Needless to say, repeatedly Tasering a co-worker raises a host of legal issues. This particular worker has claimed that he was profoundly affected by the unprovoked Tasering. He describes symptoms of paranoia, insomnia, and anxiety. The media coverage suggests that the Taser itself was supplied by the employer’s General Manager, who then recorded the Tasering incidents. Someone posted clips of the Tasering on YouTube.
If this type of activity occurred in Canada, the victim of the Tasering would have a number of possible areas of legal recourse open to him. The employer would have serious issues in terms of both potential civil liability, and regulatory penalties that may be imposed by the Ministry of Labour under the Occupational Health and Safety Act.
For the worker, a key strategic question would be whether to call this a workplace injury and seek benefits from the Workplace Safety and Insurance Board, or whether to call this a simple case of assault, and sue the perpetrator for personal injury damages. It likely would not be possible to do both, so the worker must think strategically about where to look for compensation.
Section 28 of the Workplace Safety and Insurance Act (WSIA) extinguishes certain rights of action when injuries are sustained by workers in and during the course of employment. The question then becomes, what is a workplace injury? Certain injuries are clearly work-related, such as a broken arm sustained while falling off a ladder, or a back injury caused by lifting.
However, when it comes to assault in the workplace, it is not always clear whether the injury is work-related or not. The Workplace Safety and Insurance Appeals Tribunal has held some workplace assaults to be work-related, and has thereby stripped the worker of his or her right to sue for the injury, while other workplace assaults have been found to be outside the course of the work duties, and properly the subject of civil lawsuits.
If the injury is deemed a workplace injury, and the worker is thereby refused permission to sue for the injury, he would be limited in the compensation he could receive. In such cases, the person who assaulted him would also be shielded from civil liability. In the context of a WSIB claim, the worker could be compensated for lost wages and other employment benefits, but would not be entitled to increased damages unless he could prove that he suffered a permanent injury. In addition, he or she may also be obligated to participate in labour market re-training and other return to work obligations.
By contrast, in a civil law suit the worker could bring a claim for battery and intentional infliction of mental distress, and potentially be able to collect damages for both, which may include lost wages if the worker was rendered unable to work as a result of the attacks. A civil action would expose both the employer and the perpetrator of the assault to liability for damages, rather than having compensation come out of the WSIB’s fund. In a civil action, the worker may also be able to collect punitive damages which could increase the damage award significantly. What this all boils down to is that in many cases, the worker’s claim is worth more as a civil lawsuit than as a WSIB claim.
However, to pursue a civil lawsuit, the worker would first have to bring an application to the Workplace Safety Insurance and Appeals Tribunal to get permission to sue in court. To get this permission, the worker must prove that the attack was not work-related.
If the attacks arose out of a workplace dispute, such as an argument over shift scheduling or disputes over performance, the WSIAT may rule that it was a workplace injury, as was the case in Muhvic v. Corvinelli, 2001 ONWSIAT 267. In Muhvic, the dispute arose between two workers when one worker alleged that the other had been performing substandard work. This accusation of poor work performance resulted in a physical altercation where the plaintiff was injured. The WSIAT ruled that this was a workplace injury because the injury related to a dispute over work. The plaintiff was denied access to the courts.
However, in an Alberta case named Decision No.: 2009-1098, 2009 CanLII 69043 (AB WCAC), a dispute arose over a conversation between two co-workers about religion. One of workers was offended at the comments that were made and threw a calculator at the plaintiff, which struck him in the eye. The Alberta Workers’ Compensation Appeals Commission found that the assault was not work related because it arose out of a personal discussion not having anything to do with either worker’s job duties. In that case, the plaintiff was permitted to proceed with a civil lawsuit for the injury.
If your case involves a workplace injury relating to an assault or the intentional infliction of mental distress, it is important to get professional advice about your options before taking legal action.