Right to sue; In the course of employment (proceeding to and from work); In the course of employment (reasonably incidental activity test).

Transcription

1 SUMMARY 766/91 DECISION NO. 766/91 Foley v. Bondy PANEL: B. Cook; Lebert; Preston DATE: 13/03/92 Right to sue; In the course of employment (proceeding to and from work); In the course of employment (reasonably incidental activity test). The defendant in a civil action applied to determine whether the plaintiff's right of action was taken away. The issue was whether the parties were in the course of employment at the time of a motor vehicle accident. Both parties were owners of their respective businesses and had personal coverage. The defendant had left the business premises and was planning to stop on his way home at a potential client to give an estimate. The Panel found that the defendant was in the course of employment. The plaintiff was on her way home. She had some business-related videos with her which she intended to watch at home. There was no indication that she intended to watch the videos immediately. The Panel found that there was no significant employment-related element to the drive home. The plaintiff was not in the course of employment. Accordingly, her right of action was not taken away. [12 pages] WCAT Decisions Considered: Decision No. 547/87 (1988), 8 W.C.A.T.R. 160 refd to; Decisions No. 436 refd to, 736/87 refd to

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 766/91 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c.539, as amended. AND IN THE MATTER OF an action commenced in the Supreme Court of Ontario at the City of Chatham as Action No. 1646/89. B E T W E E N: JOHN FOLEY and JOHN FOLEY HEATING Applicant in this application and Defendant in the Supreme Court of Ontario Action. - and - GLORIA BONDY, GLORIA BONDY LTD., And GREGORY BONDY Respondents in this application and Plaintiffs in the Supreme Court of Ontario Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 766/91 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the Supreme Court of Ontario, at the City of Chatham, as Action No. 1646/89. B E T W E E N: JOHN FOLEY and JOHN FOLEY HEATING Applicant/Defendant - and - GLORIA BONDY, GLORIA BONDY LTD., and GREGORY BONDY Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 766/91 This application was heard in London on October 17, 1991, by a Panel of the Tribunal consisting of: B. Cook : Vice-Chair, K.W. Preston: Member representative of employers, R.J. Lebert : Member representative of workers. THE SECTION 15 APPLICATION This application under section 15 of the Workers' Compensation Act, R.S.O. 1980, c. 539, arises out of a motor vehicle accident which occurred on July 29, This accident gave rise to the plaintiff's action for damages and an action under the Family Law Reform Act, R.S.O. 1980, c The Applicants before the Panel were the Defendants, John Foley and John Foley Heating. The Applicants were represented by James K. Brown, barrister and solicitor. The Respondents before the Panel were the Plaintiffs, Gloria Bondy, Gloria Bondy Ltd. and Gregory Bondy. The Respondents were represented by their lawyer, Stephen J. Fuerth. Final written submissions from counsel in this case were received by the Panel on November 28, THE EVIDENCE Ms. Bondy and Mr. Foley gave oral evidence. The Panel also considered the following exhibits: Exhibit #1: Applicant's statement of fact and law; Exhibit #2: Respondent's statement of fact and law; Exhibit #3: statement of Gloria Bondy, dated September 24, 1991; Exhibit #4: correspondence between the parties and Tribunal counsel; Exhibit #5: extracts from the WCB Foley firm file; Exhibit #6: letter of October 11, 1991, from Mr. Fuerth to Tribunal counsel; Exhibit #7: map of the Windsor/Chatham area; Exhibit #8: accident report of July 29, 1987, prepared by Ms. Bondy;

5 2 Exhibit #9: post-hearing information under cover of a November 28, 1991 memo from J. De Girolamo. THE NATURE OF THE CASE On July 29, 1987, at approximately 4:30 p.m., a vehicle being driven by Mr. Foley struck a vehicle being driven by Ms. Bondy. Ms. Bondy was turning into the driveway of her residence at the time of the accident. It is the position of the Applicants that both Mr. Foley and Ms. Bondy were in the course of their respective employments at the time of the accident. The position of the Respondents is that neither party was in the course of his/her employment at the time of the accident. John Foley is the owner and an executive officer of Jack William Foley Heating and Cooling Ltd. Counsel agreed that at the time of the accident, Mr. Foley had personal coverage, pursuant to section 11 of the Act. Section 11 reads as follows: 11(1) On application, an employer, an independent operator, a person the Board deems to be an employer, or an executive officer of a corporation may elect to be deemed a worker for the purposes of this Act, provided that, (a) he is carried on the payroll of the business at his actual earnings for the year, or files with the Board a statement of his estimated earnings for the year which is acceptable to the Board; and (b) he consents to the application. (2)A person shall not be deemed under subsection (1) to be a worker unless th (3)No person deemed a worker under subsection (1) shall be entitled to more c Ms. Bondy is the president and owner (except for one share) of Gloria Bondy Ltd., which owns and operates a number of dance studios in southern Ontario. There is no dispute that Ms. Bondy also had personal coverage under the terms of section 11 at the time of the accident. Accordingly, both parties are deemed to be "workers" for the purposes of the Act. Section 8(9) of the Act reads: 8(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 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, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the

