Ch. 8 - Occupational Health & Safety Act
“safety should never be a priority; it should
be a precondition. It should be like breathing”
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https://www.cobtrades.com/hoggs-hollow
The Hoggs Hollow Disaster resulted in an inquiry – The Royal Commission on
Industrial Safety (McAndrew Commission)
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The result was a complete overhaul of Health and Safety in the workplace. – the
word Safety was added to the Factory Act of 1884 and the name change to the
Industrial Safety Act of 1964
Learning Objectives:
• Understand the internal responsibility system that underlies Ontario’s health and safety
legislation.
• Outline the health and safety duties of the parties in the workplace.
• Identify workers’ rights under the Ontario Occupational Health and Safety Act (OHSA).
• Understand the legal requirements surrounding workplace violence and harassment, including
sexual harassment.
• Describe the key requirements under the Workplace Hazardous Materials Information System.
• State the accident-reporting requirements under the Act.
• Explain how the OHSA and its regulations are administered and enforced, and describe the test
of due diligence.
• Identify the provisions in the Criminal Code related to an employer’s health and safety
obligations.
• Understand some of the health and safety–related impacts of COVID-19.
Occupational Health & Safety Act
Video OHSA Explained:
• https://www.youtube.com/watch?v=92WQBm8QKg8&ab_channel=ohcowclinics
Jurisdiction: Federal or Provincial?
• https://www.ccohs.ca/oshanswers/legisl/legislation/intro.html
Introduction to the Guide to the OHSA.
• https://www.ontario.ca/document/guide-occupational-health-and-safety-act
Occupational Health & Safety Act
The Internal Responsibility System
• IRS - an approach to health and safety that is based on the belief that healthy and safe
workplaces require the participation of all the workplace parties
• Since the late 1970s, Ontario’s health and safety legislation has been based on a system of
joint or shared responsibility, which is referred to as the internal responsibility system (IRS).
This system is based on the premise that government alone cannot effectively regulate all
workplace risks. Instead, the law emphasizes participation by all parties in the workplace to
ensure a healthy and safe environment
• Joint Health and Safety Committee (JHSC) - an advisory health and safety body that is composed of
equal numbers of management and worker representatives; generally required in workplaces with 20
or more workers
OHSA – Who is Covered?
• Ontario’s OHSA covers almost every worker and workplace in Ontario. Because
the OHSA applies to “workers,” an individual need not be an “employee” in the
legal sense of the term to be covered by the legislation. Anyone paid to perform
work or supply services, including an independent contractor or a temporary
agency employee, is covered
• “Workplace” is defined broadly in section 1 as “any land, premises, location or
thing at, upon, in or near which a worker works.” The only Ontario workplaces
that are not covered by the OHSA are workplaces under federal jurisdiction,
which are subject to the Canada Labour Code, or workplaces where work is done
by an owner, occupant, or servant in a private residence or its connected land. In
other words, the only provincially regulated workers not covered by the OHSA are
individuals who come into a residence and are directly employed by the
occupant, as in the case of a nanny.
OHSA – Key Features
1.
The OHSA focuses on prevention of workplace accidents and diseases.
2.
The premise behind the legislation is that the workplace parties share the responsibility for occupational health and safety because they are best placed to
identify health and safety problems and to develop solutions. As discussed above, this approach is called the “internal responsibility system.”
3.
The OHSA specifies the general rights and responsibilities of the workplace parties. However, specific requirements related to particular industries and hazards
are contained in over 20 regulations enacted in support of the legislation.
4.
All “workers,” not just employees, are covered by the OHSA. This includes independent contractors, workers engaged in sub trades, temporary help agency
employees, and employees or workers of other employers who happen to be in the workplace.
5.
The OHSA applies to provincially regulated workplaces in Ontario.
6.
