Employment Injuries: Is The Workers' Compensation Board The Only Recourse?

1) INTRODUCTION

In Quebec, no fewer than 224 workers are injured every day on average1 in a multitude of different situations: a teacher is physically assaulted by a student; a newspaper deliverer suffers a fall in the poorly maintained entranceway of a customer; a construction worker is injured due to a crane operator's negligence; a receptionist is harassed by her boss.

It is easy to envision that an injured worker can seek compensation from Quebec's workers' compensation board, the Commission des normes, de l'équité, de la santé et de la sécurité du travail ("CNESST"). But can the worker also sue the person responsible for his or her injuries in court, for damages? Can the worker do both?

In this article, we will identify the situations where the injured worker can bring a civil suit, notwithstanding the near-absolute immunity afforded employers by the Act respecting Industrial Accidents and Occupational Diseases2 ("IAODA").

2) THE REGIME UNDER THE ACT RESPECTING INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES

One of the cardinal principles of the IAODA regime is that the injured worker will be indemnified regardless of who, if anyone, was at fault3. Thus, when an injury is covered by IAODA, the worker will be compensated no matter who was at fault, unless the accident is due solely to his or her gross and wilful negligence, except where the accident causes death or severe permanent physical or mental impairment4.

This Quebec regime of occupational health and safety compensation thus constitutes a social "compromise"5 or "pact"6 whereunder the worker may not bring a civil liability suit against his or her employer on account of the injury. Whence the absolute immunity afforded the workers' employers by section 438 of IAODA.

The IAODA regime applies to every Quebec worker who suffers an industrial accident and whose employer had an establishment in Quebec when the accident occurred7.

Under the Act, a "worker" is "a natural person who does work for an employer for remuneration under a contract of employment or of apprenticeship"8. An employer is defined as "a person who, under a contract of employment or of apprenticeship, uses the services of a worker for the purposes of his establishment".

It should be borne in mind that even where a Quebec employer fails to pay the required assessment into the IAODA regime, the workers in its employ may nevertheless submit a claim to the CNESST.

Section 2 of the Act defines an "industrial accident" as "a sudden and unforeseen event, attributable to any cause, which happens to a person, arising out of or in the course of his work and resulting in an employment injury to him". An injury that arises "out of or in the course of" one's work will deemed to be an employment injury, whether the injury is physical or psychological in nature9.

A worker who seeks to be compensated under the IAODA must generally file a claim with the CNESST within six months after the injury10.

When the conditions provided for in the IAODA are met and the accident is covered by the regime...