WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 33/93

Transcription

1 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 33/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11, as amended. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of St. Thomas as Action No. 7/90. B E T W E E N: DONALD QUIN and WARREN GIBSON LTD. and JOVAN SPIROVSKI and YVON BEGIN and FORD MOTOR COMPANY OF CANADA LIMITED and AMERICAN ROAD INSURANCE COMPANY Applicants in this application and Defendants in the Ontario Court (General Division) Action. -and - PETER WILLIAM GOOS, CAROL ANN TRUDELL and PETER JOHN MEZENBERG, CATHY MARIE MEZENBERG and AMY CHRISTINA MEZENBERG, MATTHEW PETER MEZENBERG, SCOTTY DONALD MEZENBERG by their Litigation Guardian, CATHY MARIE MEZENBERG, and YVON JOSEPH PRUD'HOMME by her Litigation Guardian, MARY CATHERINE PRUD'HOMME and RONALD SIMON, IRENE KAESSER and BRIAN DICESARE by his Litigation Guardian, IRENE KAESSER and FRANKLIN JAMES SOLOMON, HELENE ELAINE SOLOMON and FRANKLIN ANDREW SOLOMON, TRISHA MARIE SOLOMON by their Litigation Guardian, HELEN ELAINE SOLOMON

2 Respondents in this application and Plaintiffs in the Ontario Court (General Division) Action. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of London as Action No /90. B E T W E E N : DONALD QUIN and WARREN GIBSON LTD. Applicants in this application and Defendants in the Ontario Court (General Division) Action. - and - YVON OVILA BEGIN, JOSIE BEGIN MICHAEL MacPHERSON and AARON BEGIN, minors by their Litigation Guardian, YVON OVILA BEGIN Respondents in this application and Plaintiffs in the Ontario Court (General Division) Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 33/93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, AND IN THE MATTER OF an action commenced in the Ontario Court (General Division), at the City of St. Thomas as Action No. 7/90, B E T W E E N: DONALD QUIN and WARREN GIBSON LTD. and JOVAN SPIROVSKI and YVON BEGIN and FORD MOTOR COMPANY OF CANADA LIMITED and AMERICAN ROAD INSURANCE COMPANY Applicants/Defendants - and - PETER WILLIAM GOOS, CAROL ANN TRUDELL and PETER JOHN MEZENBERG, CATHY MARIE MEZENBERG and AMY CHRISTINA MEZENBERG, MATTHEW PETER MEZENBERG, SCOTTY DONALD MEZENBERG by their Litigation Guardian, CATHY MARIE MEZENBERG, and YVON JOSEPH PRUD'HOMME by her Litigation Guardian, MARY CATHERINE PRUD'HOMME and RONALD SIMON, IRENE KAESSER and BRIAN DICESARE by his Litigation Guardian, IRENE KAESSER and FRANKLIN JAMES SOLOMON, HELENE ELAINE SOLOMON and FRANKLIN ANDREW SOLOMON, TRISHA MARIE SOLOMON by their Litigation Guardian, HELEN ELAINE SOLOMON Respondents/Plaintiffs

4 AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of London as Action No /90. B E T W E E N: DONALD QUIN and WARREN GIBSON LTD. Applicants/Defendants - and - YVON OVILA BEGIN, JOSIE BEGIN MICHAEL MacPHERSON and AARON BEGIN, minors by their Litigation Guardian, YVON OVILA BEGIN Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

