Newsletter by Stéphanie Hazan # 116, July 2020 – Can I sue the person whom I consider responsible for my work accident, my motor vehicle accident or my criminal act?

CNESST

In Quebec, if you are the victim of an employment injury, you will be compensated by the plan provided for by the Act respecting industrial accidents and occupational diseases (LATMP). However, you cannot bring a civil liability action against your employer or your co-worker.

Indeed, the AIAOD grants absolute civil immunity to the employer, which also applies to a co-employee who would be responsible for the damage caused: “the worker victim of an employment injury cannot bring an action in civil liability against his employer because of his injury ”(section 438 of the Act).

However, section 441 of the Act allows a worker who has suffered such an injury to sue an employer, other than his own, for civil liability in four very specific situations: (1) if that employer has committed a fault which constitutes a offense under the Criminal Code or an indictable offense within the meaning of this code (2) to recover the excess of the part suffered over the benefit (one can think, for example, of 10% of the net salary that the CNESST does not cover in the payment of the income replacement indemnity) (3) if this employer is responsible for the employment injury or (4) if this employer is personally liable for the payment of benefits.

Take the following example: you are at a convention center for work and a light fixture falls on your head. You can claim compensation from the CNESST because it is a work accident, but you can also sue the convention center or the manufacturer of the light fixture in question, since the fault is attributable to a third party. . However, you can only claim the excess, as mentioned above.

SAAQ

One of the cornerstones of the Quebec auto insurance plan is its coverage without regard to anyone’s liability (commonly known as no-fault).

According to the Law, in the event of bodily injury “caused in an accident”, that is, “any event during which damage is caused by an automobile”, the compensation that the victim may receive is limited exclusively to that paid by the SAAQ. However, it is not possible to institute civil proceedings against the person responsible for a road accident to obtain additional compensation (section 83.57 of the Act).

In a six-to-one majority decision rendered in March 2017, Godbout v. Pagé, the country’s highest court, the Supreme Court of Canada, took stock of the issue. In this case, two road accident victims were suing third parties for compensation for bodily injury. In the judgment, it is stated that:

“The law grants civil immunity to everyone from harm caused in a motor vehicle accident and this immunity applies without exception. As long as there is a plausible, logical and sufficiently close link between, on the one hand, the motor vehicle accident and the events which follow (in this case the fault of a third party) and, on the other However, the resulting damage, all of this damage will be covered by law and the immunity it confers applies. Thus, it does not matter whether this damage has an aggravated or distinct portion attributable to events that occur in the aftermath of the automobile accident: these events will be deemed to be part of the accident, and therefore of the cause of the injury. in its entirety (paragraph 49) ”.

However, if the accident results from an offense, such as impaired driving, hit and run or dangerous driving, prosecution may then be brought against the person responsible for the accident.

IVAC

If you are the victim of a crime, you can take civil action against the perpetrator to claim amounts not paid by IVAC. For example, since IVAC generally pays 90% of the net income earned when a claim is accepted, you could sue for the additional 10% and for other costs that IVAC does not cover.

In short, the same principle still applies: it will not be possible to be doubly compensated for the same accident or criminal act, in the event that you already receive compensation from an organization and you also wish to bring an action before the civil courts. Generally, you can only claim the difference.

Finally, it is important to emphasize that all of these organizations (CNESST, SAAQ, IVAC) may exercise subrogatory remedies, if necessary, up to the amounts paid.

If in doubt, consult us!