SUMMARY. Right to sue; In the course of employment (reasonably incidental activity test); Words and phrases (while in the employment).

Transcription

1 SUMMARY DECISION NO. 1410/98 Lessing v. Krolyk Right to sue; In the course of employment (reasonably incidental activity test); Words and phrases (while in the employment). The plaintiff in a court action worked as a pilot for the defendant company, S Ltd, which flew in guests to its lodge for bear hunting. S Ltd was a Schedule 1 employer. In addition to flying the airplanes, the plaintiff maintained them and unloaded the passenger's luggage. He also helped around the lodge pumping gas, working in the restaurant and doing general repairs. The defendant F was a guest at the lodge. He advised the defendant K, an executive officer of S Ltd, that he had wounded a bear. K asked the plaintiff if he would assist in a search. The plaintiff was not normally involved in providing bear hunt services. While the plaintiff was participating in the search, he was shot by F and was severely injured. The Vice-chair found that that the phrase "while in the employment", in s. 16 of the pre-1997 Act meant "while in the course of employment". To interpret s. 16 so as to preclude legal action by a worker in any circumstances following an injury involving his/her employer could leave a worker unable to claim benefits for that injury but also unable to pursue a legal action. Such an interpretation would be inconsistent with the "historical trade-off" which is the basis for both s. 16 and s. 10 Act. At the time of his accident, the plaintiff was performing an activity for the benefit of his employer. Bear hunting and, when necessary, searches for bears wounded by guests were part of the employer's business. The fact that there were other employees who more routinely provided bear hunt services and who might have been asked to assist, had they been present, did not change the nature of the activity. Also, the fact that the plaintiff could possibly have declined to join the search did not change the fact that he was engaged in an employment-related activity. He took part in the bear search at the request of his employer. The accident occurred on the bear management area property for which the employer was the licensed operator. The search was organized and directed by K, the president of the plaintiff's employer. The plaintiff was paid a salary rather than an hourly wage and he did not have fixed working hours. Thus, neither the fact that the accident occurred about 7:30 to 8:00 p.m., nor the fact that the plaintiff was not paid an additional amount for time spent in the search, was inconsistent with a finding that he was engaged in an employment-related activity. The plaintiff regularly did quite varied work, in addition to his activities as a pilot. The plaintiff's actions against his employer and K were barred by s. 16. His right of action against F was not taken away. However, under s. 10(11), F would not be liable for any damages, contribution or indemnity which might otherwise be recoverable for the portion of the loss or damage caused by the fault or negligence of K or S Ltd. [10 pages]

2 Page: 2 DECIDED BY: Kenny DATE: 09/10/98 ACT: WCA 16 TRIBUNAL DECISIONS CONSIDERED: Decision No. 170/90 (1990), 14 W.C.A.T.R. 282 refd to; Decision No. 827/92 (1992) apld BOARD DIRECTIVES AND GUIDELINES: Operational Policy Manual, Document No

3 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1410/98 This section 17 application was heard in Toronto on September 23, 1998, by Tribunal Vice Chair M. Kenny. THE SECTION 17 APPLICATION [2] This section 17 application was brought by Mr. William Krolyk and Stewart Lake Airways Limited. They are Defendants in a court action, Thunder Bay Court File No They applied for an order declaring that Mr. Kim Lessing s right of action against them is taken away by the Workers Compensation Act (the Act ). They were represented by their lawyer, G. Mew. [3] Mr. Kim Lessing is the Plaintiff in the court action. He asks that the Applicants section 17 application be dismissed. He was represented by his lawyer, H. MacKenzie. [4] Another Defendant in the court action, Mr. Donald Frevert, supported the Respondent s request to have this section 17 application dismissed. He was represented by his lawyer, G. Birston. THE EVIDENCE [5] Mr. Krolyk and Mr. Lessing testified. The following documentary evidence was considered: Exhibit #1: Applicants Statement Exhibit #2:Pleadings Brief submitted by the Applicants Exhibit #3:Document Book submitted by the Applicants Exhibit #4:Book of Authorities submitted by the Applicants Exhibit #5:Applicants Supplemental Document Book Exhibit #6:July 22, 1998 letter from G. Mew with pleadings Exhibit #7:Applicants Reply Exhibit #8:Statement submitted by D. Frevert Exhibit #9:Respondent s Section 17 Statement Exhibit #10: Respondent s Book of Authorities