5 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 33/93 Section 17 Applications have been brought in respect of the two court actions noted in the style of cause. The application concerning Court File No /90 was not heard because the lawsuit giving rise to the action was settled. The Section 17 Application rising out of Court File No. 7/90 was heard in Toronto on January 20, 1993, by a Tribunal Panel consisting of: J.P. Moore : Vice-Chair, R.H. Apsey : Member representative of employers, M. Robillard: Member representative of workers. THE SECTION 17 APPLICATION This is an application under section 17 of the Act by the Defendants, Donald Quin, Warren Gibson Ltd., Yvon Begin, Ford Motor Company of Canada Limited, and American Road Insurance Company, in an action commenced in the Ontario Court by the Plaintiffs named in Court File No. 7/90. The Applicants, Donald Quin and Warren Gibson Ltd. were represented by T. McEwen, a lawyer. The Applicants, Y. Begin, Ford Motor Company of Canada Limited and American Road Insurance Company, were represented by S. Hamilton, a lawyer. The Respondents, Plaintiffs in this action, were represented by B. Krkachovski, a lawyer. The Panel was assisted at the outset of the hearing by J. Sajtos, of the Tribunal Counsel Office. One of the Defendants in the above action, Jovan Spirovski, was not an applicant in the proceedings before this Panel and did not receive notice of the application by his Co-defendants. The Panel was advised by Mr. McEwen that attempts were made by his office to serve a copy of the Section 17 Application on Mr. Spirovski, but he could not be located. The Application brought by Donald Quin and Warren Gibson Ltd. in Action No /90 was withdrawn prior to the hearing date. THE EVIDENCE The following materials were marked as exhibits in this Application: Exhibit #1: the Section 15 Application of the Applicants, Donald Quin and Warren Gibson Ltd.; Exhibit #2: the supplementary Section 17 Record of the Applicants, Ford Motor Company of Canada Limited and Yvon Begin; Exhibit #3: a letter to the Tribunal Counsel Office from Matthew G. Duffy, a lawyer, dated January 15, 1993;

6 2 Exhibit #4: a letter to the parties from J. Sajtos of the Tribunal Counsel Office, dated January 8, The Panel heard testimony from the former safety and security supervisor at the St. Thomas plant of Ford Motor Company of Canada, as well as from three of the Respondents. Submissions were made at the hearing by Mr. McEwen, Mr. Hamilton, and Mr. Krkachovski. THE NATURE OF THE CASE These proceedings arise out of a motor vehicle accident which occurred on October 28, The Applicant, Donald Quin, was operating a motor vehicle owned by the Applicant, Warren Gibson Ltd. The vehicle driven by Mr. Quin was involved, on that date, in an accident with a motor vehicle operated by the Applicant, Yvon Begin, and owned by the Applicant, Ford Motor Company of Canada. A third vehicle, operated by one Jovan Spirovski, was also involved in the accident. Two lawsuits arose out of this accident. The passengers in the vehicle driven by Mr. Begin and owned by Ford Motor Company filed a lawsuit, on behalf of themselves and others, in St. Thomas, Ontario (Court File No. 7/90). The plaintiffs in that case consisted of the passengers in the van - Peter William Goos, Peter John Mezenberg, Yvon Joseph Prud'Homme, Ronald Simon, and Franklin James Solomon. Other plaintiffs in the lawsuit were persons claiming damages pursuant to the Family Law Act of Ontario. This lawsuit in issue was filed against: Donald Quin, Warren Gibson Ltd., Yvon Begin, Ford Motor Company of Canada, and Jovan Spirovski. With the exception of Mr. Spirovski, the defendants in that lawsuit joined in an application to this Tribunal under section 17 of the Act. A second lawsuit was brought in London, Ontario, as Court File No /90 by Yvon Begin, and other plaintiffs. The defendants in that action are Donald Quin and Warren Gibson Ltd. The defendants in that action subsequently joined in an application to this Tribunal under section 17 of the Act. We note that this latter lawsuit, Action No /90, was settled prior to hearing the Section 17 Application brought under that action. The Tribunal was informed of this settlement by letter dated January 15, 1993, marked above as Exhibit #3. On the basis of that settlement, the Section 17 Application was withdrawn. In the other action, Court File No. 7/90, all parties to that action are parties to this Application, with the exception of the Defendant, Jovan Spirovski. Noting Mr. McEwen's representation that efforts to serve Mr. Spirovski with a copy of this Application had been unsuccessful, the Panel decided to proceed in Mr. Spirovski's absence. In so doing, we noted that Mr. Spirovski has no apparent interest in the outcome of this Application given the protection afforded to him by subsection 10(11) of the Act which precludes recovery of damages by the Plaintiffs from Mr. Spirovski for any

