Right-to-sue decisions at Workplace Safety and Insurance Appeals Tribunal can be fact-driven: lawyer

Decision pertains to slip-and-fall accident in a parking lot after worker’s normal work hours

Right-to-sue decisions at Workplace Safety and Insurance Appeals Tribunal can be fact-driven: lawyer

In a decision released by the Ontario Workplace Safety and Insurance Appeals Tribunal, a bakery manager who was in an accident outside of his work premises and beyond work hours was still considered to be in the course of employment.

In Decision No. 1375/20, 2021 ONWSIAT 270, the respondent, who was employed as a bakery manager for a supermarket, left his workplace in the evening and drove to a wholesale bakery to sample a product on behalf of the supermarket. After his meeting, he walked back from the bakery loading dock to his car in the parking lot, then tripped and fell.

The worker sought damages in the Ontario Superior Court of Justice against the property manager of the premises and the grounds maintenance company, who in turn filed a right-to-sue application under s. 31 of the Workplace Safety and Insurance Act, 1997.

The panel of the Ontario Workplace Safety and Insurance Appeals Tribunal said that the combined effect of the relevant Workplace Safety and Insurance Act provisions was that workers of Schedule 1 employers, who suffer injuries arising in the course of their employment, cannot file actions relating to those injuries against other Schedule 1 employers.

The panel, stressing that the main focus of this decision should be on the nature of the worker’s activity at the time of his slip-and-fall accident, found that the worker was in the course of employment when he sustained the injury. It found he was performing an activity reasonably incidental to his employment, despite the lack of remuneration and explicit instructions from his employer and despite the accident’s occurrence beyond the worker’s regular work hours. He was found to be in the course of employment, also despite being at a location which was under the care and control of neither his own employer or of the other Schedule 1 employer to whom he was driving.

The panel determined that the worker would not have made the trip to the bakery but for his work duties and was only at that area to carry out tasks related to his job. The panel said that the fact that the worker chatted with the bakery’s employees was not enough to remove him from the course of his employment, given that workers engaging in brief interludes of personal activity are often still within the course of their employment.

The panel differentiated this decision from Decision No. 381/10, wherein the plaintiff was in that particular location where the accident occurred because she was waiting for a ride home after the end of her work day, and not because she was performing an activity for the benefit of her employer.

The panel thus took away the worker’s right of action with respect to the accident. Under s. 31(4) of the Act, the worker could file a claim for benefits within six months after a determination has been made under s. 31, the panel added.

Ryland MacDonald, lawyer at Strigberger Brown Armstrong LLP, analyzed the decision in a blog post. MacDonald said that it sheds light on how right-to-sue applications may be fact-driven, with the decision likely depending on the specific facts and on the tribunal’s interpretation.

“As such, it is difficult to suggest that this decision will have any precedential value aside from the fact that under certain circumstances the distinction of when an activity is ‘reasonably incidental’ to a worker’s employment is not so obvious,” wrote MacDonald.

MacDonald suggested that the panel in this decision could have offered examples of when the worker would not have been deemed to be within the course of his employment.

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