4 Page: 2 Exhibit #11: Respondent s Document Book Exhibit #12: Tribunal Counsel s September 3, 1998, memo with copies of correspondence Exhibit #13: THE ISSUES April 27, 1998, agreement between the Minister of Natural Resources and Mr. Krolyk. [6] On or about September 7, 1994, Mr. Lessing was injured when he was shot by Mr. Frevert when he, Mr. Frevert, Mr. Krolyk and another person were searching for a wounded bear. [7] Mr. Lessing was employed by Stewart Lake Airways Limited (referred to in this application as Stewart Lake Airways ). The nature of his employment was such that he was a worker within the meaning of the Act. [8] At the time of the accident, Mr. Krolyk was an executive officer of Stewart Lake Airways, and Stewart Lake Airways was a Schedule 1 employer. Mr. Donald Frevert was an American hunter and guest at the lodge operated by Stewart Lake Airways. [9] Mr. Lessing sued Mr. Frevert, Mr. Krolyk and Stewart Lake for damages for his injury. This is the court action which is at issue in this section 17 application. [10] Since Stewart Lake Airways is Mr. Lessing s employer and it is a Schedule 1 employer, Mr. Lessing s employment is employment to which Part 1 of the Act applies. The issue as to whether the Act takes away Mr. Lessing s right to sue Stewart Lake and Mr. Krolyk is determined by section 16 of the Act. That section states: 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 occupational 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. [11] Thus, if Mr. Lessing s accident happened while he was in the employment of Stewart Lake Airways, Mr. Lessing cannot sue Stewart Lake Airways or Mr. Krolyk for damages for his injury. [12] The issue in this application was therefore: Did the accident which injured Mr. Kim Lessing happen while he was in the employment of his employer, Stewart Lake Airways?

5 Page: 3 THE VICE CHAIR S REASONS (i) The Stewart Lake Airways business [13] At the time of the accident, Stewart Lake Airways was in the business of providing various services to individuals who hunt and fish. It operated a lodge - with a restaurant, gas bar, garage, motel units and several trailers, and it provided air transportation to various hunting camps and locations in the region. It used the operation and facilities to offer a variety of hunting and fishing packages, including the package which brought Mr. Frevert to the lodge to bear hunt. [14] Mr. Krolyk described the bear hunting services provided by Stewart Lake Airways. The Stewart Lake Airways property abutted on Crown land which included a Black Bear Management area. Mr. Krolyk testified that he was the licenced operator for that area. He testified that this licence entitled him, as operator, to use the area for bear hunting during the open seasons for black bear and to exclude any other commercial operators from using it for that purpose. He testified that, about one month before the bear hunting open season started, Stewart Lake Airways personnel would set out pails of bait in a certain part of the bear management area. They would continue to keep the area baited until the hunters came. [15] When the bear hunting season began, Stewart Lake Airways provided services to help the hunters bear hunt. Guests such as Mr. Frevert were provided with meals and accommodation at the lodge. After they obtained a bear hunting licence, Stewart Lake Airways employees would, at least for the first couple of days of the bear hunt, take the hunters to the baited area, drop them off, and then pick them up there later. Mr. Krolyk testified that, if a guest shot a bear, Stewart Lake Airways insisted on having its personnel get the bear out of the area for the hunter. He testified that most hunters killed the bears they shot right at the site. However, if they only wounded the bear, Stewart Lake Airways would search for the wounded bear. He testified that the searches for wounded bear were infrequent - that, in the time period from 1993 until the present, there were probably only 1 to 3 times this occurred (because most hunters kill the bear they shoot right on the site). (ii) Mr. Lessing s job [16] Mr. Lessing is a qualified commercial pilot. In the spring of 1993, he was laid off by the airline he was working with, and he started working for Stewart Lake Airlines in June Both in 1993/1994, and when he previously worked for Stewart Lake Airlines (from 1984 to 1987), Mr. Lessing was hired as a pilot and, if he was not flying or doing other duties connected with flying, he helped out around the lodge. He had, for example, pumped gas, worked at the restaurant, and worked as a handyman doing repairs and yard maintenance during hours when he was not working as a pilot. [17] Mr. Lessing testified that his duties as a pilot involved not only flying the aircraft, but also helping guests load and unload their luggage and equipment, weighing the cargo, putting oil and gas in the airplane, inspecting the airplane, and doing site inspections of camp locations to which