7 3 negligence attributed to any of the other Defendants. It is also worth recording, in our view, that the action, as against Mr. Spirovski, has been noted in default. The Panel was also informed, as were the parties, in the letter marked Exhibit #4 above, that none of the Respondents has a claim with the Workers' Compensation Board for the injuries arising out of the motor vehicle accident in question. The application arising out of Court Action No. 7/90 seeks a declaration that the action in question is barred by the Workers' Compensation Act. The Applicants, Donald Quin and Warren Gibson Ltd. rely on subsection 10(9) of the Act which provides: 10(9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any executive officer or any director or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury,... The Applicants, Donald Quin and Warren Gibson Ltd. are seeking an order declaring that the lawsuit brought by the Respondents is barred by subsection 10(9) because the Applicant, Donald Quin, and the Respondents were workers of Schedule 1 employers and in the course of their employment at the time of the happening of the accident of October 28, The Applicant, Yvon Begin, seeks a similar declaration, relying on the same subsection, arguing that he was a co-worker of the Respondents, and in the course of his employment, at the time of the happening of the accident. The Applicant, Ford Motor Company, seeks a declaration that the action is barred on the basis of section 16 of the Act, which reads: 16 The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to the worker or any industrial disease contracted by the worker on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof. The Applicant, Ford Motor Company, argues that the Respondents were workers of, and in the employment of, Ford Motor Company, at the time of the happening of the accident, and hence, are barred from taking legal action against the Ford Motor Company for damages arising out of that accident. A number of issues were not disputed. The parties agreed that: 1. Warren Gibson Ltd. was at all material times a Schedule 1 employer;

8 4 2. Donald Quin was at all material times a worker of Warren Gibson Ltd.; 3. Donald Quin was acting in the course of his employment at the time of the accident; 4. Ford Motor Company was at all material times a Schedule 1 employer; 5. the injured Respondents and the Applicant, Yvon Begin, were, at all material times, workers of Ford Motor Company of Canada. Having reviewed the evidence before us, which includes discovery evidence of the parties, and documentary evidence, and relying on the agreement of the parties, the Panel makes findings in accordance with the above agreed statements. Hence, the unresolved issue, and the issue on which evidence and submissions were presented, is whether the injured Respondents in this application were in the course of their employment at the time of the accident of October 28, If so, the actions brought by them are barred by the Workers' Compensation Act. A subsidiary issue is whether the Respondents who are Plaintiffs in this action by virtue of the Family Law Act are also barred from taking legal action by the Workers' Compensation Act. THE PANEL'S REASONS (i) Introduction There is little dispute as to the circumstances surrounding the accident of October 28, The injured Respondents were all passengers in a van driven by the Applicant, Yvon Begin, and owned by the Applicant, Ford Motor Company. The accident occurred as the Respondents were travelling from work at the Ford assembly plant in St. Thomas, Ontario. All parties agreed that the Respondents were "commuting" from work and were not, at the time of the accident, performing any of the duties of their employment. The parties also agreed that the van in which the Respondents were riding was owned by Ford Motor Company and driven by an employee of Ford Motor Company, Mr. Begin. The focus of the argument presented to the Panel was whether the injured Respondents were in the course of their employment when they were injured in a motor vehicle accident while riding in the employer's van. The Panel's conclusion turned, not on findings of fact, but rather on the interpretation to be given to uncontested facts and the legal analysis to be applied to those facts. (ii) The facts In 1983 the Ford Motor Company plant in St. Thomas, Ontario began a van pooling program. This program had been successfully implemented in other Ford plant locations and its development, on a local level, was encouraged. A Ford Motor Company document prepared in 1982 noted that the concept was initiated

