The basic rule of workers’ compensation is that a person entitled to benefits is not allowed to sue the employer. While civil claims against an employer for sexual assault are generally very difficult, (as reviewed in a prior post) such cases are definitely not allowed in this context.

The Instant Case

The issue was considered recently[1] by the WSIAT.[2]

The employee sued her employer, a Subway restaurant franchisee, its owner and her immediate superior alleging various acts of sexual harassment and assault by her supervisor. The claims against the company and the owner were in negligence. The immediate boss pleaded guilty to a criminal offence related to his wrongdoing.

The motion brought by the company and its owner to dismiss the civil action succeeded as it was clear that the employee was covered by the Act and hence denied the right to sue. A sexual assault of this nature is clearly covered by the wide definition of the term “accident” in the statute which includes wilful and intentional conduct.

The irony, however, is that the employee is this context is still allowed to sue the individual wrongdoer who assaulted her, as such action is clearly outside the scope of employment. The victim can still claim workers’ compensation benefits, however, which then removes the right to sue the company and its owner.

It is not clear in this case whether the employee had actually made a claim for workers’ compensation benefits.

Yet, Human Rights Prevails

It is to be noted, as discussed in a prior post, the employee may still file a human rights complaint which is not caught by workers’ compensation law.

Employers’ View

The employer may well have succeeded in this instance. This being said, it is unlikely many companies will find favour in the concept that the conduct of a renegade employee, no matter what its policies and disciplinary procedures may be, may nonetheless lead to a workers’ compensation claim against it. This is so as workers’ compensation has been created as a no-fault regime. This is far different from the remedy by civil action, which, for reasons reviewed previously, is a very hard case for an employee to win in this context.

Employees’ on the Alert

The law on this subject is far from intuitive. It is a mine field. The time period for filing a workers’ compensation claim is very short. Many persons have no idea of their right to bring such a case. Lawyers bringing civil actions, as in this instance, will expose their client to costs, a lost case and perhaps have missed the time period for filing a workers’ compensation case.

Act Now

Contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.

[1] Decision No. 3096/17, 2018 ONWSIAT 1563

[2] Workplace Safety & Insurance Appeals Tribunal