CHAPTER 141. An Act to secure Compensation to Workmen in certain cases. SHORT TITLE, s. 1. INTERPRETATION, s. 2. CLAIMS AGAINST EMPLOYERS, ss. 3, 4. NOTICE OF INJURY, s. 10. INJURY BY RAILWAYS, SS. 4, 5. Limit of amount, s. 6. Limit as to time for recovery, DEDUCTION OF PENALTIES FROM COM- COMPANIES, s. 16. DEFENCES IN ACTIONS FOR COMPEN APPLICATION LIMITED AS TO RAILWAY Short title. Interpretation. "Person who has superintendence entrusted to him." ER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. This Act may be known and cited as The Workmen's Compensation for Injuries Act." 49 V. c. 28, s. 1. 2. Where the following words occur in this Act, they shall be construed in the manner hereinafter mentioned, unless a contrary intention appears: 1. "Person who has superintendence entrusted to him" means a person whose sole or principal duty is that of superintendence, and who is not ordinarily engaged in manual labour. "Employer." 2. "Employer" includes a body of persons corporate or unincorporate. "Workman." 3. " Workman" does not include a domestic or menial servant, but, save as aforesaid, means any railway servant, and any person who being a labourer, servant in husbandry, journeyman, artificer, handicraftsman, miner, or otherwise engaged in manual labour, whether under the age of twenty-one years, or above that age, has entered into or works under a contract with an employer, whether the contract be made before or after the passing of this Act, be express or implied, oral or in writing, and be a contract of service or a contract personally to execute any work or labour. "Packing." 4. "Packing" shall mean a packing of wood or metal. or some other equally substantial and solid material, of not less than two inches in thickness, and which, where filled in, shall extend to within one and a-half inches of the crown of the rails in use on any railway, shall be neatly fitted so as to come against the web of such rails, and shall be well and solidly fastened to the ties on which such rails are laid. 49 V. c. 28, s. 2. 3. Where personal injury is caused to a workman— 1. By reason of any defect in the condition of the ways, works, machinery or plant connected with or used in the business of the employer; or 2. By reason of the negligence of any person in the service of the employer who has any superintendence entrusted to him whilst in the exercise of such superintendence; or 3. By reason of the negligence of any person in the service of the employer to whose orders or directions the workman at the time of the injury was bound to conform and did conform, where such injury resulted from his having so conformed; or 4. By reason of the act or omission of any person in the service of the employer done or made in obedience to the rules or by-laws of the employer, or in obedience to particular instructions given by any person delegated with the authority of the employer in that behalf; or 5. By reason of the negligence of any person in the service of the employer who has the charge or control of any signal-points, locomotive, engine, or train upon a railway; the workman, or, in case the injury results in death, the legal personal representatives of the workman, and any persons. entitled in case of death, shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of, nor in the service of the employer, nor engaged in his work. 49 V. c. 28, s. 3. When workman to have claim against employer. 4. Where within this Province personal injury is caused to Injuries by a workman employed on or about any railway, 1. By reason of the lower beams or members of the railways. Exceptions to preceding provisions. 2. By reason of the space between the rails in any railway frog, extending from the point of such frog backward to where the heads of such rails are not less than five inches apart, not being filled in with. packing; or, 3. By reason of the space between any wing-rail and any railway frog, and between any guard-rail and any other rail fixed and used alongside thereof as aforesaid, and between all wing-rails where no other rail intervenes, (save only where the space between the heads of any such wing-rail and railway frog as aforesaid, or between the heads of any such guard-rail and any other rail fixed and used alongside thereof as aforesaid, or between the heads of any such wing-rails where no other rail intervenes as aforesaid, is either less than one and threequarters of an inch or more than five inches in width), not being at all times during every month of April, May, June, July, August, September and October, filled in with packing; such injury shall be deemed and taken to have been caused by reason of a defect within the meaning of sub-section 1 of section 3 of this Act. But nothing in this section contained shall be taken or construed, as in any respect, or for any purpose restricting the meaning of said sub-section. 49 V. c. 28, s. 4. 5. A workman shall not be entitled under this Act to any right of compensation or remedy against the employer in any of the following cases, that is to say: 1. Under sub-section 1 of section 3, unless the defect therein mentioned arose from or had not been discovered or remedied owing to the negligence of the employer or of some person in the service of the employer, and entrusted by him with the duty of seeing that the ways, works, machinery or plant were in proper condition. 