9 5 in 1973 in another industry. The document described the advantages of such a program as including: It helps to conserve fuel, reduce pollution and traffic congestion, alleviate parking problems at work locations and reduce commuter transportation costs. The document went on to state: There are three significant types of van pool systems: employer sponsored, third-party sponsored and individually owned and operated. Ford Motor Company uses the employer sponsored system for its employees. When the St. Thomas plant introduced the van pooling program, it published an information circular which outlined the program for the plant workers. The program was described in the following terms: Under the Ford van pooling program groups of 10 to 12 employees, who reside in the same vicinity and have similar start and quit times and meet company requirements may use company owned vans for transportation to and from work. Passengers pay monthly fares based on fixed costs and commuting distances. Driver/co-ordinators ride free, may use the van for certain personal travel and are paid 50% of the fares of the tenth and eleventh passengers. In return drivers must care for the van, collect and remit monthly fares and complete records required by the company. At least one back-up driver/co-ordinator will be named for each van. The "personal travel" allowance for driver/co-ordinators was subsequently detailed in the information circular, stating that each driver/co-ordinator would be allowed 160 kms/month without charge. A fare schedule was published with fares varying according to the full round-trip distance of each van's daily run. When the program was initiated at the St. Thomas plant, the company fostered several van pools. Eventually, however, the program began to grow without the company's encouragement. The workers organized and presented van pooling groups to the company. Once a van pool group had been formed, a new 12 passenger van was provided to the member of the group who was the designated "driver/co-ordinator". The driver/co-ordinator (D/C) had to be approved by the company and signed a four page contract with Ford, setting out the D/C's rights and responsibilities. The D/C had to have a valid class F driver's licence and was responsible for picking up and dropping off all the members of the van pool which he/she operated. The D/C was responsible for maintaining, fueling and cleaning the van as well as for keeping it in a secure place "at home". If the number of passengers fell below nine in any van pool, the pool could be canceled. The D/C was also required to do regular record-keeping. The D/C's report forms included a daily log sheet and a monthly operating expense summary. Only Ford employees could participate in the van program and only the D/C, or a back-up D/C, could drive the van. There were also restrictions on where and how the van could be driven.

10 6 As we noted above, the driver/co-ordinator was allowed to use the van without charge for limited personal use, and have the opportunity to make extra money if he/she could keep the ridership over nine passengers. Although the D/C was responsible for maintaining and fueling the vehicle, he/she was subsequently reimbursed by Ford for all such expenses. The company also paid for all licenses and for insurance on the van. The van pool passengers were also subject to certain rules and had to sign an agreement with the company. Passengers were expected to pay their fare in advance of each month, be at a pre-arranged meeting place at a pre-arranged time, provide notice to the D/C if unable to attend work, and comply with "applicable traffic laws and safety practices". Fare payment was eventually handled by way of payroll deduction. The program was intended to be financially self-sustaining, neither costing nor benefiting Ford financially. The vans carried the Ford logo and were provided with a special parking space in the plant parking lot. The driver/co-ordinators were responsible for determining the route to be used by the pool and could, in theory, pick up or drop off pool passengers wherever the passengers chose. The monthly fare paid by each worker was non-refundable in the event of sickness, absence or vacation. The workers were not paid during their travel time in the van nor were they given any sort of travel expense. The Respondents who testified stated that the program offered a significant financial advantage, reducing, as one Respondent testified, travelling expenses to a quarter of what they were when he used his own vehicle to commute. (iii) The parties' submissions The position taken by the Applicants was, simply put, that the hand of the employer was so clearly present in the van pool program that the participants in that program entered the course of their employment when they entered the van and remained in the course of employment until they left the van. Mr. McEwen and Mr. Hamilton cited Board policy and Tribunal decisions which emphasized the idea of the employer's control over a commuting arrangement and commended this to the Panel as the test to be used in determining whether a particular worker was in the course of his employment while commuting. Board policy on "the course of employment" indicates that, as a rule, the course of employment status ends when a worker leaves the employer's premises. Specifically, a worker will generally not be considered to be in the course of employment when traveling to and from the workplace (Operational Policy Manual, Document # ). The approach adopted by the Board in its policy has been recognized and accepted by the Tribunal in its decisions on this issue. The Applicants' counsel cited, in particular, the following

