WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 765/09

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1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 765/09 BEFORE: B. Doherty: Vice-Chair HEARING: April 16, 2009, August 20, 2009 and November 3, 2009, at Toronto Oral hearings DATE OF DECISION: November 24, 2009 NEUTRAL CITATION: 2009 ONWSIAT 2745 APPLICATIONS UNDER SECTION 31 OF THE WSIA APPEARANCES: For the Applicant Markel Insurance Company: J. Pollack and A. Lennox, Counsel For the Co-applicant A-Team Haulage Ltd.: For the Respondent Sukhdev Singh: Interpreters: B. Haynes and B. Sunohara, Counsel S. Grillone and G. Bekiaris, Counsel K. Jammu, M. Shafiq and A. Tahir, Punjabi 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 REASONS (i) Introduction Decision No. 765/09 [1] These are the reasons for decision in an application by Markel Insurance Company (Markel) and a co-application by A-Team Haulage Ltd. (A-Team) under section 31 of the Workplace Safety and Insurance Act, 1997 (WSIA) seeking a determination that the respondent Sukhdev Singh (Mr. Singh) has no right to statutory accident benefits (SABs) and no right to commence an action against A-Team. [2] Mr. Singh was the driver of a dump truck. He had at one time owned the dump truck but had sold it to A-Team in early He claims statutory accident benefits from Markel and damages from A-Team for injuries sustained on July 5, 2006 when the tarp cover on the dump truck is alleged to have malfunctioned, striking him and causing him to fall. [3] Markel and A-Team contend that Mr. Singh was a worker of a Schedule 1 employer, A- Team, in the course of his employment at the time of his accident, and entitled to claim benefits under the WSIA. [4] Mr. Singh did not claim benefits under the WSIA. He made a claim to Markel, the insurer of the dump truck, for SABs in January, Markel s adjuster obtained written statements from Mr. Singh and Mr. Barry Bharat, the owner of A-Team. The statements contain, among other things, information regarding the relationship between Mr. Singh and A- Team, that is, whether he was a worker or an independent operator. [5] Markel brought its section 31 application in March, [6] In May 2008, Mr. Singh and his wife (as a claimant under the Family Law Act) brought an action against A-Team and Markel, Court File No. CV in the Ontario Superior Court of Justice at Brampton. The claims in that action are against A-Team for damages for negligence and against Markel for SABs. (ii) Written evidence (a) Records from the Workplace Safety and Insurance Board (WSIB) regarding a status determination in the context of Mr. Singh driving for another company [7] The WSIB provided the Tribunal with copies of records that indicate that, in the context of possibly driving for another company, Mr. Singh provided information to the WSIB regarding his status (worker versus independent operator) and, based on that information, the WSIB determined that he was an independent operator. [8] Mr. Singh had completed the WSIB trucking industry questionnaire. The questionnaire states that the form is to be completed by owner-operators (and the principals who hire them) and that the responses will indicate whether, in the WSIB s view, the owner-operator is an independent operator or a worker under workers compensation legislation. Mr. Singh completed the questionnaire on March 7, He described the owner-operator as his company, Ontario Inc. (the numbered company). The principal s name was described as United Independent. United Independent had a WSIB account number. [9] Mr. Singh provided the WSIB with the ownership permits relating to the truck. The plate portion of the permit was in the name of the numbered company. The vehicle portion was in the name of a finance company. Mr. Singh also provided the WSIB with a copy of the lease between the finance company as lessor and the two lessees, Mr. Singh and another individual.