Under the OHSA, workers have three core rights:
a) the right to participate in identifying and resolving health and safety concerns, primarily through the JHSC or, in smaller workplaces, the health and safety
representative;
b) the right to refuse work they believe is dangerous to themselves or another worker, and in the case of a certified member of a JHSC, the right to stop work
that is dangerous to
any worker in specified circumstances; and
c)
the right to know about potential hazards to which they may be exposed through training and the Workplace Hazardous Materials Information System
(WHMIS).
7.
Requirements relating to workplace violence and workplace harassment, including sexual harassment, are now a prominent part of health and safety protections.
8.
Penalties for violating the OHSA include fines of up to $2,000,000 and terms of imprisonment.
9.
The OHSA is administered by the Ministry of Labour, Immigration, Training and Skills Development, which also has legal responsibility for the prevention of
workplace injuries and diseases through the Office of the Chief Prevention Officer, supported by the Prevention Council.
OHSA - Duties of Workplace Parties
IRS requires that all parties actively participate in ensuring that
workplaces are safe. The individual obligations are broken down into
the following responsibilities:
• Employer
• Supervisor
• Worker
• Others
• Constructors, Owners, Suppliers Corporate Officers
OHSA – Rights
1. Right to Refuse Unsafe Work (OHSA s. 43)
2. The Right to Stop Work (OHSA s. 44-49)
3. The Right to Know
OHSA – Workplace Violence and Harassment
Employer’s Duty changes following the introduction of Bill 168 that imposed a duty on the
Employer to take steps to address workplace violence.
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Lori Dupont – A Workplace Murder (p. 306)
The amendments to the Act created a number of specific obligations:
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Workplace Violence – Risk Assessment
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Workplace Violence – Policies
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Workplace Violence – Programs
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Workplace Violence – Worker Information and Instruction
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Workplace Violence – Best Practices
Occupational Health and Safety Act:
Workplace Harassment (Incl. Sexual Harassment)
Definition: Workplace harassment refers to engaging in a course of
vexatious comment or conduct against a worker in a workplace that is
known or ought reasonably to be known to be unwelcome.
• Bill 132 – Amendments to the OHSA expanded the Employer’s
obligations
• Workplace Harassment – Policies
• Workplace Harassment – Programs
• Workplace Harassment – Worker Information and Introduction
Occupational Health and Safety Act
Accidents
Accident Reporting
• S. 51 – All accidents must be reported.
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Critical injuries and fatalities
• S. 52(1) – Report within 4 Days
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Failure to report could result in fines up to $20,000
Blue Mountain Resorts Limited v. Ontario (Labour)
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Applies to non-workers as well
Occupational Health and Safety Act
Accidents (Cont’d)
Accident Investigation Procedures
• At least two managers trained in accident investigation techniques.
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Ensure investigation begins as soon as possible
Prepare and file the requisite information for the Ministry
Obtain statements
Take photographs
Interview all potential witnesses
Ensure all interviews are witnessed
Prepare witness statements
Ensure the site is not tampered with
Relevant evidence catalogued
Develop a remedial action plan
Have a management representative accompany the Ministry Investigator
Occupational Health and Safety Act
Administration and Enforcement
1. Administration – Under IRS, all parties share responsibility
2. Ministry of Labour, Immigration, Training and Skills
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Inspections - s. 54-56 Power to Enter
3. Enforcement (s. 57) – Inspectors can issue orders to comply, stop
work orders.
4. Offences and Penalties (s.66)
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Max. Penalties
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Corp. - $2,000,000 per offence
Officers - $1,500,000 per offence, or imprisonment for up to 12 months
All other individuals - $500,000 and up to 12 months in jail.
Occupational Health and Safety Act
Westray Mines and Metron
Westray Mining Disaster
• May 9, 1992 – 29 miners killed in explosion in Mine.
• Company disregarded recorded safety concerns raised by employees, union
officials and government inspectors.