11 7 excerpt from Tribunal Decision No. 217/88 (May 13, 1988). At page 6 of the decision, the Panel said:...tribunal decisions have applied the general rule that a worker who was traveling to and from the work place is not in the course of his or her employment. In the usual case of a worker traveling to and from work the only fact which connects the travel activity with the employment is the fact that the objective of the travel is to get to work or home from work. The "general rule" has been applied because the mere fact a person is traveling in order to get to work is seen to be insufficiently related to employment to be "in the course of employment". This general rule is subject to a number of exceptions which have developed in cases where the facts are such that there is a stronger employment connection than usually exists with employees traveling to and from work. One of the "exceptions" to the general rule concerning traveling to and from work is set out in the Board policy document cited above. The policy document states that the Board will consider entitlement to compensation in claims where a worker is injured when:...going to or from work in transport under the control and supervision of, or chartered by, the employer,... The Applicants argued that a number of Tribunal decisions accepted, in principle, the exception described in the Board policy. Decision No. 1249/87, 8 W.C.A.T.R. 300 found that a worker who was traveling from her home to a worksite in a van owned by the employer and driven by her supervisor was in the course of her employment. The Panel stated, at pages 307-8: However, in our opinion, a consideration of the factors we have enumerated earlier in this decision leads to the conclusion that there was a substantial employment aspect to the travel arrangements. She was in a van that was at least beneficially owned by her employer. In our view, she was paid for her travel time, albeit at a rate that was half her regular hourly rate. Although she was not mandatorily required to use the transportation service, the evidence discloses that she did not have her own vehicle. The only practical way to get to the worksite was by way of the employer's transportation arrangements. The sites changed on a regular basis. In our view, she effectively was required to use her employer's transportation. The van was driven by her supervisor. While there is no direct evidence as to the nature of the relationship between the supervisor and his workers while they were travelling to and from a job site, we would think that the close proximity of a supervisor to his workers would result in some level of ongoing control over the workers by the employer. Certainly it was the employer that had care and control of the vehicle. We also conclude that, at least in the general sense, the employer had some control over his workers while they were travelling to and from the job sites.

12 8 Decision No. 217/88, cited above, set out a number of criteria which the Panel felt should be considered in determining the employment versus non-employment aspects of the circumstances in which the accident occurred. From page 6 of that decision we note the following list of criteria: - whether the injury occurred on the premises of the employer; - whether it occurred in the process of doing something for the benefit of the employer; - whether it occurred in the course of action taken in response to instructions from the employer; - whether it occurred in the course of using equipment or materials supplied by the employer; - whether it occurred in the course of receiving payment or other consideration from the employer; - whether the risk to which the employee was exposed was the same as the risk to which he was exposed in a normal course of production; - whether the injury occurred during a time period for which the employee was being paid; - whether the injury was caused by some activity of the employer or of a fellow employer. At page 7 of the decision, the Panel outlined the factors that were, in the Panel's view, determinative in that case: We find that the employer assumed the obligation to do more than simply pay added compensation to the workers in the form of a travel expense. Here, the employer assumed the obligation of providing transportation. This was an essential part of the employment relationship because the workers would not come to work for the employer if transportation was not provided. In Decision No. 869/90 (November 30, 1990), the Panel concluded that a worker was in the course of her employment while being transported home in a vehicle owned and under the control and supervision of her employer. At page 4, the Panel set out its reasons for this conclusion: The cleaning job ended in the early hours of the morning. It is obvious that there was no readily available, safe and economical form of transportation home at that hour. The worker, in her testimony at the examination for discovery, expressed concern about how she would get home following the work day. She was advised that the employer would transport her home. The worker viewed this as part of the contract of employment.

