In what may be considered a particularly rare occasion, the Ontario Court of Appeal has addressed an employment law issue in the context of Go-Kart racing.

In this case, the appellant volunteered to be a “race director” for a Go-Kart race, for which he received a small stipend. When a Go-Kart driver crashed into hay bales that lined the corner of the race track, the appellant was injured. He sued both the employer and the Go-Kart driver for his injuries. His claim was dismissed in a summary judgment because he had signed a waiver releasing the employer from liability for any damages associated with the event, including the employer’s negligence.

Ontario’s Workplace Safety and Insurance Act (the “Act”), provides an insurance system for employees in specific industries that are outlined in the schedules to the Act. However, if an employee works for a company that isn’t covered in those schedules, Part X, section 114(1) of the Act permits workers to sue their employers for workplace accidents that may arise due to a defect in workplace equipment or the employer’s negligence.

The Court of Appeal found that it would be contrary to public policy to permit workers like the appellant to contract out of the Act. There is no clear indication in the Act that it permits employers and employees to contract out of its protective measures for injured workers, therefore its regime cannot be ousted by a simple waiver. The Court allowed the appeal – the appellant’s case will now proceed to trial.

In light of this case, employers should re-consider any similar attempts to contract out of the Act’s workplace safety regime – even for individuals who are merely volunteers who receive a stipend.

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