August 6, 2021
Punitive damages might not be as limited as suggested by our recent articles on the subject.
The Ontario Court of Appeal decision in Eynon v. Simplicity Air Ltd. is a useful reminder that each case turns on is own facts, and the facts of that case are startling. Outrageous conduct will be punished, even if that means new developments in how we understand the law.
It is also a warning to employers about workplace safety.
The injured plaintiff, after being challenged by a co-worker, climbed a 14 foot high chain hoist. He caught the crotch of his pants on a hook on the chain, causing a second hook to pierce his scrotum. Ouch.
The WSIB determined that this horseplay did not arise in the course of employment, so he sued the employer.
The employer had not provided safety training, WHMIS training, or training in the dangers of the workplace specifically related to the hoist chain (which the worker was not authorized to operate). There was no supervisor on the shop floor at the time of the incident.
The worker recovered damages for pain and suffering, plus lost wages. These were reduced by 75% to account for the worker’s own fault in the incident. In addition, the employer was ordered to pay $150,000.00 in punitive damages, which were not reduced due to the worker’s fault.
The focus of the punitive damage claim was the conduct of the employer’s supervisors after the accident. Although there was conflicting evidence, there was evidence that suggested a supervisor laughed at the injury, and then two supervisors tried to cover up the fact that it occurred in the workplace – driving the worker to hospital rather than calling an ambulance, and counselling the worker to say the injury happened at home rather than at work.
The attempted cover up was considered to be enough reason on its own for an award of punitive damages, the objective of which is to denounce the behaviour, and deter other employers from doing the same in the future.
Another important aspect of this decision is that the employer was found to be responsible for punitive damages arising from the conduct of a supervisor. This result varies from the earlier case of Boucher v. Wal-Mart Canada Corp. in which the employer was found not responsible for an award against a manager. The two cases were distinguished on the basis that in Enyon, the supervisors were acting in the course of their duties, while in Boucher, the manager’s conduct was beyond the scope of his duties. In addition, the culture of of failing to place adequate importance on best safety practices was a corporate wrong in Enyon.
The punitive damages were also properly not reduced to reflect the worker’s fault, because the focus of punitive damages is only on the employer’s actions.
This decision should be a wake up call to all employers of the importance of best safety practices, and the need to foster a positive corporate culture around safety.
It also generally will encourage more claims for punitive damages in injury cases.