse onus” basis – once a worker has provided a diagnosis from a psychologist or psychiatrist in Saskatchewan confirming the existence of psychological injuries, it is up to the employer to prove that the claimed psychological injuries are unrelated to employment, or that the injuries are not psychological in nature.

Another very recent case, Janvier v. Workers’ Compensation Board of Saskatchewan, 2018 SKQB 175 (CanLII) provides additional detail with respect to the breadth of The Workers Compensation Act’s jurisdiction. In Janvier, Mr. Justice Barrington-Foote reminded the applicants seeking judicial review of their workers’ compensation decision that “…the purpose of the workers’ compensation system is not…solely to protect workers. It is also to protect employers from ‘crippling liability’.”

In Janvier, the Court referenced a previous decision, Edward Clarke v. Federated Co-operatives Limited, 2011 SKQB 180 (CanLII), where the Plaintiff had alleged that he was injured as a result of a campaign of harassment and abuse, including racial and religious slurs, which constituted “morally reprehensible intentional conduct.” In Clarke, the Court once again held that a claim for damages based on the intentional conduct of a person in the workplace, even where the conduct is morally reprehensible, is limited strictly to the provisions of The Workers Compensation Act, and not other forums such as a civil court. Exceptions to this would “seriously undermine the entire scheme” upon which the workers’ compensation system is based”, according to the Court.

These cases are an important reminder to employers in Saskatchewan: even though workers’ compensation premiums can be an expensive or tedious aspect of managing your company, they can also provide you with peace of mind. Paying into the workers’ compensation program can protect your company against a wide variety of claims, even those where harassment has been alleged. This is particularly true given the increased emphasis on mental health of employees, and the principled stands being taken against workplace harassment or bullying, and similar types of workplace misconduct.

Kit McGuinness
McKercher LLP
374 Third Avenue South, Saskatoon, SK
(306) 653-2000