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Employees often defend horseplay as an effective way to make work more fun. But when horseplay turns dangerous, liability accrues to everyone. The story of Daniel Eynon and Simplicity Air is a cautionary tale.

Mr. Eynon foolishly took up a challenge from a coworker to climb a 14-foot-high chain hoist. His trip up the hoist seems to have gone smoothly–going down, not so much. He caught his pants, and then his scrotum, on two hooks and eventually required surgery to repair lacerations to the area.

As if that weren’t painful enough, WSIB denied his claim for benefits, finding that the injury did not take place in the course of his employment, presumably because horseplay was not part of his job description. This left Mr. Eynon with the opportunity to file a civil personal injury claim against his employer, and he promptly did so.

A jury found that Mr. Eynon had suffered $75,000 in general damages and lost $9,000 in wages due to the injury itself. However, those awards were reduced by 75% due to Mr. Eynon’s own contributory negligence, i.e. he should not have climbed the hoist in the first place. This left Simplicity Air with a liability of $21,000, which might not have been a crushing financial blow.

But …

The jury also considered Mr. Eynon’s description of his employer’s conduct in the hour between the time of the injury and his arrival at the hospital:

  • When he was first injured, Mr. Eynon screamed in pain and asked that an ambulance be called.
  • Gary, a supervisor, arrived on the scene, laughed, and refused to look at the injury.
  • Gary refused to call an ambulance and drove Mr. Eynon to a second shop location to talk to Doug, Mr. Eynon’s manager.
  • Doug said they would drive Mr. Eynon home and make sure his car got home.
  • Mr. Eynon called his father, who told him to insist on going to the hospital.
  • Doug agreed that Gary would take Mr. Eynon to hospital, but both Doug and Gary told him to say that the injury happened at home.
  • Gary dropped Mr. Eynon at the entrance of the hospital and did not accompany him inside.

In the words of the Ontario Court of Appeal:

[12] There was sufficient evidence that a properly instructed jury, acting reasonably, could have awarded punitive damages. The supervisors’ instructions to an injured employee to falsely report that he was injured at home, without more, warranted an award of punitive damages. The jury could properly regard these instructions as misconduct offensive to ordinary standards of decent conduct expected of an employer and could be properly described as highly reprehensible. …

[18] … [T]he actions of Gary and Doug occurred within what the jury had determined was “a culture within the company whereby employees failed to place adequate importance on best safety practices”. Accordingly, we do not give effect to the argument that the award of punitive damages against the appellant was unwarranted because the focus was on the misconduct of its supervisory personnel. …

[22] In awarding punitive damages, the jury was instructed to consider the supervisors’ conduct after the accident. The respondent’s contributory negligence leading to the accident was properly not part of the determination of whether punitive damages were warranted. There is no basis for reducing the punitive damages award based on contributory negligence.

The jury’s award of punitive damages against the employer–$150,000–was upheld by the Court of Appeal. Presumably, that hurt.

The take-aways from this cautionary tale are obvious. Horseplay should not be tolerated in the workplace. An injured employee should be immediately and compassionately provided with medical treatment. Honesty and transparency with respect to the reporting of workplace injuries are critical.

None of this is rocket science but in the heat of the moment, humans sometimes behave badly. In this case, decisions made in that one-hour time period cost the employer dearly.

The full case can be found at 2021 ONCA 409 (CanLII) | Eynon v. Simplicity Air Ltd. | CanLII.

If your organization requires any employment law assistance, please feel free to reach out to any member of Siskinds LLP’s Labour and Employment Group.

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