6 3 negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers. The question which the Panel must decide is whether Mr. Foley and Ms. Bondy were in the course of their respective employments at the time of the accident. THE PANEL'S REASONS (i) The evidence concerning whether Mr. Foley was in the course of his employment Mr. Foley testified that he is currently 69 years of age. He continues to be active in his business. In 1987, at the time of the accident, he had five employees. He did most of the estimates and did some of the work in the field. He spent much of his time at the company's shop. At the time of the accident, he was driving a truck which was owned by the business, but which he also used for personal reasons. He had tools and equipment associated with his trade in the truck. The shop is located on Centre Street, in the City of Chatham. In July 1987, Mr. Foley's residence was in Rondeau Park, on Lake Erie, about 20 miles from Chatham. Previously, this had been a recreational property, but in 1986, Mr. Foley sold his home in Chatham, and moved permanently to the Rondeau Park residence. It is Mr. Foley's evidence that at the time of the accident, he was on his way to Rondeau Park. On his way, he was intending to stop at a residence, to give an estimate on the installation of an air conditioner. He had previously arranged with this potential customer that he would drop by at some point to give the estimate. He had not phoned in advance to ensure that she would be at home when he arrived. The residence in question is located in Wilsonwood, a development which is Southeast of the Centre Street shop. There is a direct route to Wilsonwood from the Centre Street shop. Centre Street runs parallel to Queen Street, and the two are separated by a short block. Queen Street turns into Charing Cross Road, which is the street which runs through the Wilsonwood development. Accordingly, once Mr. Foley got onto Queen Street, he would keep on the same roadway until he reached Wilsonwood. Ms. Bondy's residence is on Queen Street, about equidistant between the Centre Street shop and Wilsonwood. Mr. Foley testified that if he were going to his home from his shop, he would proceed East on Park Street, rather than going down Queen Street. From Park Street, he would go to Park Avenue, which turns into Highway 40, which leads to Highway 401. Mr. Foley agreed with Mr. Fuerth that he could easily get to his cottage from Queen Street, but he says that this is a less direct route, and from his experience, Queen Street is a busy street. The Park Street/Avenue route is more direct and less busy.

7 4 There was considerable discussion at the hearing about whether the fact that Centre Street was one way North was at all relevant. It appears to the Panel, however, that this is not a relevant fact. The fact that Centre Street was one way simply made Mr. Foley's route slightly less direct, requiring him to loop around a few blocks. This would seem to be the case, however, no matter where he was intending to go. Mr. Foley's evidence to the Panel is essentially consistent with the evidence which he gave during his examination for discovery. He stated then that at the time of the accident, he was coming from his shop on Centre Street. He was asked where he was going, and replied as follows: I was going to - this Wilsonwood, this subdivision in Wilsonwood, which is on the left hand side of Queen Street out about another possibly quarter of a mile. Later, in the discovery, he said that he was planning to stop off at the Wilsonwood location on his way home. Mr. Fuerth invites the Panel to give particular weight to the evidence of Ms. Bondy with respect to the question of Mr. Foley's destination at the time of the accident. Mr. Foley and Ms. Bondy knew each other relatively well at the time of the accident. They had both been involved in local service clubs and on this basis, had known each other for several years. It was obvious to the Panel that they are on friendly terms. It would therefore be reasonable, Mr. Fuerth suggests, for them to have discussed circumstances relating to the accident. Ms. Bondy recalls that she had a conversation with Mr. Foley about various things relating to their acquaintanceship over the years, while they were waiting for the police to arrive at the accident scene. At some point, Ms. Bondy recalls Mr. Foley stating that he was on his way home at the time of the accident. She does not recall him saying that he was planning to go to Wilsonwood first. In a similar vein, Mr. Fuerth advised the Panel that the investigating police officer's notes might contain relevant information concerning Mr. Foley's destination. He asked that these be obtained post-hearing, to determine if anything was recorded by the officer on this point. Mr. Fuerth indicated that the procedures with respect to obtaining such evidence has changed, and as a result, he had been unable to obtain the notes prior to the hearing. Mr. Brown had no objection to the Panel obtaining this information, and the Panel did so. In the result, however, the notes add nothing of relevance on this point, as both counsel agreed in their final, written submissions. (ii) The evidence concerning whether Ms. Bondy was in the course of her employment Ms. Bondy is a dance instructor. She has had her own dance studio business for many years. Her company operates a number of studios in different centres in Southern Ontario. The main studio is located in Chatham, where Ms. Bondy resides. The Chatham studio is located on King Street.