6 Page: 4 he flew the guests. He also testified that, for a couple of weeks before his September 7, 1994, accident, he had been extremely busy working as a pilot because the larger of the two Stewart Lake Airways planes was not in use and he was therefore doing extra flights with the smaller plane. [18] The evidence established that Mr.Lessing was not normally involved in providing bear hunt services, and he had not previously taken part in a search for a wounded bear. Both in 1993 and 1994, other Stewart Lake Airways personnel were primarily responsible for the bear baiting and other aspects of the bear hunt. Other employees as well as Mr. Krolyk and his son were directly involved in providing services to bear hunters. But Mr. Lessing had, on 6 or 7 occasions picked bear hunters up at the bear management area and he had, at some time in the past, helped Mr. Krolyk set up bear baits. [19] Mr. Lessing was paid a monthly salary (which did not vary in accordance with the number of hours he worked each month) and he was provided with accommodation for himself and his family. He did not have fixed working hours. His hours depended on what flights were booked, or what other work he was doing. (iii) The September 7, 1994, accident [20] On September 7, 1994, at about 5 to 6 p.m., Mr. Lessing was shingling the roof of a building on the Stewart Lake Airways property when he heard a shot from a high powered rifle. Some time after he heard the shot, he decided to go up to the restaurant to see whether the American bear hunter had been successful in shooting a bear. He knew that the hunters were guests of the lodge and he intended to congratulate the hunter if he had been successful in getting a bear. When he arrived at the restaurant, the hunter (Mr. Frevert), Mr. Krolyk, and another individual whom Mr. Krolyk identified as a part-time employee (referred to in this decision as Paul ) were drinking coffee. According to Mr. Krolyk, the hunter had advised him that he shot the bear and he asked for assistance in finding it. Mr. Krolyk asked Mr. Lessing and Paul if they would help in the search for the wounded bear. They agreed. The hunter, Mr. Krolyk, and Paul got in one truck and drove to site where they were going to begin the search; Mr. Lessing returned to his residence, picked up his dog, and drove another company truck to the site. [21] Mr. Krolyk arranged the search and directed the other three individuals who participated in it. After searching for about 35 minutes, Mr. Krolyk called off the search. As Mr. Lessing walked back to the vehicle to return to the lodge, he was shot by Mr. Frevert. He was in the bear management area when he was shot. He suffered injuries which required hospitalization and extensive medical treatment. (iv) The submissions [22] The Applicants lawyer argued that, in accordance with the principle of statutory interpretation that words are to be given their ordinary and normal meaning, the section 16 wording taking away a worker s right of action against his/her employer for an accident

