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Court Confirms No Free Standing Civil Action for Breaching OHSA

Ontario’s Superior Court of Justice has affirmed the long-standing principle that you cannot sue for a free-standing violation of a statute.  When a plaintiff is seeking civil damages, often they must demonstrate that the defendant actually owed a duty, which when breached caused the plaintiff’s damages.  Plaintiff’s will sometimes rely on the existence of a statutory duty to demonstrate the standard of care to be reasonably expected.  However, unless legislation provides otherwise, the courts have long held that private disputes cannot be based solely on a breach of statutory duty.  The rationale for this principle is that the government has created a regulatory scheme, by which non-compliant parties are then subject to regulatory enforcement and prosecution.

In Ekpenyong v. Versacold Logistics, Mr. Ekpenyong was employed by a temporary employment agency which dispatched him to work at Versacold.  He made a number of allegations (none of which were heard or substantiated by the court) that employees and supervisors at Versacold had failed to report accidents, to comply with health and safety legislation, and had harassed him when he attempted to bring the issues to light.

Versacold brought a motion for summary judgment on a number of grounds.  The court struck the pleadings and dismissed the action on the basis that Mr. Ekpenyong’s claim amounted to a number of free-standing allegations concerning violations of the Occupational Health and Safety Act and the Employment Standards Act, and were in general frivolous and vexatious.  The court also rejected his submission that there had been an implied employment contract between himself and Versacold, and found that although he pleaded violations of his human rights, those allegations had been made baldly, without sufficient basis to ground a cause of action.

Query, would the results have been different if he had brought an action against the staffing agency, or filed reprisal allegations at the Ontario Labour Relations Board?

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