WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 654/12

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 654/12 BEFORE: B. Doherty: Vice-Chair HEARING: April 5, 2012 at Toronto Oral DATE OF DECISION: May 1, 2012 NEUTRAL CITATION: 2012 ONWSIAT 965 APPLICATION FOR A DETERMINATION UNDER SECTION 31 OF THE WORKPLACE SAFETY AND INSURANCE ACT, 1997 APPEARANCES: For the applicant insurer: For the respondent: For the interested party A. Transport: Interpreter: M. Edmonds, Lawyer Not participating G. Specht, Paralegal (by written submissions) K.P. Jammu, Punjabi language Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 654/12 REASONS (i) Introduction [1] These are the reasons for decision in an application by an insurer under section 31 of the Workplace Safety and Insurance Act, 1997 ( the WSIA ) seeking a determination that the respondent (whom I shall refer to as Mr. K. ) has no right to statutory accident benefits ( SABs ) because he was a worker of a Schedule 1 employer in the course of his employment at the time of his accident, and is entitled to claim benefits under the WSIA. 1 [2] In addition to the respondent, a numbered company operating as A. Transport and the principal of A. Transport, Mr. S., were served with the applicant s section 31 statement. [3] No respondent s materials were delivered prior to the hearing. The Tribunal did, however, receive a letter from Mr. K. dated March 30, 2012 that stated that he wanted no further action, and that he wanted to abandon his case. Mr. K. indicated in the letter that he would not be attending the hearing. He had, however, been served with a summons by the applicant insurer and was in attendance at the hearing as a witness. [4] In a letter to the Tribunal dated March 29, 2012, counsel for Mr. S. provided the Tribunal with an outline of Mr. S. s position regarding the status of Mr. K. The information from Mr. S. was that Mr. K. was an employee of A. Transport. [5] I heard testimony from Mr. K. Final submissions were provided by counsel for the applicant. (ii) Issues [6] The issues in the application are whether Mr. K. was a worker, and if he was, whether he was in the course of his employment at the time of the accident. (iii) Evidence (a) Background [7] Mr. K. was a driver of a tractor-trailer owned by the respondent numbered company, operating as A. Transport. The applicant insurer insured the vehicle. [8] The respondent Mr. S. was the sole director of A. Transport. He and Mr. K. worked as a team driving the tractor-trailer long distances, alternating between driving and resting. [9] On March 3, 2011, while Mr. S. was driving the tractor-trailer and Mr. K. was sleeping in the sleeper cab of the tractor, they were involved in a single vehicle accident in British Columbia. Mr. K. was injured in the accident. [10] Following the accident, Mr. K. made an application to the Workplace Safety & Insurance Board ( WSIB ) for benefits. His claim was accepted and he was paid benefits by the WSIB. [11] Mr. K. also claimed SABs from the applicant insurer by way of an Application for Accident Benefits dated April 14, Among other things, the application form asks the 1 There is additional relief set out in the application, for example, a declaration that Mr. K. is not entitled to commence an action against any Schedule 1 employer. Such additional relief was not pursued by the applicant insurer at the hearing, and it is not at all clear that a SABs insurer would be entitled to seek such a determination.

3 Page: 2 Decision No. 654/12 applicant to indicate whether, if the applicant is employed, he/she is an employee or selfemployed, and Mr. K. indicated that he was an employee. [12] The insurer s adjuster obtained a statement from Mr. K. on June 15, The statement contains information regarding the relationship between Mr. K. and A. Transport, including the following: Mr. K. had worked for A. Transport for a number of months prior to the accident; he did not own the truck; he was not responsible for the maintenance of the truck; he was paid by the mile and the cheques made out to K. Transport Inc. Mr. K. indicated that he did not know whether amounts for CPP or EI were deducted from his pay; he did not work for any other company; he received his work instructions from A. Transport; and the trips were always long haul trips. He shared the driving with Mr. S. [13] In his testimony, Mr. K. supplemented this information. He stated that Mr. S. (that is, A. Transport) paid for the gas for the truck. Mr. K. did not contact customers, and the trips were organized by Mr. S. [14] Mr. K. stated that he knew that he had workers compensation coverage because Mr. S. had told him so, and he acknowledged that he had claimed benefits from the WSIB. He acknowledged signing the election forms to obtain benefits from the WSIB. He testified that he retained a lawyer subsequently and, although he did not recall completing the Application for Accident Benefits, he agreed that it was his signature on the form. [15] I asked Mr. K. whether he had ever been paid SABs by the applicant insurer, and he stated that he had not been. He then indicated that he did not know who had paid for his physiotherapy. [16] At the time of the hearing, Mr. K. had returned to work. (b) WSIB claim file [17] Prior to the hearing, Mr. K. had not consented to the release of the WSIB claim file relating to this matter. He was given an opportunity at the hearing to review the file with the interpreter, and he subsequently consented to its release to counsel for the applicant and its admission into evidence in the hearing. [18] The evidence from the WSIB claim file relevant to the issues in this application includes the following: both Mr. K., as a worker, and A. Transport, as the employer, reported the accident and Mr. K. s injuries to the WSIB; Mr. S. advised the WSIB that the company looked after Mr. K s workers compensation coverage;