7 Page: 5 happening to the worker in the employment of such employer should be interpreted more broadly than similar provisions set out in section 10 of the Act which take away a right of action where workers are in the course their employment at the time of the happening of their injury. Alternatively, he argued that, even if the in the course of employment test required by section 10(9) is used, the worker in this case was in the course of employment at the time of his accident. He referred to the Board policy which states that an accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related. He noted that the worker s accident took place in the bear management area when the employer had an exclusive licence and where Mr. Lessing, as a worker, could reasonably be expected to be. With respect to the time of the accident, the Applicants lawyer noted that the worker had no fixed hours - and that Mr. Lessing had been working (shingling) immediately before going to the restaurant where he met Mr. Krolyk, and might have returned to shingling had he not agreed to take part in the search. With respect to the activity Mr. Lessing was engaged in, the Applicants lawyer noted that it was not an activity to satisfy a personal need - that Mr. Lessing was habitually called upon to do a variety of things to help out and this was a similar thing - an activity which he did to fulfil a company need. He also argued that the fact that the worker used a company vehicle was a further indication that this activity was company business. He asked the Panel to conclude that the activity of searching for the wounded bear was either a work-related duty or an activity reasonably incident to Mr. Lessing s employment. He noted that, when the employer filed a report of accident with the Board following the incident, there did not appear to be an issue as to whether the worker was entitled to benefits. The issue was whether the worker would elect to claim benefits or to bring an action. [23] The Respondent s lawyer asked the Panel to follow the reasoning set out in Tribunal Decision No. 827/92 and to conclude that the meaning of the words while in the employment in section 16 is the same as the words in the course of employment in section 10. He argued that the worker was not in employment or in the course of employment at the time of his accident because he was not engaged in an employment activity and there was no nexus between his employment and the bear search activity he was doing at the time. In this regard, he noted that the accident did not occur at Mr. Lessing s workplace - that Mr. Lessing s workplace was the airplane, the loading and unloading sites Mr. Lessing worked at as part of his flying duties, and the property of the lodge. He argued that Mr. Lessing had never before searched for a wounded bear--that the bear management area where the accident took place was not his worksite, and the search was not part of Mr. Lessing s job. He argued that Mr. Lessing took part in the search simply because he was there and volunteered to assist--that Mr. Lessing was helping out a buddy who also happened to be his employer. He noted that Mr. Lessing was not paid to take part in the search, and he argued that the search was totally unrelated to Mr. Lessing s job. [24] Mr. Frevert s lawyer noted that the various Tribunal decisions which were reviewed in argument had a common thread - they looked at the purpose of the activity which was being engaged in at the time of the accident. He argued that, in this case, searching for a wounded

8 Page: 6 bear was a distinct departure from Mr. Lessing s employment duties as a pilot and occasional handyman. He argued that it was an activity which Mr. Lessing had never done before, and has never done since and that, as such, it was a complete deviation from Mr. Lessing s employment activities. He also argued that no conclusions should be drawn from the fact that Mr. Lessing went to the search site in a company truck because it would be impractical, given the terrain in the area, to drive anything other than a 4 wheel drive vehicle to the area where the search was to begin. (v) The findings [25] For the reasons given in Tribunal Decision No. 827/92, I find that the phrase while in the employment of the employer in section 16 means while in the course of employment with that employer. As indicated in that Tribunal decision, to interpret section 16 so as to preclude legal action by a worker in any circumstances following an injury involving his/her employer could leave a worker unable to claim benefits for that injury but also unable to pursue a legal action. Such an interpretation would, in my view, be inconsistent with the historical trade-off which is the basis for both section 16 and section 10 of the Act. In that trade-off, workers acquired the right to no-fault compensation benefits for work-related injuries in return for surrendering the right to sue employers and other workers. One remedy (i.e., no-fault benefits) was substituted for another remedy (i.e., right to sue) 1. In my view, both the nature of the historical trade-off and the overall purpose of the Act support the interpretation in which the phrase while in the employment of the employer in section 16 means while in the course of employment with that employer. [26] In deciding whether a worker s accident occurred in the course of employment, both Board policy 2 and Tribunal decisions interpreting the Act and policy have looked at circumstances surrounding the happening of the accident in order to see whether there is a sufficient work-connectedness to conclude that an accident has occurred while a worker was in the course of employment. Circumstances relating to the place where the accident occurred, the time of the accident, and the activity the worker was engaged in at the time of the accident are important criteria for deciding whether the accident has happened while a worker was in the course of employment. In most cases, the activity the worker was engaged in at the time of the accident is of particular importance. [27] In deciding whether an accident happened while a worker was in the course of employment, the Board policy and Tribunal decisions have defined employment broadly to include not only the activities which are part of a worker s job description or regular 1 Tribunal Decision No. 170/90, (1990) 14 WCATR 282 at pg Board Operational Policy Document No