• Resulted in changes to Legislation
• Bill c-45 An Act to Amend the Criminal Code– amendment to the Criminal Code of
Canada (Criminal Liability of Organizations – Into force March 31, 2004)
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Established rules for attributing criminal liability to organizations
Established a legal duty for all persons directing the work of others to take reasonable
steps to ensure the safety of workers and the public.
Set out factors that a court must consider when sentencing an organization
Provided conditions of probation that a court may impose on an organization
Occupational Health and Safety Act
Westray Mines and Metron
Westray (cont’d)
• Legal Duty – OHSA duty for all organizations and individuals who direct the
work of others in Canada.
• S.217.1 codifies a legal duty that helps to satisfy one of the essential elements in a
criminal negligence-based offence – that the person directing the work of others
breached a legal duty by not taking all reasonable steps to prevent bodily harm to the
person performing the work or to any other person.
• Sentencing amendments – max. fine raised from $25,000 to $100,000., and no limit on
the amount that can be imposed for an indictable offence.
• The charges against the company and individuals were stayed. There was a public
inquiry – as there always is – The Westray Story: A Predictable Path to Disaster.
Occupational Health and Safety Act
Westray Mines and Metron
Metron was the first conviction in Ontario under the Westray
Mines – Bill C-45 Amendments. .
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The case dealt with the deaths of four workers who fell on Christmas Eve 2009, as well as the
serious injury of one other worker, after a scaffold collapsed while they were doing repairs on the
14th floor of a high-rise building.
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The investigation revealed numerous health and safety violations, including the fact that six
workers boarded scaffolding that only had two safety harnesses.
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Fines were tripled by the OCA
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$750,000 for the company, finding that the “fines failed to appreciate the
higher degree of moral blameworthiness and gravity associated with the
respondent’s criminal conviction for criminal negligence causing death…
Denunciation and deterrence should have received greater emphasis”
Occupational Health and Safety Act
Westray Mines and Metron
Metron (cont’d)
• Metron Construction Project Manager, Vadim Kazelson, was
sentenced to three and a half years in prison. This was the
first time in Ontario that someone had been sentenced to a
prison term under s.217.1.
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the penalty imposed provides guidance on a suitable sanction where very serious harm
resulted: subsequent sentencing cases will likely be measured against this standard.
Workplace Safety and Insurance Act, 1997
The Workplace Safety and Insurance Act, 1997 (WSIA), like the
Occupational Health and Safety Act (OHSA), relates to workplace health
and safety in Ontario. While the focus of the OHSA is on prevention, the
WSIA primarily deals with compensating and reintegrating workers who
suffer work-related injuries and illnesses
• Insurance system funded by employers that guarantees
compensation to workers for work-related injuries or diseases,
regardless of who is at fault.
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In exchange for this right, workers have given up their right to sue employers
for work-related injuries or disease.
Medwid v. Ontario – challenged the set-off. The court found that any
disadvantage to workers in not being able to sue, was off-set y the
advantage of immediate payment from an insurance fund on a no-fault
basis.
Workplace Safety and Insurance Act, 1997
Internal Responsibility System
Similar to the internal responsibility system under the health and safety legislation the current system
requires workers and employers to take responsibility for and cooperate in getting the injured worker back to
work. The Workplace Safety and Insurance Board (WSIB) plays the role of mediator in reintegration, stepping
in only when the parties are unable or unwilling to resolve a situation.
• Negligence - an act or omission that involves no intention to cause harm but that a reasonable
person would anticipate might cause harm
• contributory negligence - a common law defence in an action arising from negligence in which it
is asserted that the plaintiff’s own negligence directly caused or contributed to the injuries
suffered
• co-worker negligence - a common law defence in an action arising from negligence in which it is
asserted that the plaintiff’s injuries were caused by the negligence of the plaintiff’s co-worker,
not the employer
• voluntary assumption of risk - a common law defence in which it is asserted that the plaintiff
voluntarily assumed the risk of injury
Workplace Safety and Insurance Act, 1997
Before WSIA, injuries were compensated under the auspices of the
common law principles of negligence.