4 Page: 3 Decision No. 654/12 Mr. K signed an Election Form on March 23, The Election Form relates to whether the claimant intends to (1) pursue a lawsuit for damages and apply for SABs or (2) claim WSIB benefits. Mr. K. indicated, among other things, that he had not applied for benefits (such as SABs) from an automobile insurance company. He also told the WSIB that he had not started a lawsuit or settled a lawsuit; in signing the Election Form, Mr. K. told the WSIB that he was choosing to claim WSIB benefits for his injuries resulting from the accident; Mr. K. provided earnings information and records to the WSIB. The records indicate that he reported his earnings from A. Transport as business and not employment earnings for tax purposes; there were apparently deductions for CPP made in Mr. K s payments from A. Transport, but no other deductions; in early April 2001, the WSIB accepted that Mr. K. was entitled to benefits, from March 3, In a letter dated April 14, 2011, the WSIB advised Mr. K. that it had accepted his claim for injuries; that it had characterized him as a dependent contractor, and that it would be paying him loss of earnings benefits; and as of August 2011, Mr. K. was continuing to receive WSIB benefits. (c) Status of A. Transport [19] The Tribunal was advised by the WSIB that the numbered company operating as A. Transport was an active Schedule1 employer at the time of the accident. (iv) Statutory Accident Benefits Schedule and the WSIA (a) Statutory Accident Benefits Schedule [20] The Statutory Accident Benefits Schedule set out in O. Reg. 403/96 under the Insurance Act includes the following restriction on the right to receive SABs: Workers' Compensation Benefits 59. (1) The insurer is not required to pay benefits under this Regulation in respect of any insured person who, as a result of an accident, is entitled to receive benefits under any workers' compensation law or plan. O. Reg. 403/96, s. 59 (1). [21] The regulation goes on to provide that subsection 59 (1) does not apply where the individual elects to bring an action, as long as the election is not made primarily for the purpose of claiming SABs. (b) The WSIA [22] The WSIA states in part as follows: 2(1) In this Act, employer means every person having in his, her or its service under a contract of service

5 Page: 4 Decision No. 654/12 independent operator means a person who carries on an industry included in Schedule 1 or Schedule 2 and who does not employ any workers for that purpose worker means a person who has entered into or is employed under a contract of service 13(1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan. Application of certain sections 27. (1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan. 1997, c. 16, Sched. A, s. 27 (1). Decisions re rights of action and liability 31. (1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine, (c) whether the plaintiff is entitled to claim benefits under the insurance plan. [23] To succeed in this application, the applicant insurer must establish that: Mr. K. was a worker of a Schedule 1 employer and not an independent operator at the time of the accident; that he was in the course of his employment at the time of the accident; and that A. Transport was a Schedule 1 employer. [24] WSIB policy set out in OPM Document No , Workers and Independent Operators, (12 October 2004) provides a description of factors be considered by the WSIB in determining worker/independent operator status. Although WSIB policies are not binding on the Tribunal in section 31 applications, they are considered by Tribunal Vice-Chairs and Hearing Panels to be helpful in the determination of status. (v) Analysis and conclusions [25] It is not clear from the evidence why Mr. K. claimed benefits from both the WSIB and the SABs insurer. Counsel for the applicant insurer suggested that there may have been some confusion on the part of the lawyer who acted for Mr. K. at the time the application for SABs was made. The evidence that I have does not indicate that any SABs were in fact paid to Mr. K. And so, there is no evidence to suggest that Mr. K. received both WSIB benefits and SABs. (a) Was Mr. K. a worker or an independent operator? [26] On the issue of whether Mr. K. was a worker or an independent operator for the purposes of the WSIA, I find that he was a worker.