9 Page: 7 employment activities, but also activities which are more broadly related to employment - activities which are reasonably incidental to (related to) the employment 3. [28] Having carefully considered all the evidence in this case, I am satisfied that Mr. Lessing s accident occurred while he was in the course of his employment with his employer. [29] At the time of his accident, he was performing an activity for the benefit of the employer. Bear hunting and, when necessary, searches for bears who were wounded by a bear hunter/guest of the employer were part of the employer s business. When engaged in this activity, Mr. Lessing was performing an activity which was an activity carrying out an aspect of his employer s business. The fact that there were other employees who were more routinely involved in providing bear hunt services and who might have been asked to assist had they been present does not change the nature of the activity. Also, the fact that Mr. Lessing could possibly have declined to join the search party when his employer asked for his assistance does not change the fact that Mr. Lessing was engaged in an employment-related activity when he took part in the bear search. He took part in the bear search at the request of his employer. The accident occurred on the bear management area property for which the employer was the licensed operator - an area where the employer normally conducted some aspects of its business and where a worker of this employer might reasonably have been expect to be while engaged in a work-related activity. And the search itself was organized and directed by Mr. Krolyk, the president of the company which employed Mr. Lessing. It was an activity which was done for the benefit of the employer, under the direction and supervision of the employer. [30] There was nothing about Mr. Lessing s remuneration or his working hours which indicated that he was not in the course of employment. The evidence established that he was paid a salary rather than an hourly wage. It also established that he did not have fixed working hours - that the hours he worked depended on what work he was doing on a particular day. Thus, neither the fact that the accident occurred about 7:30 to 8:00 p.m., nor the fact that he was not paid an additional amount for time spent in the search, is a fact which is inconsistent with a finding that Mr. Lessing was engaged in an employment-related activity at the time of his accident. Also, the Mr. Lessing regularly did quite varied work activities - in addition to his work activities as a pilot. [31] I find that Mr. Lessing s accident happened while he was in the course of his employment with his employer, Stewart Lake Airways, and that section 16 of the Act therefore takes away his right to sue Stewart Lake Airways and its executive officer, Mr. Krolyk. [32] The Act does not take away Mr. Lessing s right to sue Mr. Frevert. The Act does, however, provide that Mr. Lessing cannot recover from Mr. Frevert (a Defendant who is not 3 Board Operational Policy Document No

10 Page: 8 protected from suit by the Act), any damages, contribution or indemnity for any portion of loss or damage caused by the fault or negligence of Stewart Lake Airways or Mr. Krolyk 4. THE DECISION [33] The application is allowed. 1. The action of Mr. Kim Lessing against Stewart Lake Airways Limited and Mr. William Krolyk is barred by section 16 of the Act. 2. The action of Mr. Kim Lessing against Mr. Donald Frevert is not taken away by the Act. However, pursuant to section 10(11) of the Act, Mr. Donald Frevert will not be liable for any damages, contribution or indemnity which might otherwise be recoverable in this action for the portion of the loss or damage cause by the fault or negligence of Stewart Lake Airways Limited or Mr. William Krolyk. DATED: October 9, SIGNED: M. Kenny 4 Section 10(11) of the Act.