Conviction of an employer for being at fault: limitations of “no fault” for industrial accidents in Quebec

On November 27, 2017, the Superior Court handed down a decision having a potentially significant impact on all employers who have external parties (subcontractors or other) carrying out work in their facilities. In fact, the Société de Transport de Montréal (STM ‒ Montreal transit commission) was held liable to pay more than $1.2 million in damages to two paramedics who suffered post-traumatic stress following an intervention carried out in its facilities. Accordingly, the court held that the STM was liable as a third party who was at fault and, most notably, ordered the payment of substantial amounts for "[translation] the loss of future earning capacity."

Facts

At the start of their work shift, the two paramedics in question were called to intervene with a person in distress in a Montreal subway station. When they arrived on the premises, the train was stopped, the power supply was cut off and the subway cars had been evacuated. Several police officers were also on the tracks when the paramedics were getting ready to respond to the victim’s needs.

While they were stuck under a car, the paramedics heard two resounding train horns in the station. They then saw the police officers flee and start panicking, feeling threatened by an imminent danger and were afraid the train would start running. They nevertheless quickly finished their intervention, but were in a state of shock. They went to emergency where they were examined immediately and put on leave.

The CNESST (Quebec’s standards, equity and health and safety board) accepts their claim for a state of post-traumatic stress – neither paramedic will resume his duties as a paramedic.

Close to three years after the events, the paramedics are filing a suit for damages against the STM. They claim that the attendant who triggered the horn while they were under a car was at fault. They also allege the employees of the STM should have immediately warned them that the horn had been inadvertently triggered and that there was in fact no danger.

Decision

The court recognized early on that the evidence confirms that at no time was the paramedics’ life or safety endangered. All procedures were scrupulously followed by the STM employees and the other participants involved. The court also found that the attendant who triggered the horn was not at fault, because this act was in fact the result of an accident.

However, the court mentions that the paramedics rightly felt threatened when they saw the police officers flee after hearing the horn, while they were stuck under the car. The STM employee who was in charge (the person in charge) at the scene of the accident should have "[translation] rushed over, without delay, to inform the paramedics that there was no danger and reassure them by letting them know that the horn had been activated by accident."

As such, according to the court, the STM is at fault for having notified the paramedics that they were never in danger only when their intervention was completed. Justice Courchesne writes on this subject that it was a case of too little, too late. Had they been reassured without delay with respect to their physical integrity, the judge is of the opinion "[translation] that their damages would have been considerably less, if not inexistent."

Finally, based on actuarial and psychiatric expert reports, the court grants the plaintiffs more than $870,000 as loss of future earning capacity.

Your takeaway

The amounts that the STM was recently ordered to pay by the Superior Court result from a civil action initiated by the two paramedics and is completely unrelated to the amounts that these paramedics could receive as an income replacement benefit granted by the CNESST following a work accident. These paramedics indeed benefited from an exception to the generally recognized principle that an employee may not initiate a civil action when he/she is the victim of a work accident.¹

As a result, a company may be liable on a civil basis following a work accident that took place in its facilities, even if the accident involves a participant who is not an employee, if the company or its representatives were at fault – this liability must normally be limited to the amount by which the loss suffered exceeds the benefits received from the CNESST.

In this case, these are certainly external participants, but it is possible to think that the employees of a subcontractor, for example, could initiate a similar proceeding. In doing so, anticipating the actions and having an adequate procedure to effectively manage emergency situations may be an effective way to minimize risks.

Furthermore, the judge does not linger over the issue of loss of future earning capacity and relies on the expert reports filed by the plaintiffs. Given the amounts at stake, there is little doubt that this matter will not go further, with the outlook of an appeal having been discussed publicly. It will be interesting to follow the debate because its outcome will certainly have repercussions on Quebec companies.

Footnotes

¹ See section 441 of the Act respecting industrial accidents and occupational diseases: "No beneficiary may bring a civil liability action, by reason of an employment injury, against an employer governed by this Act other than the employer of the injured worker, except (…) 2° to recover the amount by which the loss sustained exceeds the benefit (…)."