3 Page: 2 Decision No. 765/09 [10] Based on the information and documentation provided to it by Mr. Singh, the WSIB advised United Independent of its status determination in a letter dated March 9, 2005: the WSIB considered Mr. Singh to be an independent operator under the WSIA. A copy of that letter was provided to Mr. Singh. [11] At the hearing, Mr. Singh testified as to the circumstances surrounding this status determination in March, He stated that A-Team did not have enough work for him at the time, and so he applied for work with United Independent. United Independent told Mr. Singh that if he wanted to work with them, he would need to get something from the WSIB, presumably the status determination. Mr. Singh testified that he did not in fact end up doing any driving for United Independent. [12] He testified that he did not seek a status determination from the WSIB in the context of his driving for A-Team. He said that he was not sure why he did not, that it was probably because he was never asked to. (b) Statement of Mr. Singh to Markel [13] A statement was obtained by Markel s adjuster in connection with his application for SABs. A copy of the typed statement dated January 17, 2007 is contained in the section 31 statement of Markel. The statement is in English. It was given in the presence of Mr. Singh s counsel. Each page was initialled by Mr. Singh. [14] The facts relevant to the issue in the application and co-application in the statement are the following: Mr. Singh understood English; he considered himself an employee of A-Team; he was paid $19.00 per hour; A-Team paid him every two weeks with a cheque made payable to his numbered company; he was the sole owner of the numbered company and the numbered company did not have any employees; he was in the course of his employment, operating a dump truck owned by A-Team, at the time of his accident; A-Team paid all the expenses associated with operating its truck; there was no written agreement between Mr. Singh and A-Team; A-Team s logo was on the dump truck; Mr. Singh could not refuse to take a load; he could not use A-Team s truck to haul goods for others; Mr. Singh did not market for new clients; he followed the instructions of the A-Team dispatcher; he reported to Barry, the owner of A-Team; Mr. Singh did not work anywhere else in the year before his accident; and

4 Page: 3 Decision No. 765/09 he operated under A-Team s CVOR. 1 (c) Mr. Singh s application for SABS [15] In his application for SABs dated January 18, 2007, Mr. Singh stated, among other things, that the language he spoke was English, that he was represented by counsel, and that his status at the time of the accident was Employed and working, rather than self-employed. (d) First statement of Barry Bharat to Markel [16] There were two statements of Barry Bharat submitted to support the application and coapplication. [17] The first was given to Markel s adjuster and is dated February 20, The facts relevant to the matter in issue contained in that statement are the following: Mr. Barry Bharat was the owner of A-Team; after Mr. Singh s accident, Mr. Bharat got another driver for the truck; and A-Team did not have WSIB coverage because all of our drivers including Sukhdev Singh are considered brokers. [18] The statement went on to say that A-Team had no account with the WSIB. In fact, a status check provided by the WSIB to the Tribunal states that A-Team was an active Schedule 1 employer with a coverage start date of January 12, (e) Second statement of Barry Bharat [19] An Addendum to Barry Bharat s original statement was provided to the Tribunal in April, 2009 by counsel for A-Team. The document dated May 29, 2008 states, among other things, that Mr. Singh was an employee of A-Team. (iii) Testimony (a) Sukhdev Singh [20] Mr. Singh gave his testimony through a Punjabi interpreter. [21] He confirmed much of the information contained in the original statements: he was working at the time of the accident; A-Team owned the dump truck; A-Team paid him an hourly rate; the truck-related expenses were paid by A-Team; and the dump truck carried the A-Team logo. [22] He confirmed that he had no written agreement with A-Team. [23] He acknowledged that A-Team s dispatcher told him where and when to deliver loads. He agreed that he could not do work for others using A-Team s trucks. [24] When it was suggested to him that he reported to Barry Bharat, Mr. Singh stated that he was his own boss, that Mr. Bharat was a contractor who got work for him. 1 A CVOR certificate is a Commercial Vehicle Operator s Registration Certificate under the Highway Traffic Act. That Act provides that no person shall operator a commercial motor vehicle on a highway unless the operator is the holder of a valid CVOR certificate.