13 9 We note that the Panel in that case cited with approval the Board's policy and that the Panel explicitly used the phrase "conveyance under the control and supervision of the employer". Decision No. 189/92 (April 15, 1992), also cited the Board's policy with approval. The Panel, in that decision, concluded that the respondent/worker in that section 17 application was in the course of his employment. The Panel considered it to be "important" that the vehicle in which the respondent was riding was owned and operated by the employer at the time of the accident. The Panel also cited, with approval, the Tribunal's Decision No. 291/90. The Panel concluded: We find the facts of this case to be most similar to those referred to by the Panel in Decision No. 291/90. In that case, workers were driving from the employer's yard to a job site in a company truck operated by the crew foreman. The accident occurred while the workers were en route the the [sic] job site. As in this case, the workers were only paid once they arrived at the job site. Travel in this manner was not a condition of employment, but it was the preferred practice of the employer... In our view, the facts [in this case] fall squarely within those referred to by the Decision No. 291/90 Panel and as well, within the provisions of the applicable WCB policy. The WCB policy does not require that the accident occur while the worker is making use of transportation arrangements which are regular or mandatory. Instead, what is important is that on the occasion in question, the worker be in a conveyance under the control and supervision of the employer. Finally, we were referred to Decision No. 789/91 (April 22, 1992). In that case, the Panel concluded that a respondent in a section 17 application was not in the course of his employment when he was injured in an accident which occurred as he was travelling to work in a car pool run by his foreman. The Panel, in that decision, noted the criteria outlined in Decision No. 217/88. The Panel also cited the following excerpt from Decision No. 674/89 (March 1, 1990): The words "course of employment" denote a broad and general view of the worker's connection with employment over a time period. The phrase is intended, in our view, to address the status of the worker at the relevant time. It is not specific to individual actions of the worker which gave rise to the accident, but seeks to determine whether the worker retains the status characterized by certain indicia of the employment relationship such as remuneration, other benefits, the requirement to follow instructions and rules from an employer, and the completion of certain employment-related tasks, either directly or indirectly. These words are intended to define that period when an individual's life is mostly significantly connected with employment. A determination respecting the status can best be made by a review of the facts to determine whether the worker's activities in general give rise to a significant connection with employment. The Panel in Decision No. 789/91 went on to conclude at page 7: In the Panel's opinion, regardless of whether we analyze the facts before us in the light of the status test proposed by Decision No. 674/89 or

14 10 in the light of the specific criteria outlined in Decision No. 217/88, the conclusion is the same: the non-employment aspects surrounding Mr. Simoes' accident clearly outweigh the employment aspects. As was indicated in Decisions No. 217/88 and 674/89 there are a number of other criteria that must be weighed in addition to that of whether there is a benefit to the employer. Those other criteria, broadly speaking, look to whether the worker has yet taken on the status of an employee or whether the employer has yet exerted control over the worker. In our opinion, neither of those can be said to have occurred in the present case. As we see the car pool arrangement, the focus was not on work but on getting to work. Whatever rights and obligations flowed from that arrangement turn on that exclusive purpose. Whatever the control Mr. Aurelio exercised over the members of the car pool arose out of his status as the car pool operator and not out of whatever status he had at work. In our opinion, it cannot be said that the hand of the employer can be seen in the car pool arrangement or that the employer intended to exert any authority over the members of the car pool as they travelled to and from work. Mr. Krkachovski argued that the van pool operation was, while company initiated, a private arrangement between the driver/co-ordinator and his/her passengers. In his submission, the company's only significant involvement in the program, other than initiating it, was provision of a van. The driver/co-ordinator was responsible for forming the group, keeping the group together, selecting the route to be travelled, maintaining rules within the pool, and ensuring that the pool was able to continue to be viable. Mr. Krkachovski also noted that the workers were not paid during their travel time, nor did they receive any travel expense. The workers were not performing any employment-related activity while travelling in the van nor were they exposed to any of the risks of their usual employment. In his submission, the principal risk to which they were exposed was the usual risk of highway transportation attendant upon commuting to and from work. Mr. Krkachovski cited several Tribunal decisions, the most salient of which, from his point of view, was Decision No. 808/92 (November 30, 1992). In that case, two vehicles were involved in a motor vehicle accident. Both vehicles happened to be transporting workers to work. Citing previous Tribunal decisions, the Panel in Decision No. 808/92 referred to the reliance, in those decisions, on the test of "effective control over transportation arrangements". The Panel in Decision No. 808/92 went on to conclude that none of the parties to the action in issue in that case were in the course of their employment. At page 7 the Panel reasoned, concerning one set of workers: The facts of the case before us are that Messina [the employer] did not obligate Lopreiato and Anania [the workers] to travel to work with him. They were not obligated to accept the ride. There is no indication that this was a means of transportation preferred by Messina. Indeed on some occasions the workers went to the site on their own. They had not yet started to work at the time of the accident that they were not being paid at the time. They accepted the ride as a favour. There was no clear evidence of employer control while traveling to work... When we view the facts of the whole, in

