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Exec not acting in employment-related capacity when he massaged employee's neck; civil claim can proceed

Jurisdiction: - Ontario

In Decision No. 727/13, 2014 ONWSIAT 1128, the Ontario Workplace Safety and Insurance Board Appeals Tribunal ("WSIB) ruled that an executive was not acting in an employment-related capacity when he massaged an employee's neck. As such, the employee's right to sue the executive was not removed by the Ontario Workplace Safety and Insurance Act and her civil claim against the executive could proceed.

The case summary provides a follows:

The plaintiff brought an action against her employer and an executive officer of the employer. The defendants applied to determine whether the plaintiff's right of action was taken away.

The worker had a medical condition affecting her shoulders. The executive officer manipulated and/or massaged the worker's neck without her consent. The plaintiff alleged that the executive officer caused an injury to her neck. The Panel noted that the executive officer was known to be physically demonstrative and that the employer's human resources manager had spoken to the executive officer on more than one occasion to warn him not to touch co-workers or customers except as necessary.

The plaintiff was in the course of her employment at the time of the incident. The issues to be determined were whether the WSIA creates an absolute bar against an action by a worker against an executive officer of the worker's employer and, if it does not create an absolute bar, what is the standard of whether a worker's right to sue an executive officer of the worker's employer should be removed.

Section26(2) of the WSIA provides that entitlement to benefits is in lieu of all rights of action that a worker has against the worker's employer or an executive officer of the employer for or by reason of an accident happening to the worker while in the employment of the employer.

The worker's right of action against her employer was clearly taken away by s. 26 of the WSIA.

Prevailing Tribunal case law supports a conclusion that s. 26 does not create absolute bar to action against an employer or executive officer of the employer for personal conduct. The Vice-Chair agreed with the approach in Decision No. 649/94 that the question should be framed as whether the executive officer was acting in an employment-related capacity in the conduct which is the subject of the civil action.

Tribunal decisions address the boundaries of conduct which is considered to be within the course of employment. The cases fall into the two categories of misconduct and horseplay. With regard to misconduct, consideration is given to whether the person acted with malign intent with a view to seeking a predictable result. Horseplay may be regarded as incidental to employment depending on the customs and practices of the workplace.

The Vice-Chair analyzed the conduct of the executive officer in this case with reference to those standards. The neck manipulation or massage was not reasonably incidental to the executive officer's role in the company. His conduct was not condoned by the company, as he had been warned a number of times about making unnecessary physical contact. There was also an element of intention about the actions of the executive officer. He deliberately placed his hands on the plaintiff for the purpose of administering the manipulation or massage.

The Vice-Chair concluded that the executive officer was not acting in an employment-related capacity in regard to the conduct that was the subject of the civil action. The plaintiff's right of action against the executive officer was not taken away.