Canadian Law: Understanding Wilful Misconduct and Its Legal Impact

Learn more about wilful misconduct, and how it voids insurance, strips severance, and turns OHS findings into claims Accidents happen. On the other hand, wilful misconduct happens on purpose, and courts have very little patience for it. From punitive damages to voided insurance policies to workers’ compensation disputes, the word “wilful” carries more legal weight than most people realise. Wilful misconduct does not have one fixed definition in Canadian law. Its meaning shifts depending on the legal context, but the common thread running through every definition is that the person knew what they were doing was wrong and did it anyway. Ontario courts have put it most plainly in Plester v. Polyone Canada Inc. , 2011 ONSC 6068 . Here, Justice Wein described the standard as conduct that is “intentional or deliberate,” where “the employee must purposefully engage in conduct that he or she knew to be serious misconduct.” In other words, it is “being bad on purpose.” That is why wilful misconduct has a higher bar than ordinary negligence or even carelessness. In these cases, it must be shown that the conduct was: While this concept that intent is the defining factor is specific to Ontario’s Employment Standards Act, 2000 ( ESA ), it applies across personal injury law, insurance, and occupational health and safety as well. Check out Canadian Lawyer’s Special Report on Canada’s Best Personal Injury Law Firms for a list of the country’s leading personal injury boutiques and firms. Wilful misconduct and gross negligence are both at the serious end of the misconduct spectrum. However, they are not the same thing. The Supreme Court of Canada addressed this as far back as 1942 in McCulloch v. Murray , [1942] S.C.R. 141 . This case described gross negligence, wilful misconduct, and wanton misconduct as conduct involving “a very marked departure from the standards by which responsible and competent people […] habitually govern themselves.” These three can be differentiated in this way: Gross negligence appears frequently in commercial contracts and statutes as the threshold for liability where it would otherwise be excluded. These statutes include the BC Police Act, the Local Government Act, and the Good Samaritan Act. Courts have noted that this standard is flexible, since the higher the duty of care owed in the circumstances, the lower the bar for what counts as grossly negligent conduct. The case of Doern v. Phillips Estate , [1995] 4 WWR 1 , involved a police pursuit, where the officer was found grossly negligent for failing to follow a written pursuit policy, precisely because the standard of care during such a chase was so high. Wilful misconduct goes further, since there’s an additional subjective mental element, where the actor must have known their conduct was wrong. The Ontario Court of Appeal confirmed in Render v. ThyssenKrupp Elevator (Canada) Limited, 2022 ONCA 310 , that wilful misconduct involves “an assessment of subjective intent, almost akin to a special intent in criminal law.” Gross negligence, by contrast, can exist even without conscious wrongdoing. The difference is consequential, both for litigants and their personal injury lawyers. Although gross negligence may trigger liability under a statute or a contract clause, wilful misconduct triggers a different and more severe set of legal consequences altogether. Head over to Canadian Lawyer’s Events page for more in-person lawyer conferences and activities to get insights from legal professionals across the country on various topics. Insurance policies in Canada routinely include exclusion clauses that deny coverage when the insured’s conduct crosses from accidental into intentional territory. The legal principle behind this is called fortuity, where the insurance is designed to cover unforeseen, accidental losses, but not deliberate ones. The Ont