15 11 our view there is not sufficient difference here between the arrangements for Anania and Lopreiato and a worker who has found his or her own way to work. Concerning the other set of workers, the Panel stated at page 8: There is no doubt of mutual benefit in this arrangement. Is this sufficient to place Daniel Nunes in the course of employment at the time of accident? We have concluded the answer is no. In reaching this conclusion, we note that the workers were not paid while traveling, and they were not obligated to travel with the foreman. There is no evidence to show that the foreman exercised any authority over them while traveling to work. They were subject to the same risks of travel as any other workers. In our view, this is not sufficient to distinguish these workers from others who travel to their place of employment without using an employer vehicle. Mr. Krkachovski submitted that the present fact situation was analogous to the fact situations alluded to in Decision No. 808/92 and offered the reasoning in that decision for our consideration. (iv) The Panel's conclusions In the Panel's opinion, this is a case where the general rule against finding a commuting worker to be in the course of his employment does not apply. In our opinion, the commuting workers in this case were in the course of their employment when they were in the van in which they travelled to work. The simple reason for our conclusion is that the van pool in which the Respondents participated was so completely controlled and supervised by their employer that the status of worker was conferred upon them when they entered the van that took them to work. Mr. Krkachovski suggested to us that the arrangement was essentially benefit neutral. That is, it was not intended to be an arrangement that was mutually beneficial to the employer and the worker. However, as we see the arrangement, the mutual benefits are obvious. From the worker's point of view, there was a substantial financial advantage. All of the workers reduced their commuting costs, and some of the workers - those who were picked up at their homes - did not have to use their own vehicles at all for commuting. The company, on the other hand, gained the advantages noted above in the Ford circular, advantages which enhance its image as a corporate citizen and benefit its labour relations position. Moreover, as was indicated in testimony, the van pool arrangement helped to reduce tardiness and relieved some of the congestion in the plant parking lot. Hence, we see the program as something which was of benefit both to the employer and the worker. We view the benefit to the worker as something less than compensation but nonetheless a benefit. However, in the end, the crucial factor, in our view, is the company's control over the program. We note again the excerpt above from the general information circular posted at the St. Thomas plant when the program was initiated. The description of the program describes the program as a "Ford van pooling program" available to employees who "meet company requirements". The description notes that the vans to be used in the program are "company-owned" and that the passengers must pay fixed fares.

16 12 Moreover, the contractual arrangements made with the selected driver/ co-ordinators, whose role could be terminated by Ford at will, marked those individuals as agents of Ford in the operation of the van pool program. The effect of this arrangement was to create a situation in which the passengers in the van were not subject to the usual risks of highway transportation but rather were subject to risks attendant on riding in a company-owned van driven by a company-approved driver who drove that van pursuant to a detailed agreement with the company. This was not a car pool arrangement in which the car pool operator exercised authority over the car pool based solely on his status as driver of the vehicle. In Decision No. 789/91 (cited above), the Panel concluded: In our opinion, it cannot be said that the hand of the employer can be seen in the car pool arrangement or that the employer intended to exert any authority over the members of the car pool as they travelled to and from work. In the present case, the facts dictate just the opposite conclusion. In our opinion, the hand of the employer can be seen quite distinctly in the van pool arrangement and it is clear to us that the employer intended to exert authority over the way in which the van pool program operated. The decision most forcefully cited by Mr. Krkachovski, Decision No. 808/92, is distinguishable from the present case. In that case, the travel arrangements were informal and not marked by rules, contracts, reporting forms, and provision, on an ongoing basis, of a company owned vehicle. In our opinion, these distinctions are crucial. In summary then, we conclude that the employment aspects of the van pool program were such that the workers who participated in that program were in the course of employment while passengers in a company van. Hence, the Respondents in this case, who were injured in an accident while passengers in the company's van, were in the course of their employment at the time of the happening of that accident. As a result, their right to take legal action against the Applicants is barred. Specifically, the injured Respondents are prevented by subsection 10(9) of the Act from taking legal action against Donald Quin, Warren Gibson Ltd., and Yvon begin, because: 1. Donald Quin was in the course of his employment for Warren Gibson Ltd., a Schedule 1 employer, at the time of the happening of the accident; 2. Yvon Begin, as a driver in the Ford van pool program, was in the course of his employment for a Schedule 1 employer, at the time of the happening of the accident in question; 3. The Respondents were all in the course of employment at the time of the happening of the accident in question. The injured Respondents are barred from taking legal action against Ford Motor Company by section 16 of the Act because they were workers in the

