Published in: Insurance Law Newsletter - 18.Mar.16 March 18, 2016

Case Summary: It is contrary to public policy to allow individuals to contract out of a statutory provision

Insurance law – Liability insurance – Waiver – Statutory provisions – Public policy rule – Employee, definition

Fleming v. Massey

A waiver signed by an employee was arguably invalid, as it would be contrary to public policy to allow individuals to contract out of the protection provided by the statutory right of action available to employees not covered by workers compensation.

[2016] O.J. No. 399

2016 ONCA 70

Ontario Court of Appeal

January 26, 2016

K.N. Feldman, R.G. Juriansz and D.M. Brown JJ.A.

The plaintiff appellant was injured in an accident at a go kart race at which he was the race director. The defendant respondents were the individual who drove the go kart that injured the appellant, the racing park where the accident occurred, two groups which had co‑organized the racing event during which the accident occurred, one of whom had arranged for the appellant to act as race director, and the society which owned the property on which the track operated. The appellant was acting as the race director on a one time basis on the day the accident occurred, as the regular race director was not available that day. He signed a waiver, which the respondents argued released them from liability for all damages associated with participation in the event due to any cause, including negligence.

The respondents brought a motion for summary judgment. The motion judge dismissed the action, finding that the appellant was not an employee, but was rather a volunteer who received a stipend, that he signed the waiver, that he knew generally what signing the waiver would mean, and that the wording of the waiver was broad enough to cover all eventualities. That decision was appealed to the Ontario Court of Appeal.

On appeal, the appellant’s main submission was that the waiver was void because it violated public policy, as the appellant was an employee. The Court of Appeal found that the motion judge erred in finding the appellant was not an employee. The parties agreed that the appellant was not an insured worker under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A. This was because go kart tracks are classified as “non-covered” facilities and workers at such facilities are not insured unless the employer has applied for coverage under the Act. The respondent track in this case had not applied for coverage. Therefore, the parties fell under Part X of the Act, which provides an exception to the workers’ compensation scheme established by the other parts of the Act. Instead of employers under Part X contributing to the worker’s compensation scheme, Part X provided workers with certain statutory rights of action for damages that abrogate some of the common law restrictions on workers’ rights of action against employers. The Court of Appeal found that Part X served the general public policy of the Act to ensure workers can receive compensation for injuries they suffer in the workplace and concluded that it would be contrary to public policy to allow individuals to contract out of the protection of the Act. In the result, the appeal was allowed and the order granting summary judgment was set aside and the action was allowed to proceed to trial.

This case was digested by Emily M. Williamson and edited by David W. Pilley of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact them directly at or or review their biographies at