By Kris Bonn
What Small Businesses Need to Know About Workplace Injury Liability in Ontario
Ontario’s workplace injury liability landscape is shaped by several key statutes, with the most critical being the Workplace Safety and Insurance Act, 1997 (WSIA) and the Occupational Health and Safety Act (OHSA). These laws work together, along with the common law, to ensure employees’ safety and to provide a clear system for responding to injuries.
Workplace Safety and Insurance Board (WSIB)
The WSIB administers Ontario’s no-fault workplace insurance. Most employers are required to register with the WSIB and pay into the insurance fund. When a worker is injured on the job, they may file a claim with the WSIB, which will then provide compensation for lost wages, medical expenses, and rehabilitation.
Key points for small business owners:
- Mandatory Registration: Most businesses with employees must register with the WSIB within ten days of hiring their first worker.
- Premium Payments: Employers must pay premiums based on their payroll and the risk of their industry. Failure to pay can lead to penalties and legal action.
- Reporting Injuries: When a workplace injury occurs, employers must report it to the WSIB within three days.
- No right for the employee to sue the employer for work injury if there is WSIB coverage, with some exceptions:
- If injuries are caused by a third party’s negligence, i.e. someone not employed by the employer, a legal action may be brought against the third party.
- If the employee is injured at the workplace due to another employee’s intentional act, the injured employee may be able to sue the other employee.
The Occupational Health and Safety Act (OHSA)
The OHSA sets out the rights and responsibilities of employers and workers regarding workplace safety. Under the OHSA, employers must take every reasonable precaution to protect workers. This is known as the “general duty clause.”
- Employers must provide information, training, and supervision to ensure the health and safety of their workers.
- Employers must have policies and procedures in place to identify, assess, and control workplace hazards.
- Failure to comply with the OHSA can lead to prosecution, fines, and even jail time in cases of negligence.
Common Law Liability Issues for Non-WSIB Workplaces
Some businesses and professions in Ontario are not covered by the WSIB, either because their industry is exempt or they have chosen not to participate. For these non-WSIB workplaces, workplace injuries are governed by common law principles rather than the no-fault system provided by WSIB. This distinction carries important liability implications for small business owners.
- Right to Sue: In the absence of WSIB coverage, injured workers are entitled to bring civil lawsuits against their employer for damages resulting from workplace injuries. This process is known as a “tort claim.”
- Negligence Claims: The injured party must prove that the employer breached a duty of care owed to the worker, and that this negligence directly caused the injury. Employers may be held liable for medical expenses, lost wages, pain and suffering, and other damages.
- Vicarious Liability: Employers can also be held liable for the negligent actions of other employees performed within the scope of employment.
- Defences: Employers may raise certain common law defences, such as contributory negligence (the worker’s own actions contributed to the injury) or assumption of risk, but these do not provide absolute protection.
- Insurance: Without WSIB protection, employers should consider purchasing private workplace liability insurance to mitigate the financial risks associated with potential lawsuits.
- Legal Costs: Defending a workplace injury lawsuit in court can be lengthy and expensive, even if the employer is ultimately found not liable. Proactive risk management and clear safety protocols are essential.
For non-WSIB workplaces, it is essential to maintain comprehensive health and safety policies, document all training and risk assessments, and foster a culture of safety to minimize exposure to common law claims.
Common Sources of Workplace Injuries
Workplace injuries can happen in any business, not just in traditionally hazardous industries. Common sources include:
- Slips, trips, and falls
- Repetitive strain injuries
- Contact with machinery or equipment
- Exposure to harmful substances
- Violent acts by people or animals
Understanding the specific risks associated with your industry is crucial to prevention.
Employer Liability: When Are You Responsible?
In most cases, Ontario’s WSIB system provides no-fault insurance, which means injured employees cannot sue their employer for damages if the employer is covered and in good standing with the WSIB. However, there are exceptions and nuances to be aware of:
When WSIB Coverage Applies
- If your business is registered and in good standing with the WSIB, you are generally protected from lawsuits by injured workers for work-related injuries.
- The WSIB will cover medical costs, rehab, and a percentage of lost wages for the injured worker.
When Small Businesses May Still Be Liable
Image Courtesy: Canva
Despite the protection the WSIB offers, liability may arise in certain circumstances:
- Non-WSIB-Covered Employees: Independent contractors, volunteers, and sometimes family members may not be covered. If they are injured, your business could be sued directly.
- Failure to Register or Pay Premiums: If you fail to register or keep up with premiums, you may lose WSIB protection and face lawsuits, fines, and prosecution.
- Gross Negligence: In cases where an employer’s intentional act or gross negligence causes harm, criminal charges and civil liability may occur, even if you have WSIB coverage.
Steps to Protect Your Business and Employees
Proactive risk management is essential. Here’s how you can protect both your workers and your business from unnecessary liability:
1. Register with the WSIB and Stay In Good Standing
Don’t delay registration. Review your status regularly and ensure premiums are paid on time. If your business changes (new types of work, more employees, etc.), update your information with the WSIB.
2. Implement a Comprehensive Health and Safety Program
Create policies that address the hazards specific to your workplace. Involve your employees in health and safety planning, and conduct regular training sessions. Document everything.
3. Stay Informed and Compliant
Keep up to date with changes to workplace safety laws. The OHSA can evolve, and industry-specific requirements may change. Subscribe to updates from the Ministry of Labour, Immigration, Training and Skills Development.
4. Record and Report Injuries Promptly
When an injury occurs, record all details and report to the WSIB within the required timeline. Delays can lead to penalties and jeopardize your coverage.
5. Communicate Openly with Employees
Foster a culture where employees feel comfortable reporting hazards or injuries. Early reporting can prevent more serious incidents and demonstrate your commitment to safety.
6. Seek Legal Advice When Needed
If you are unsure about your obligations or are facing a potential claim, don’t hesitate to consult a lawyer. Proactive legal advice can often prevent costly mistakes.
Conclusion: Proactive Planning Is Your Best Defense
Workplace injury liability can seem daunting, but with careful planning, you can safeguard your employees and your business. Register with the WSIB, implement robust health and safety measures, and stay informed about your legal obligations. Prioritizing workplace safety is not just the law—it’s good business.
If you have questions about your responsibilities or need guidance tailored to your company’s unique circumstances, reach out to a qualified employment lawyer. Taking steps today could prevent legal headaches tomorrow.
Kris Bonn, Partner at Bonn Law
Kris Bonn lives and practices law in Belleville. His practice includes representing plaintiffs in motor vehicle collision tort cases, accident benefits, medical malpractice and personal injury cases. He is a Past President of the Ontario Trial Lawyers Association (OTLA). Kris graduated from Queen’s University in 1997 in Commerce and from the University of Toronto Law School in 2000 and was called to the Ontario Bar in 2002. Kris is a LSO Certified Specialist in Civil Litigation. He is the President of the Brain Injury Association Quinte District (BIAQD).