• To receive compensation for an occupational injury, the worker would bring a
negligence suit against the employer in court. However, an employer had several
powerful defences to an employee’s allegation of negligence.
• The list of defences on the previous slide gave the employer an unfair
advantage in the already unbalanced relationship. The result was that most
workers were left destitute if their injury left them unable to work.
• If the work was inherently dangerous, an employer could argue that the worker
voluntarily assumed the risk of injury.
• Workers Compensation Board
Workplace Safety and Insurance Act, 1997
Key Features
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No fault insurance system that compensates workers for work-related injuries or illnesses.
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Benefits for injured workers are funded entirely by employers in the province.
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It is against the law for workers to contribute to WSIA premiums
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Workers cannot waive their rights to benefits under the WSIA
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Most Employees in Ontario are covered by the WSIA, they have no choice. Independent contractors by
opt in to the regime. In the construction industry, it is mandatory.
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System focuses on the early and safe return to injured workers to work.
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Employers with 20 or more employees are obliged to re-employ injured workers who have at least one
year’s service.
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Employee’s not able to return to their employer, may get a work transition plan.
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System is administered by the WSIB, which adjudicates and pays compensation claims.
Workplace Safety and Insurance Act, 1997
Who is Covered by WSIA?
Employers
• Most industries in the province—including manufacturing, construction, hospitals, hotels, restaurants,
and theatres—are covered under the WSIA.
• Some industries are not compulsorily covered. These include financial institutions, recreational and
social clubs, broadcasting stations, trade unions, law firms, barber shops, educational institutions,
veterinary clinics, and dental offices.
• employers in these low-risk industries apply for coverage because it protects them from lawsuits
for work-related injuries at a relatively low cost because of their low-risk status.
Workers
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Workers in general are covered. Special groups like independent operators, sole proprietors, and
executive officers—who are not automatically covered, may opt into the system. Special rules apply
to the construction industry resulting in mandatory participation by independent contractors.
Workplace Safety and Insurance Act, 1997
Benefit Eligibility
• Insurance only applicable for injuries or diseases that relate to the workplace; non-occupational
injuries or illnesses are not covered.
• The following general rules govern the determination of entitlement to benefits.
• “Arising out of and in the Course of His or Her Employment” - Benefits are paid as long as a worker is performing
work-related duties anywhere on the employer’s premises during their work hours
• Willful Misconduct (s.13) - the legislation does not cover an injury that is solely a consequence of the “serious and
wilful misconduct of the worker,” unless the injury results in death or serious impairment (s. 17)
• Disability Claims - The presumption of work-relatedness does not apply to disability cases. Where the onset of an
injury is gradual—as in a repetitive strain injury—the onus is on the worker to show a relationship between the
disability and the work.
• Occupational Diseases - Occupational diseases are compensable if there is a causal relationship between the disease
and the employment. Industrial diseases that are known to arise from specific industrial processes are set out in the
schedules to the WSIA.
• Mental Stress - an employee’s claim for mental stress could succeed only if it was “an acute reaction to a sudden and
unexpected traumatic event arising out of and in the course of his or her employment”
• Chronic Pain - Benefits for chronic pain usually are paid where the pain was initially caused by a work-related
injury and continues for six or more months beyond the usual healing time for the injury
Workplace Safety and Insurance Act, 1997
Benefits
• Lost Earnings on the Day of Injury (s.24)- if a worker is unable to complete their scheduled hours of
work because of a work-related injury or illness, the employer must pay the worker the wages and
benefits that they would have earned for the day or shift on which the injury occurred.
• Health Care Costs (s.33) - WSIA system covers all health care costs that result from Robert’s injury.
• Benefits for Loss of Earnings (LOE) - Loss of earnings (LOE) benefits are calculated at 85 percent of an
injured worker’s net earnings—that is, earnings after income tax, CPP premiums, and employment
insurance deductions are factored out.
