Alberta Company Wins Rare Negligence Lawsuit over Workplace Injury
Most Canadian companies are required to participate in a workers’ compensation program. The trade off for such participation: Companies can’t get sued by their workers for workplace injuries and illnesses. Workers’ comp is also a trade off for workers. Under the scheme, workers give up the right to sue their employers, but are guaranteed compensation in the form of workers’ comp benefi ts for any work-related injuries or illnesses they suffer. Because workers’ comp is so widespread, we tend to forget that there are some companies that are exempt from participation. Workers at such companies can sue their employers for work-related injuries and illnesses. How does the court decide if the company is liable for the worker’s injury in such cases? Answer: By determining if the company was “negligent”—that is, if it violated its duty to take reasonable care to keep the workplace safe.
Although such cases are relatively rare, one recently took place in Alberta. Here’s a look at the case and why it carries lessons for all companies, even companies that do participate in workers’ comp—both inside and outside Alberta.
THE CASE
What Happened: A cafeteria worker for the Alberta Teachers’ Association (ATA) was told to unload a delivery of boxes of canned and bottled soda and juice in the “pop room.” The room had four metal shelving units. The fourth shelving unit was braced to prevent it from falling forward. The worker moved the items on the higher shelves of the braced unit to the lower shelves to ensure that they’d be the first to be used. Once she was done rearranging the shelves, she started stacking new items on the upper shelves. As the worker was lifting a heavy box onto one of the upper shelves, she slipped and grabbed one of the unit’s braces. She fell backwards, tilting and twisting the shelving unit. Cans and bottles fell on the worker. She injured her head and right shoulder and cut her left arm. Because the ATA was exempt from workers’ comp, the worker sued it for her injuries under negligence law.
What the Court Decided: The Alberta Court of Queen’s Bench dismissed the lawsuit, ruling that the ATA wasn’t negligent.
How the Court Justified the Decision: The ATA owed the worker a duty to take “reasonable care to see that its workplace was safe,” explained the court, and to address foreseeable hazards. But the ATA wasn’t required to guarantee the worker’s safety. The ATA’s maintenance staff had recognized that the fourth shelving unit posed a tipping hazard. So they braced it. The bracing system, however, wasn’t designed to withstand the kind of strain exerted by someone violently pulling the brace to the side as she fell, which was what happened here. And the ATA couldn’t have foreseen that the shelving unit or braces would have to endure such strain. The court added there had been no prior complaints about the safety of the shelving units or prior incidents involving those units. So the court concluded that there was no evidence that the ATA was negligent or that the incident was reasonably foreseeable [Zubick v. Alberta Teachers’ Assn., [2008] A.J. No. 24, Jan. 11, 2008].
ANALYSIS
Although companies that do participate in workers’ comp can’t be sued by workers who get injured on the job, they can be charged with OHS violations based on those injuries. OHS prosecutions and negligence lawsuits involve similar principles. The OHS laws’ “general duty” clause is in many ways a legal embodiment of the common law negligence principles at work in the Zubick case. Both concepts require companies to take reasonable steps to ensure that their workplaces are safe. In addition, some regulations require companies to take “reasonable” safeguards or measures to deal with specific risks. For example, Sec. 189 of the Alberta OHS Code requires employers and workers to “take all reasonable steps” to ensure that material or equipment “is contained, restrained or protected to eliminate the potential danger” of injury to workers should the equipment or material become dislodged or moved.
Thus, a company can defend itself in both an OHS prosecution and a negligence lawsuit by showing that it took reasonable steps to address foreseeable hazards. So although the Zubick case may not seem relevant to companies that participate in workers’ comp, the analysis that the court used is similar to how a court would analyze a due diligence defence if the company had been charged with OHS violations.