5 Page: 4 Decision No. 765/09 [25] Mr. Singh testified that he could have refused to take a load. When the reference in his statement to Markel was put to him, that he could not refuse to take a load, his explanation was that he did not have an interpreter at the time the statement was taken. It was pointed out to him that his application for SABs stated that his language was English and that his statement to Markel said that he understood English. Mr. Singh maintained that he did not understand what he had signed. [26] Mr. Singh agreed that the bills of lading were in the name of A-Team, and not his numbered company, and that he operated under A-Team s CVOR. [27] He acknowledged that the time that A-Team paid for included his lunch and breaks. [28] He stated that he was the only executive officer of the numbered company, the address of which was his home address. The numbered company had no assets. He did no marketing; he had no business cards and the numbered company was not listed in, for example, the phone book. [29] In examination by his own counsel, it was established that: A-Team made no source deductions; Mr. Singh did not wear a uniform; A-Team did not provide him with a Record of Employment after he was no longer driving for the company; he was not paid if he was sick; if it was raining, he did not work and was not paid; after the transfer of ownership of the truck to A- Team, there was no change in the services that the numbered company provided to A-Team; the numbered company provided Mr. Singh with remuneration; he received no letter of termination or severance package from A-Team; and that although he understands and can read some English, he cannot read complex legal issues. [30] In my view, Mr. Singh s abilities with English were greater than he displayed at the hearing. As noted earlier, his statement to Markel included an acknowledgement that he was able to understand English. When he suggested at the hearing that his English abilities were limited, a copy of the hospital record of the hospital that he attended after the accident was put to him. It states, among other things, that his language was English. Mr. Singh stated that he was unconscious at the time he arrived at hospital. The hospital record appears to show a Glasgow Coma Scale of 14/15, which is inconsistent with a lack of consciousness. [31] Based on the information given by Mr. Singh in his statement to Markel and his application for SABs (information given in the presence of counsel) and the information in the hospital record, I do not accept his testimony at the hearing that some of the information contained in those records is not true, and that is attributable to language difficulties. I find it is more likely that he did not appreciate the legal consequences of the information he was providing in terms of his right to pursue his claims against Markel and A-Team, and when he did, he resiled from the information he had provided that was damaging to those claims. (b) Randy Bharat [32] Randy Bharat testified as a replacement witness for his father, Barry Bharat. [33] Randy Bharat is a vice-president of A-Team and has been with the company for five years. His duties include dispatch, accounts receivable, and everything but legals. The duties include dealing with drivers, and Randy Bharat was familiar with Mr. Singh. [34] Randy Bharat testified that the dispatcher would provide instructions to Mr. Singh, and that those communications were in English. He stated, however, that he sometimes took it slow in communicating with Mr. Singh.

6 Page: 5 Decision No. 765/09 [35] Randy Bharat confirmed that A-Team owned the dump truck at the time of the accident; that it held the CVOR relating to the truck; that Mr. Singh could not use the truck to haul for others; that it was his understanding that Mr. Singh was taking a load for A-Team at the time of his accident; that Mr. Singh was paid on an hourly basis; that there was no written contract with Mr. Singh or his numbered company; and that Mr. Singh was not required to develop business for A-Team. [36] He stated that A-Team acquired ownership of Mr. Singh s dump truck in early 2006 because Mr. Singh was unable to make the payments on it, and the dump truck was in danger of being repossessed. He testified that Mr. Singh owed A-Team and his father a lot of money. [37] He confirmed that A-Team registered with the WSIB as of January 12, [38] Randy Bharat testified that Mr. Singh was not allowed to subcontract, and that if he wanted to take a vacation, A-Team would have to approve a substitute driver. [39] He testified that Mr. Singh did as he was told, that he followed A-Team s instructions while he was at work. [40] Randy Bharat was asked by counsel for Mr. Singh about his father s reference to Mr. Singh having been a broker, and Randy Bharat stated that a broker was someone who owned his own truck. (iv) The failure of Mr. Barry Bharat to testify [41] It was the position of counsel for Mr. Singh that there were inconsistencies between Mr. Barry Bharat s first statement (to Markel on February 20, 2007) and his Addendum statement dated May 29, 2008, the principal one being that Mr. Singh was described as a broker in the first statement and an employee in the second statement. [42] The hearing began on April 16, Mr. Barry Bharat was to have been a witness, but did not attend on the ground that he had recently had back surgery. Instead, his son, Mr. Randy Bharat, testified. [43] When the hearing adjourned on April 16, 2009, I advised counsel that I would consider whether we should hear Mr. Barry Bharat s testimony. I concluded that we should. [44] Mr. Bharat was served with a summons to attend the hearing which resumed on August 20, He did not attend. He advised Tribunal staff shortly before the hearing was to commence that he had had neck and head surgery one month earlier and he had a very bad headache. [45] No medical documentation was provided on either occasion to support Mr. Bharat s claim that he was unable to attend the hearing. [46] The hearing on August 20, 2009 was adjourned. Following the adjournment, I issued an interim decision directing that a new summons and a copy of the interim decision be served on Mr. Barry Bharat by the Tribunal, and if he did not attend on the new hearing date, I would hear submissions as to what steps to take regarding his non-attendance. [47] The Tribunal made a number of attempts to serve Mr. Barry Bharat with the interim decision and the new summons, and was unsuccessful. [48] This was discussed at the outset of the resumption of the hearing on November 3, 2009, and all counsel agreed that the hearing should proceed.