2. Under sub-section 4 of section 3, unless the injury resulted from some impropriety or defect in the rules, by-laws. or instructions therein mentioned; provided, that where a rule or by-law has been approved, or has been accepted as a proper rule or by-law, either by the Lieutenant-Governor in Council, or under and pursuant to any provision in that behalf of any Act of the Legislature of Ontario, or of the Parliament of Canada, it shall not be deemed for the purposes of this Act to be an improper or defective rule or by-law. 3. In any case where the workman knew of the defect or negligence which caused his injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence. 49 V. c. 28, s. 5. amount of 6. The amount of compensation recoverable under this Act Limit of shall not exceed such sum as may be found to be equivalent to compensation. the estimated earnings, during the three years preceding the injury of a person in the same grade employed during those years in the like employment within this Province; and such compensation shall not be subject to any deduction or abatement, by reason, or on account, or in respect of any matter or thing whatsoever, save such as is specially provided for in section 9 of this Act. 49 V. c. 28, s. 6. 7. An action for the recovery under this Act of compensa- Limit of time for recovery of tion for an injury shall not be maintainable unless notice that compensation. injury has been sustained is given within twelve weeks, and the action is commenced within six months from the occurrence of the accident causing the injury, or in case of death within twelve months from the time of death; provided always that in case of death the want of such notice shall be no bar to the maintenance of such action, if the Judge shall be of opinion that there was reasonable excuse for such want of notice. 49 V. c. 28, s. 7. to constitute a action for 8. No contract or agreement made or entered into by a Contract by workman shall be a bar or constitute any defence to an action workmanwhen for the recovery under this Act of compensation for any injury, defence to 1. Unless for such workman entering into or making compensation. such contract or agreement there was other consideration than that of his being taken into or continued in the employment of the defendant; nor 2. Unless such other consideration was in the opinion of 3. Unless, in the opinion of the Court or Judge, such con- and the burthen of proof in respect of such other consideration, Money payable under 9. There shall be deducted from any compensation awarded penalty to be to any workman or representatives of a workman, or persons deducted from claiming by, under, or through a workman in respect of any compensation. cause of action arising under this Act, any penalty or damages, Form and service of notice of injury. or part of a penalty or damages which may in pursuance of any other Act, either of the Parliament of Canada, or of the Legislature of Ontario, have been paid to such workman, representatives or persons in respect of the same cause of action; and where an action has been brought under this Act by any workman, or the representatives of any workman, or any persons claiming by, under, or through such workman, for compensation in respect of any cause of action arising under this Act, and payment has not previously been made of any penalty or damages, or part of a penalty or damages under any such Act, either of the said Parliament, or of the said Legislature, in respect of the same cause of action, such workman, representatives or persons shall not, so far as the said Legislature has power so to enact, be entitled thereafter to receive in respect of the same cause of action, any such penalty or damages, or part of a penalty or damages, under any such lastmentioned Act. 49 V. c. 28, s. 9. 10.-(1) Notice in respect of an injury under this Act shall give the name and address of the person injured, and shall state in ordinary language the cause of the injury and the date at which it was sustained, and shall be served on the employer, or if there is more than one employer, upon one of such employers. (2) The notice may be served by delivering the same to or at the residence or place of business of the person on whom it is to be served. (3) The notice may also be served by post, by a registered letter addressed to the person on whom it is to be served at his last known place of residence or place of business, and if served by post shall be deemed to have been served at the time when a letter containing the same would be delivered in the ordinary course of post, and in proving the service of such notice it shall be sufficient to prove that the notice was properly addressed and registered. (4). Where the employer is a body of persons corporate or unincorporate the notice shall be served by delivering the same at or by sending it by post in a registered letter addressed to the office, or if there be more than one office, any one of the offices of such body. (5) A notice under this section shall not be deemed invalid by reason of any defect or inaccuracy therein, unless the Judge who tries the action arising from the injury mentioned in the notice shall be of opinion that the defendant in the action is prejudiced in his defence by such defect or inaccuracy, and that the defect or inaccuracy was for the purpose of misleading. |