8 5 The business is tied to the public school system calendar. Classes are offered from September to June, and the studios are closed during the summer months. The business employs about ten staff, including her two children. During the summer, the staff are laid off. The business pays Ms. Bondy an annual salary, which in 1987 was paid in one installment at the end of the year. She also occasionally takes a draw, but does not receive a regular paycheque. During the summer months, Ms. Bondy normally does some work associated with the business. This includes, planning for the next year, arranging staffing and schedules, class preparation and development of new dance routines. She does some of this work at home, but some of it requires her to go to the office. Ms. Bondy testified that she does not claim any portion of her house as a business expense for income tax purposes. She does not have a separate office space in her home, and often uses the dining room table to work on. Part of the preparation for the upcoming year involves reviewing videos of dance routines. The videos are obtained by mail, and are usually sent to the King Street studio. The business owns video equipment, but in the summer of 1987, this was all stored in the Sarnia studio. Ms. Bondy agreed that during her examination for discovery, she may have indicated that the equipment was being stored at her residence, but she stated to the Panel that this was not the case. On July 27, 1987, the day of the accident, Ms. Bondy had arranged to meet her son at the studio, to discuss arrangements for the up-coming year. There was nothing that specifically had to be done on that particular day, but there were things which needed attending to. This meeting took about an hour and a half. Ms. Bondy also wanted to pick up three video tapes of dance routines which had arrived. Since there was no equipment at the studio, she took the tapes home to watch them on her personal equipment. Ms. Bondy indicated that each video was about an hour in length. At the time of the accident at 4:30, Ms. Bondy was turning into the driveway of her residence with the three video tapes in the car. Ms. Bondy's residence is only a few minutes by car from the studio. The evidence concerning when exactly Ms. Bondy intended to view the video tapes is somewhat equivocal. Exhibit #8 in these proceedings is an "accident report", dated July 29, Ms. Bondy told the Panel that she prepared this report so that she would have a clear record of what precisely happened concerning the accident of July 27, The report reads in part: Returning from my dance studio to my home at 674 Queen Street at 4:30 pm. Due to lack of video equipment in studio - brought all videos and books home to work here that evening. In my home office as I so often do. Exhibit #3 is a statement dated September 24, 1991, prepared for this hearing. On this question, it states: On the day in question, I was returning to my home and was intending to use my personal VCR equipment at home for the purpose of viewing tapes for my instructors.

9 6 During her evidence to the Panel, Ms. Bondy agreed that it was her intention to view the videos at home. She stated, however, that she was not necessarily going to do it right away. She said that she had a few weeks to look at them. As she lives alone, her time is unstructured, especially during the summer. She said "I might have done it later that evening, or maybe on the weekend". After the accident, Ms. Bondy notified the WCB of the accident. She advised the Panel that she did this on the advice of her accountant. The Board advised her that it was possible that she had a right of action, and asked her to provide the Board with further details. The claim with the Board was not pursued further. (iii) The position of the parties On behalf of the Applicants/Defendants, Mr. Brown submits that the question of whether Mr. Foley and Ms. Bondy were in the course of their respective employments, is answered by examining whether the accident was reasonably incidental to those employments. In support of this, he refers the Panel to Decision Nos. 547/87 (8 W.C.A.T.R., 160), 736/87, and 436, and a Supreme Court of Canada decision, Workmen's Compensation Board v. C.P.R. and Noell, [1952] 3 D.L.R With respect to the status of Mr. Foley, Mr. Brown asks the Panel to accept Mr. Foley's evidence that he was on the way to give an estimate on a job before going home. He was travelling in a company vehicle, which had tools of the trade in it. In Mr. Brown's view, the reason that Mr. Foley was on the road at the time of the accident was reasonably incidental to his employment. With respect to Ms. Bondy, Mr. Brown submits that she too, was on the road for reasons which were reasonably incidental to her employment. She was going home to watch dance videos for the purpose of her employment. Mr. Brown suggests that it is not relevant when she was actually going to watch the videos. At the time of the accident, she was in the process of bringing videos home to watch. On behalf of the Respondent Plaintiffs, Mr. Fuerth points out that the general rule in workers' compensation law is that workers are not in the course of employment when traveling to and from work. While there are exceptions to this rule, those exceptions are not applicable in this case. With respect to Mr. Foley, Mr. Fuerth asks the Panel to find that Mr. Foley was in fact traveling home at the time of the accident, rather than going to do an estimate. He notes in particular that Ms. Bondy recalls Mr. Foley saying that he was going home at the time of the accident. He suggests that Ms. Bondy seems to have a clearer recollection of specific events than does Mr. Foley. With respect to Ms. Bondy, Mr. Fuerth notes that she was driving home from work. He argues that she can not be found to be in the course of her employment simply because she happened to have some work related materials with her at the time of the accident. By way of analogy, Mr. Fuerth invited the Panel to consider our own situation. He pointed out that it is common for

