By Kris Bonn

As restaurant operators run their businesses, employer liability is something that must be clearly understood, and it refers to the legal responsibility that employers bear for injuries or illnesses sustained by employees in the workplace. In Ontario, the framework for this liability is primarily governed by the Workplace Safety and Insurance Act (WSIA).

The WSIB system: coverage, claims, and protection

The Workplace Safety and Insurance Board (WSIB) is Ontario’s primary system for handling workplace injuries and illnesses. Most restaurants are classified as Schedule 1 employers under the Ontario Workplace Safety and Insurance Act (WSIA), meaning they are required by law to register for and participate in WSIB.

Mandatory WSIB coverage and how it works

Most restaurants are required to register with WSIB, including full-service, fast-food, and catering businesses. Some exceptions exist, such as certain family-run restaurants without employees, but these exceptions are rare. When an employee is injured in a WSIB-registered restaurant, there are a few actions that need to take place:

The worker reports the injury to their employer, who must then notify WSIB within three days.
The employee may receive compensation for lost wages, medical expenses, and rehabilitation services while recovering.
WSIB typically covers all reasonable costs related to workplace injuries, regardless of fault.
Employers pay premiums based on the industry classification and claims history.

Employer protection

A key feature of WSIB is the concept of the “historic trade-off.” In exchange for mandatory coverage, employers receive protection from most lawsuits initiated by injured employees for workplace injuries. The worker’s sole recourse is to make a claim through WSIB. It is important to note that they may not sue their employer for negligence except in rare circumstances (such as intentional misconduct).

Employer responsibilities

What are the responsibilities of the employer? Restaurant operators and owners under WSIB must:

Complete reporting: Employers must promptly report all workplace injuries and illnesses to WSIB.

Support return-to-work: Employers must make efforts to accommodate and return injured workers to suitable employment.

Manage premium payments: Employers must pay premiums according to the restaurant’s payroll and risk classification.

Maintain health and safety: Employers must maintain a safe working environment, provide safety training, and comply with the Occupational Health and Safety Act (OHSA).

Risks of non-compliance with WSIB

Failure to register with WSIB or report injuries can result in significant penalties, including fines, orders to pay retroactive premiums, and personal liability for unpaid benefits. In addition, workplace safety inspectors may shut down operations until compliance is achieved, potentially resulting in lost business and a damaged reputation for the restaurant. All restaurant owners and operators must register with WSIB and pay premiums to avoid the risk of non-compliance.

Occupational Health and Safety: a universal requirement

Regardless of WSIB status, all restaurant employers are subject to the Occupational Health and Safety Act (OHSA) of Ontario. The Act mandates employers to:

Take every reasonable precaution to protect workers.
Provide training and supervision for safe work practices.
Correct hazardous conditions promptly.
Report serious injuries to the Ministry of Labour.

Failure to comply can result in fines and prosecution for the business, even if no injury occurs.

Practical tips to limit liability in restaurants

Restaurant owners and operators can and should take the following steps to reduce exposure to liability:

Register with WSIB: Register promptly to access coverage and legal protection.
Document safety procedures: Implement clear safety protocols such as training, maintenance, personal protective equipment, and emergency procedures.
Maintain records: Keep detailed records of training, incidents, and corrective actions.
Foster safety culture: Encourage employees to report hazards and near-misses.
Report injuries to WSIB: It is important to promptly report all employee injuries to WSIB. Failure to report employee injuries in the workplace can result in the injured employee not receiving medical treatment and income support while they are unable to work.
Consult legal counsel: Engage a lawyer familiar with Ontario employment and occupational health law for tailored advice.

Proactive measures

Employer liability for injuries in Ontario restaurants is shaped by whether the workplace falls under WSIB or operates outside the regime. For most, WSIB coverage offers vital protection and clear procedures, but it demands diligence in reporting, compliance and paying premiums. For the few non-WSIB restaurants, the risks and obligations under common law are considerable indeed and must be mitigated by strong safety programs and legal advice. Above all, proactive measures to ensure employee safety are both a legal necessity and an ethical imperative in the vibrant, fast-paced world of Ontario’s restaurants.

Kris Bonn, Partner at Bonn Law, lives and practices law in Belleville, Ontario. His practice includes representing plaintiffs in motor vehicle collision tort cases, accident benefits, medical malpractice, and personal injury cases. He is a Past President of the Ontario Trial Lawyers Association (OTLA), and graduated from Queen’s University in 1997 in Commerce and from the University of Toronto Law School in 2000. Kris was called to the Ontario Bar in 2002. Kris is an LSO Certified Specialist in Civil Litigation and is President of the Brain Injury Association Quinte District (BIAQD).