Horseplay Pain For Both Employer And Employee: Eynon V. Simplicity Air

• Published date: 21 July 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Employee Benefits & Compensation, Personal Injury, Professional Negligence
• Law Firm: Siskinds LLP
• Author: Ms Elizabeth Traynor

Employees often defend horseplay as an effective way to make work more fun. But when horseplay turns dangerous, liability accrues to everyone. The story of Daniel Eynon and Simplicity Air is a cautionary tale.

Mr. Eynon foolishly took up a challenge from a coworker to climb a 14-foot-high chain hoist. His trip up the hoist seems to have gone smoothly-going down, not so much. He caught his pants, and then his scrotum, on two hooks and eventually required surgery to repair lacerations to the area.

As if that weren't painful enough, WSIB denied his claim for benefits, finding that the injury did not take place in the course of his employment, presumably because horseplay was not part of his job description. This left Mr. Eynon with the opportunity to file a civil personal injury claim against his employer, and he promptly did so.

A jury found that Mr. Eynon had suffered $75,000 in general damages and lost $9,000 in wages due to the injury itself. However, those awards were reduced by 75% due to Mr. Eynon's own contributory negligence, i.e. he should not have climbed the hoist in the first place. This left Simplicity Air with a liability of $21,000, which might not have been a crushing financial blow.

But '

The jury also considered Mr. Eynon's description of his employer's conduct in the hour between the time of the injury and his arrival at the hospital:

• When he was first injured, Mr. Eynon screamed in pain and asked that an ambulance be called.
• Gary, a supervisor, arrived on the scene, laughed, and refused to look at the injury.
• Gary refused to call an ambulance and drove Mr. Eynon to a second shop location to talk to Doug, Mr. Eynon's manager.
• Doug said they would drive Mr. Eynon home and make sure his car got home.
• Mr. Eynon called his father, who told him to insist on going to the hospital.
• Doug agreed that Gary would take Mr. Eynon to hospital, but both Doug and Gary told him to say that the injury happened at home.
• Gary dropped Mr. Eynon at the entrance of the hospital and did not accompany him inside.

In the words of the Ontario Court of Appeal:

[12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors' instructions to an injured employee to falsely...