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The maximum insurable earnings level covered is 175 percent of the average industrial wage, which in 2023
was $110,000. Generally speaking, benefits are paid until the earliest of:
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the day the loss of earnings ceases,
the day the worker reaches age 65, or
the day the worker is no longer impaired by the injury (s. 43).
Non-economic Losses (NEL) - If the disability turns out to be a permanent impairment.
Workplace Safety and Insurance Act, 1997
Benefits (cont’d)
• Loss of Retirement Income Benefits (s.45) - if loss of earnings benefits for are paid for 12 consecutive
months, the WSIB must set aside an amount equal to 5 percent of the workers benefits, in addition to their
regular benefits, to provide him with a retirement pension.
• Death and Survivor Benefits (s.48) - A spouse who survives a worker who died from a compensable injury is
entitled
• (a) to a lump-sum payment based on age,
• (b) to periodic payments based on the deceased worker’s net average earnings and number of dependent children, and
• (c) to vocational counselling.
Workplace Safety and Insurance Act, 1997
Duty to Cooperate and the Right of Reinstatement
• Once the worker is physically able to perform the essential duties of his pre-injury job, the
employer must reinstate him to the same or a comparable job with comparable earnings. This
obligation expires on the earliest of:
1. two years after the accident date,
2. one year after the date he is medically able to perform the essential duties of his
pre-injury job, or
3. the date he reaches age 65.
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The worker must cooperate by consenting to the disclosure of medical information indicating his functional
abilities so that WSIB can assess his ability to return to work.
The employer has reporting obligations that must be taken seriously as well. Under section 41 of the WSIA,
an employer which has 20 or more workers, has a statutory obligation to re-employ injured workers who
have been continuously employed for at least one year before the accident. Special rules apply to
Construction.
Workplace Safety and Insurance Act, 1997
Funding the System
• Employers pay the full cost of the WSIA system by means of premiums paid to the WSIB. It is illegal for
employers to recover any part of their premium from workers.
• A covered employer must register with the WSIB within ten days after becoming an employer. Failing to
register can result in an employer’s being assessed for periods during which it did not pay premiums,
plus interest and penalties.
• Employer Assessments
• There are two categories of employers – Schedule 1 and Schedule 2
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Sch. 1 – the majority of employers are in this category. They pay assessment premiums on the basis of their industry class. The avg. premium rate is $1.30/$100 of insurable
earnings.
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Sch. 2 – this group is comprised of large employers, municipalities, school boards, hospitals, railways and airlines. This is also the category for federally regulated employers.
• Premium Rate Setting – the rate is based on the employer’s individual claims experience under a two-step approach
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Step One - class premium rate based on each class’s share of responsibility for the costs generated to maintain the insurance fund. (Each Schedule 1 business is assigned to one or
more classes/subclasses under the North American Industry Classification System (NAICS), based on its business activities.)
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Step Two - setting a risk-adjusted premium rate for each employer, based in part on how their individual claims experience and insurable earnings compare with the collective
experience and insurable earnings of their class.
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Employers can get relief for worker’s injuries that are recurring or pre-existing, rather than new (the injury did not occur while in their employ. SIEF – secondary injury Enhancement Fund.
Workplace Safety and Insurance Act, 1997
Administration and Enforcement
• WSIB administers the Workers’ Compensation System.
• Assessment of entitlement
• Investigations into claims
• Employee Fraud
• Employer Fraud
• Enforcement
• Responsible for addressing fraud, recovering penalties.
• Appeals
• A worker or employer who disagrees with a decision of the WSIB may file a written notice of
objection with the WSIB.
• Three levels of appeal
• Notice of Objection
• Appeals Branch
• Workplace Safety and Insurance Appeals Tribunal
Workplace Safety and Insurance Act, 1997
Related Agencies
• Office of the Worker Adviser
• Advises injured workers who are not members of a trade union. Enables representation
without suffering significant costs.
