Written by Daniel Standing LL.B., Editor at First Reference Inc.
In a recent “right to sue application,” Decision No. 550/19, the Ontario Workplace Safety and Insurance Appeals Tribunal considered whether a truck driver who sustained an injury at the workplace a short time after his work assignment ended was entitled to sue the employer. In reaching its conclusion that the right to sue was taken away by legislation, the Tribunal made key findings on the issues of whether the truck driver was a worker or an independent contractor and whether the injury was sustained in the course of the truck driver’s employment.
Mr. C. was a long-haul truck driver. One evening after he had completed a long-haul delivery, he returned the truck to the yard of a trucking company, TC Inc. The yard was poorly lit and icy. After parking the truck, he called his daughter to come to the yard and pick him up. When she arrived some 15 to 20 minutes later, he walked to her car. Noting something on the ground in the yard some distance away and suspecting that he had dropped a glove or a scarf on the way to the car, left the car to check. When he realized there was nothing there, he returned to the car. On the way there, he slipped and fell, breaking his leg.
Under the Workplace Safety and Insurance Act, 1997, a worker who is employed by a Schedule 1 employer is not entitled to sue any Schedule 1 employer in respect of the worker’s injury or disease that is contracted in the course of employment. The parties agreed that TC Inc. was a Schedule 1 employer when the accident occurred.
Issues for the tribunal
To determine whether Mr. C. had a right to sue TC Inc. in relation to his injury, the Tribunal had to determine whether Mr. C. was a worker or, as he claimed, an independent contractor. Next, it had to determine whether Mr. C broke his leg in the course of his employment.
1. Worker or independent operator?
Both parties made submissions to the Tribunal on this issue – TC Inc. contended that Mr. C. was a worker, whereas Mr. C. argued that he was an independent contractor.
The Tribunal was guided by a policy document that provided definitions of a “contract of service,” a “contract for service” and information about the “organizational test” that applies as a basis for determining if a party is an independent contractor or a “worker.” The policy set out a chart listing various factors to be considered in making this determination under the headings “Instructions,” “Training/supervision,” “full-time work,” “licences” and “serving the public.” For each factor, the policy set out related characteristics reflecting the respective roles of a worker or, alternatively, an independent contractor. For example, in relation to full-time work, the policy stated that “workers” typically “must devote full-time to the business of the payer” and that workers are “restricted from doing work for other payers,” while independent contractors are “free to work when and for whom they choose.”
The Tribunal noted that in many cases, a party may demonstrate certain characteristics that align more with one’s status as a “worker,” while other factors are more consistent with an independent contractor. In cases where the factors are “mixed” between the two, the decision maker must determine which description best reflects the overall status of the party. The parties focused on particular factors that supported their respective positions, and the Tribunal ultimately determined that while factors were present on both sides of the equation, Mr. C.’s status was most closely associated with that of a “worker.” Of particular significance was the fact that Mr. C. worked exclusively and on a full-time basis – typically for 70 hours a week or more – for TC Inc. Also, Tribunal jurisprudence indicated that when it is the company and not the driver who owns the truck, this weighs in favour of a conclusion that the driver is a “worker.” In addition to owning the truck, TC Inc. paid for fuel, insurance and maintenance for the vehicle. It also dictated Mr. C.’s driving assignments, which limited Mr. C.’s opportunity for profit or loss. Other factors that weighed in favour of a finding that Mr. C. was an independent contractor either occurred infrequently or were not significant enough to change the overall weight in favour of a determination that he was a “worker.”
2. In the course of employment?
Mr. C. argued that his injury occurred outside of the course of his employment. He said that the amount of time that had lapsed was relevant, meaning that he was not being paid at the time he broke his leg. He also said that he broke his leg while undertaking a personal activity for his own purposes. He said the injury had no connection to his employment.
In response, the company cited Tribunal jurisprudence establishing that the “premises test” applies in such situations. Under that test, where a worker leaves the work place at the end of the workday and sustains injuries as a result of a slip and fall in the parking lot that is under the employer’s control, the worker’s presence in the parking lot is considered incidental to their employment and the worker will be found to be in the course of employment at the time of the accident.
Applying the premises test to the facts of Mr. C.’s injury, the Tribunal determined that his presence in TC Inc.’s yard was incidental to his employment, and he was therefore in the course of employment at the time of the accident. The time lapse of 15-20 minutes while Mr. C. waited for his daughter to pick him up did not change this conclusion because during that time, he was neither loitering nor attending to personal business; he was simply waiting to be picked up. Likewise, the fact that he may have been trying to pick up a personal item when he slipped and fell did not change this conclusion: that activity was found to be reasonably incidental to leaving work, and leaving work was reasonably incidental to his employment.
Based on these findings, the Tribunal concluded that Mr. C., as a worker who suffered his injury in the course of his employment, had no right to sue the company. This right was taken away by the Act.
This case is significant for two main reasons.
First, it illustrates the fundamental importance of properly characterizing the employment relationship. Here, the characterization of the injured party as a worker resulted in the employer’s immunity from a lawsuit at the instance of the worker.
Second, in the context of workers’ compensation regimes, the case provides useful precedent for determining when an accident happens in the course of employment. Employers should know that under the “premises test,” an employee may be found to have sustained an injury in the workplace even if the injury occurs while the employee is off duty, not being paid or attending to an incidental personal task if the employee’s presence at work satisfies the requirements of the test.