6 Page: 5 Decision No. 654/12 [27] With respect to the law, counsel for the applicant insurer provided copies of Tribunal Decisions 805/03, 2287/01 and 2276/10 and the decision of the Supreme Court of Canada in Ontario Limited v. Sagaz Industries Canada Inc., [2001] 2 S.C.R. 983 in support of his contention that Mr. K. was a worker and not an independent operator in his relationship with A. Transport. [28] Tribunal Decision No. 805/03 involved a truck driver who had been driving a truck that was owned by a transport company and leased to a carrier. The carrier retained a transport company to supply drivers. The truck driver was killed in an accident, and his widow applied for SABs. The SABs insurer brought an application under section 31 of the WSIA seeking a determination as to the widow s right to SABs. The Hearing Panel concluded that the driver had been a worker. He did not own the truck; it was owned by the transport company and leased to the carrier. The driver was not responsible for any of its operating expenses. He was paid a flat rate and had no opportunity for profit or risk of loss. He was dispatched by the carrier and was directed by the carrier. In the circumstances, the Hearing Panel found that both the carrier and the transport company were employers of the driver. Since the driver was in the course of his employment at the time of the accident, his widow was entitled to workplace insurance benefits and and not to SABs. [29] The second decision relied upon by the applicant in support of its contention that Mr. K. was a worker is the decision of the Supreme Court of Canada in Ontario Ltd. v. Sagaz Industries Canada Inc. The court considered the distinction between an employee (the equivalent of a worker in the WSIA) and an independent contractor in the context of vicarious liability for torts. In paragraphs 47 and 48, the court stated the following: there is no universal test to determine whether a person is an employee or an independent contractor The central question is whether the person who has been engaged to perform the services is performing them as a person in business on his own account. In making this determination, the level of control the employer has over the worker s activities will always be a factor. However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker s opportunity for profit in the performance of his or her tasks. It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. The relative weight of each will depend on the particular facts and circumstances of the case. [Emphasis added] [30] The two other decisions relied on by the applicant in support of its contention that Mr. K. was a worker are Decision No. 2287/01 and Decision No. 2276/10. Decision No. 2287/01 is a case that involved a number of issues, in which a Hearing Panel concluded that a driver was a worker. Decision No. 2276/10 involved an owner of a truck who was found by the Vice-Chair to have been a worker. [31] With respect to the evidence, although there were some indicia of independent operator status in Mr. K s relationship with A. Transport, most notably, that he was considered selfemployed for tax purposes, the preponderance of evidence supports the characterization of the relationship as one involving a worker and an employer. Most significantly, Mr. K. had not made

7 Page: 6 Decision No. 654/12 a capital investment in the truck. The truck that he drove was owned by A. Transport. Mr. K. was not responsible for its expenses. There was no agreement between Mr. K. and A. Transport that the relationship was one of independent operator and principal. Mr. K did not consider himself to be self-employed. A. Transport looked after Mr. K. s workers compensation coverage. A. Transport provided and directed the work performed by Mr. K. There is very little evidence that would suggest that Mr. K. was, in the words of the court in Sagaz, supra, in business on his own account. (b) Was Mr. K. in the course of his employment while he was sleeping in the cab? [32] Mr. K. was sleeping in the cab at the time of the accident. I have considered whether, by sleeping, he had taken himself out of the course of his employment. I have concluded notwithstanding the fact that he was sleeping and not driving, he was nonetheless in the course of his employment. [33] Having two drivers one driving and one resting on a long haul trip is a benefit to the employer because it allows for continuous driving without a break which a lone driver would need in order to rest or sleep. [34] The applicant relies on two Tribunal decisions in support of its contention that Mr. K. was in the course of his employment at the time of the accident. [35] Decision No. 369/00 involved a factual situation similar to the facts in this case. The plaintiff in a civil action was a truck driver. He was part of a team of two drivers who were driving a truck from Toronto to Vancouver. The accident occurred when the plaintiff was sleeping in the sleeper portion of the truck. The Hearing Panel referred to an earlier Tribunal decision, Decision No. 298/95, which found that an individual sleeping in the sleeper portion of the cab was still considered to be in the course of his employment, and concluded that the plaintiff was in the course of his employment at the time of the accident. [36] Decision No. 1770/07 also involved a truck driver who was asleep in the back of the cab while his co-driver was driving. Again, he was found to be in the course of his of employment. [37] There are no decisions that I am aware of that have come to a different conclusion with respect to whether a truck driver who is sleeping in the truck while the co-driver drives is in the course of his employment. (c) Conclusion [38] Because Mr. K was a worker employed by a Schedule1 employer and was in the course of his employment at the time of the accident that caused his injuries, he is entitled to benefits from the WSIB (and in fact he has claimed and received such benefits). Under the Statutory Accident Benefits Schedule in O. Reg. 403/9, the applicant insurer is accordingly not required to pay benefits.

8 Page: 7 Decision No. 654/12 DISPOSITION [39] The application is allowed. The respondent Mr. K. was entitled to benefits from the WSIB, and the SABs insurer is not required to pay statutory accident benefits. DATED: May 1, 2012 SIGNED: B. Doherty