• Office of the Employer Adviser
• Advises employers with fewer than 100 Employees and Provides representation at
appeals at the WSIB and WSIAT.
Ch. 11 – Navigating the Employment Relationship
Individual Contract of Employment
• Navigating the Employment Relationship, for non-unionized employees, relies heavily on the
Individual Contract of Employment. The contract contains the main terms and conditions
governing employment. The terms include both those expressly agreed and those that are
implied into the agreement by common law.
Employer Policy Manual
• Distinguished from the Contract of Employment, this document includes items of a general
nature, applicable to all employees, like: expected employee conduct, such as respect in the
workplace, codes of conduct, and even disciplinary steps, are typically included in a workplace policy.
Ch. 11 – Navigating the Employment Relationship
Employer Policy Manual (cont’d)
• Benefits of a well drafted Employer Policy Manual
• Serves legal and communicative functions
• effective way for an employer to provide information to employees in a convenient,
centralized location (a central database/repository)
• provides a convenient means for making relatively minor changes to company rules, such as a
slight alteration in coffee break times.
• helps ensure consistency in an employer’s treatment of employees by providing managers
with a set of pre-established rules to guide them in, for example, responding to various
employee requests
• If clearly written and consistently applied, it can reduce the potential for wrongful dismissal
litigation where the termination results from a breach of an employment policy
Ch. 11 – Navigating the Employment Relationship
Employer Policies and Policy Manual
Cautionary Note: Even where a policy is clearly set out in the manual, it may not protect an employer when an
Employer representative misrepresents – even mistakenly – the contents of the policy.
1. a policy manual does not automatically bind the employee; the employer must take certain steps to ensure that it forms
part of the employment contract.
2. ensure that the employment contract or letter of hire specifically incorporates the manual by reference;
3. provide employees with a copy of the manual before they begin work;
4. ensure that the manual is clearly drafted;
5. apply the manual’s policies consistently among employees;
6. ensure that all employees have up-to-date copies of the manual;
7. give as much notice as possible of significant changes to manual policy;
8. have employees indicate in writing, perhaps on an annual basis (typically through a signed acknowledgment form), that they
have reviewed the manual and any changes to it (this form should note that employees are responsible for asking human
resources staff or a supervisor about anything they do not understand in the manual) (Leiper and Hall, 2006, p. 14);
9. ensure that employees are aware of the consequences of failing to adhere to the manual and that these consequences are
fair;
10.include a statement advising employees that the employer retains the sole discretion to make changes to any of the policies,
procedures, and guidelines contained in the manual;
11.update the manual periodically to ensure compliance with current legislation; and
12.monitor policies to make sure that they are doing what they are intended to do and are easily administered
Ch. 11 – Navigating the Employment Relationship
Changing Employment Terms and Conditions
• Amending the Employment Contract
• Constructive Dismissal and Reasonable Notice
• Fundamental change?
• Wronko v. Western Inventory Service Ltd.
• Unilateral change to a fundamental term of the employment contract by providing
notice of the change.
• The court found that, where an employer attempts to make a unilateral and fundamental
change to the terms of an existing employment agreement, and the employee clearly
rejects that new term, the employer must do more than provide advance notice of the
change. It must also advise the employee of the consequences of rejecting it.
• Providing Consideration - Another way to amend an employment contract is through negotiation. To
create a binding contract under the common law, both parties must receive consideration—something
of value—in exchange for the promise given. Without consideration, the agreement is unenforceable
Ch. 11 – Navigating the Employment Relationship
Ensuring that Employment Agreement is Enforceable
• Follow many of the same steps as drafting the initial employment contract:
i. The employee should be given time to review the proposed changes and to seek independent legal advice
before signing the amended contract.
ii. To address the issue of consideration, an employer might introduce an amendment when another aspect of a
contract is changing as well, such as when an employee is promoted or given a pay increase.
iii. If the amendment is crucial and the employee refuses to sign, the employer may be faced with the last resort
of telling the employee that they will be dismissed with reasonable notice or pay in lieu if they do not sign.