10 7 us to take work home from the office - perhaps a case to be read the next day. If we have an accident on the way home, Mr. Fuerth submits that it is not reasonable to suppose that we are in the course of our employment simply because we have the next day's case with us at the time. He submits that there is no evidence that Ms. Bondy was going to view the tapes immediately upon her return home. (iv) The Panel's conclusions In our view, the question in this case can best be framed as follows: were the circumstances of the accident reasonably incidental to the respective employments of Mr. Foley and Ms. Bondy? If so, both workers would be found to be in the course of employment, and there would be no right of action in this case. The Panel notes that both Mr. Foley and Ms. Bondy were "traveling home" at the time of the accident. The general rule in workers' compensation law, as noted by counsel, is that workers who are simply traveling to or from work are not considered to be in the course of employment, unless there is a significant employment-related element to be found in the circumstances as well. To deal first with the status of Mr. Foley, the Panel found Mr. Foley to be a credible witness, and have no reason to doubt his evidence. Moreover, we note that his evidence about his destination to the Panel was the same as his evidence at the time of the examination for discovery. We therefore accept that at the time of the accident, he was traveling to give an estimate on a job. At the time of the accident, he was therefore, in our opinion engaged primarily in a business or employment activity. This is not altered by the fact that he was going home after the business call. Mr. Foley was in the course of his employment at the time of the accident. With respect to Ms. Bondy, the situation is not quite so clear. The thing which gives her status at the time of the accident an employment related flavour, or suggests that the accident was reasonably incidental to her employment, is the fact that she was bringing with her employment related videos with the intention of watching them. Were it not for this, the conclusion, in our view, would clearly be that Ms. Bondy was simply traveling home at the time of the accident, and as such, would not be considered to be in the course of her employment. Does the fact that Ms. Bondy was bringing employment related materials home with her represent a significant employment-related factor such as to place her in the course of employment at the time of the accident? Firstly, the Panel is satisfied that Ms. Bondy's home was distinct from the dance studio business. We note that she did not claim her residence as a business expense, and we accept her evidence that her home was not a regular "place of business" for her. It is not unusual for people to "bring work home", and in our view, such activity does not, in and of itself, make the home a "place of business". This is not to suggest that any accident which happens at home is necessarily unrelated to employment. We simply note that at the time of the accident, the worker was traveling home, rather than to a "place of business".

11 8 Secondly, the Panel notes that, in contrast for example, with Mr. Foley's profession, it was not necessary for Ms. Bondy to use her vehicle to transport the employment related materials in question. While Mr. Foley requires a truck to carry the tools of his trade, it is obviously not necessary to use a vehicle to transport video tapes. Thirdly, we note that there is no evidence that Ms. Bondy was planning to view the videos immediately upon arriving at her house. She might have watched them a few hours later, or even, according to her evidence, a few days of weeks later. If it were accepted that Ms. Bondy was in the course of her employment at the time of the accident simply because she was planning to watch videos, it would seem to follow that she would remain in the course of her employment until she watched them, even if this took some weeks. In characterizing what Ms. Bondy was doing, it seems to us that she was essentially on her way home from her place of work. There is nothing, in our view, in the evidence which would cause us to find that there was an employment-related element of any significance in the circumstances of the accident. The Panel is satisfied, after considering all of the evidence, that Ms. Bondy was not in the course of her employment at the time of the accident. THE DECISION The application is dismissed. The Panel finds that Mr. Foley was a worker in the course of his employment at the time of the accident. However, Ms. Bondy was not a worker in the course of her employment at the time of the accident. Accordingly, Ms. Bondy's right of action is not taken away by Part 1 of the Workers' Compensation Act. DATED at Toronto, this 13th day of March, SIGNED: B. Cook, K.W. Preston, R.J. Lebert.