17 13 employment of Ford Motor Company at the time of the happening of the accident in question. The effect of this ruling is to take away the right of action of the following Respondents: Peter William Goos, Peter John Mezenberg, Yvon Prud'Homme, Ronald Simon, Franklin James Solomon. (v) The rights of action of the other Respondents As regards the right of action of the Respondents other than those named above, the Panel is of the opinion that, with the exception of the action against Ford Motor Company, the determination of that right falls outside the jurisdiction of the Tribunal. It has been concluded by other Panels of the Tribunal that the Tribunal has jurisdiction under section 10 of the Act over a co-plaintiff only if he/she is a "dependant" as defined by the Act. A "dependant" is defined in section 1 of the Act as follows: 1(1)(f) "dependants" means such of the members of the family of a worker as were wholly or partly dependent upon his earnings at the time of his death or who but for the incapacity due to the accident would have been so dependent. We note that, in the present case, none of the Respondent/Plaintiffs died in the accident. Since, in our view, the co-plaintiffs in this case only become "dependants" for the purposes of section 10 if the injured workers in this case are deceased, their right to sue cannot be decided by us and must be determined in another forum under other legislation. In arriving at this conclusion, the Panel relies on the reasoning of previous Tribunal decisions and on our review of the Act which indicates that such benefits as are payable to a "dependant" are only available where a worker has died. (See Decisions No. 432/88, 571/88, 253/89, and 8/90, and, in particular, the discussion in Decision No. 295/90, at pages 5-6.) In our view, therefore, the question of "dependants'" rights does not arise under the Act unless a worker is deceased. On the other hand, regarding the action against the Ford Motor Company, we note that section 16 of the Act refers, not to "dependants", but to "members of the family". "Members of the family" is defined in section 1 of the Act is follows: 1(1)(t) "member of the family" means a spouse, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother or half-sister, and includes a person who stood in loco parentis to the worker or to whom the worker stood in loco parentis, whether related to the worker by consanguinity or not so related. Evidence was presented in this application which established that those of the Respondents who were not injured in the accident in question were members of the family of those who were injured in the accident, as "members of the family" are defined in the Act. Hence, in our opinion, they fall within the wording of section 16 and this Panel has jurisdiction to take away

18 14 their rights of action against Ford Motor Company as we take away the rights of action of the injured Respondents against Ford Motor Company, their employer. We find, therefore, that all of the Respondents named as Plaintiffs in this action who were not injured in the accident of October 28, 1989, were members of the family of those who were injured and, having taken away the rights of action of those injured workers, we also take away the rights of action of the members of their family, as against Ford Motor Company under section 16 of the Act. THE DECISION The application is allowed. The Panel makes the following determinations: 1. the action of the Plaintiffs listed in Court File No. 7/90 against Ford Motor Company of Canada Limited is declared to be one the right to bring which is taken away by section 16 of the Workers' Compensation Act; 2. the action of the Plaintiffs, Peter William Goos, Peter John Mezenberg, Yvon Joseph Prud'Homme, Ronald Simon, and Franklin James Solomon, as against Donald Quin, Warren Gibson Ltd., and Yvon Begin, is declared to be one the right to bring which is taken away by subsection 10(9) of the Workers' Compensation Act; 3. the rights of action of the other Plaintiffs against Donald Quin, Warren Gibson Ltd., and Yvon Begin, is not determinable by this Tribunal. DATED at Toronto, this 20th day of April, SIGNED: J.P. Moore, R.H. Apsey, M. Robillard.