Ch. 11 – Navigating the Employment Relationship
Managing Employee Performance and Conduct
• Performance Appraisals
• Progressive Discipline
• Suspensions without Pay
• Haldane v. Shelbar Enterprises Limited
• Unless there is an express or implied term in the employment contract allowing this form of discipline, a
suspension without pay, even for a few days, may constitute constructive dismissal under the common
law. This is because the right to work in exchange for pay is seen as a fundamental part of the
employment contract.
• Probation
• Temporary Layoffs
• Michalski v Cima Canada Inc.
• The Court found that the employee was constructively dismissed: the imposition of a layoff
where there is no express or implied term in the contract of employment permitting it
repudiates a fundamental term of the employment contract.
Ch. 11 – Navigating the Employment Relationship
Managing Employee Performance and Conduct (cont’d)
• Attendance Management
• Culpable Absenteeism - absences that involve a blameworthy act such as being late without good
reason, leaving work without permission, or failing to follow absence notification procedures.
• Innocent Absenteeism - absences that arise as a result of a legitimate medical or other cause, and
they can never be subject to disciplinary measures. However, even non-blameworthy absences
may cause an employer difficulty if they occur frequently or over a long period of time
• Attendance Management Programs
• The policy manual should include an attendance policy that sets out the employee’s basic responsibilities, such
as being on time for work. It may also cover the following matters:
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Absences and the requirement to call in, whom to call.
Requirement for sufficient notice
Requirement to give date of return from illness
Requirement to provide Doctor’s note in certain circumstances, and the form of same (information required)
Employer’s contact program
Procedure for returning employees after a long absence.
Ch. 11 – Navigating the Employment Relationship
Employer’s Duty to Safeguard Employee’s and Vicarious Liability for Employee’s Actions
• Employers have a duty to take reasonable care to ensure the safety of their employees and others who
come into contact with them.
• The common law also makes employers vicariously liable—that is, legally responsible for the conduct of
another—for damages caused by the actions of their employees if those actions fall within the course and
scope of their employment .
• In certain circumstances an employer also can be vicariously liable for an employee’s unauthorized, intentional
wrongful act.
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John Doe v Avalon East School Board, 2004 NLTD 239
Royal Bank of Canada v Intercon Security Ltd, 2005 CanLII 40376 (Ont Sup Ct J)
Jacobsen v Nike Canada Ltd, 1996 CanLII 3429, 133 DLR (4th) 377 (BCSC)
John v Flynn, 2001 CanLII 2985, 54 OR (3d) 774 (CA)
Hunt v Sutton Group Incentive Realty Inc, 2001 CanLII 28027
Ch. 11 – Navigating the Employment Relationship
Vicarious Liability
• Vicarious Liability for Distracted Driving
• This is a form of impaired driving where the driver is not fully focused on the road due to such
activities as talking on a cellphone, texting, reading, using a GPS, watching videos or movies,
eating/drinking, smoking, or personal grooming (Bleasby, 2018).
• Just as an employer can be liable for allowing employees to drive impaired from a work event, employers
can now be liable for letting employees use a cellphone for business purposes while driving (Zinn, 2008,
p. 4) or for otherwise failing to take reasonable measures to minimize the risk of distracted driving.
• The Countering Distracted Driving and Promoting Green Transportation Act, 2009
• Prohibits driving a motor vehicle while holding or using a hand-held wireless communication device (such as a
cellphone or smartphone). It also bans driving if the display screen of a television, computer, DVD player, or other
device in the vehicle is visible to the driver.
• Can an Employee be Sued for Negligence?
• Douglas v. Kinger, (2008) 270 O.A.C. 201 (CA)
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The OCA confirmed that there is no existing duty of care owed by employees at Law. From a public policy point of view,
employers are in a better position than employees to prepare for and insure against potential negligence in the workplace.