7 Page: 6 Decision No. 765/09 [49] Counsel for Markel offered an explanation for the apparent inconsistency in the statements of Mr. Barry Bharat. It was his suggestion that there was no inconsistency between the statements, that the change in terminology reflected a change in status after A-Team acquired ownership of the dump truck. The submission was that when Mr. Singh had owned the truck, he was a broker, but after A-Team purchased his truck and Mr. Singh continued to drive, he was an employee. [50] Counsel for Mr. Singh submitted that that was speculative. I agree that it is speculative. There is an inconsistency in initially describing Mr. Singh as a broker and later describing him as an employee. Given Mr. Barry Bharat s failure to testify and explain the reason for the change, I am not prepared to accept that it was for the reason suggested by counsel for Markel. (v) Analysis (a) Statutory Accident Benefits Schedule and the WSIA [51] 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). [52] 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 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). (2) If a worker s right of action is taken away under section 28 or 29, the worker s spouse, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act. 1997, c. 16, Sched. A, s. 27 (2); 1999, c. 6, s. 67 (7); 2005, c. 5, s. 73 (7). Certain rights of action extinguished 28. (1) A worker employed by a Schedule 1 employer, the worker s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer....

8 Page: 7 Decision No. 765/09 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, (a) whether, because of this Act, the right to commence an action is taken away; (b) whether the amount that a person may be liable to pay in an action is limited by this Act; or (c) whether the plaintiff is entitled to claim benefits under the insurance plan. [53] To succeed in the application and co-application, Markel and A-Team must establish that in the circumstances in which Mr. Singh was injured: 1) he was a worker of a Schedule 1 employer and not an independent operator; 2) he was in the course of his employment; and 3) A-Team was a Schedule 1 employer. [54] Numbers 2 and 3 are not in issue. Mr. Singh acknowledged that he was working at the time of his accident. A-Team is a Schedule 1 employer under Ont. Reg. 175/98, Class E, Section 3(i), Carting, teaming and trucking. [55] The issue in this case is whether Mr. Singh was a worker or an independent operator. (b) Case law and Board Policy [56] The Supreme Court of Canada 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 Ontario Ltd. v. Sagaz Industries Canada Inc. 2 The court stated the following in paragraphs 47 and 48 of that decision: 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.) [57] There have been many Tribunal decisions that have determined whether an owneroperator of a truck was a worker or an independent operator. [58] Decision No. 921/89 and Decision No. 438/91 refer to the business reality test relied on in making that determination. Decision No. 438/91 discusses the business reality test as follows: In attempting to cover the spectrum of service relationships, panels require a flexible and highly adaptable test which can cut through the apparent form of the service 2 [2001] 2 S.C.R. 982.

9 Page: 8 Decision No. 765/09 relationship and reach the heart or substance of that relationship. In our view, the substance of the relationship must prevail over the form. The business reality test examines a variety of factors, none of which is, by itself, determinative of the issue. An examination of the factors will provide a Hearing Panel with a sense of the prevailing character or substance of the relationship - i.e. the business reality. The appropriate question is "what is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship?" [59] The Hearing Panel in that case provided a list of factors that may be considered in determining the nature of the relationship: ownership of equipment used in the work or business a significant capital investment in tools, equipment or other property is an indication of independent operator status; the form of compensation whether fixed rate or variable remuneration, the prospect of profit or risk of loss; business indicia referring to the business structure used (for example, incorporation or sole proprietorship) and the use of, among other things, advertising, business cards, business directory listings; evidence of control as to where and when the work is performed whether there is a right to direct the work activity in any significant fashion; the intention of the parties, often evidenced by an agreement (noting that the intention of the parties is not necessarily determinative of the issue); business or government records that reflect upon the status of the parties for example, tax returns, WSIB premiums; the ability to substitute another individual to provide the service; the supply of similar services to an employer by persons classified as workers under the WSIA if the working conditions and duties of the individual are similar to those of existing workers, then it is more likely that the individual will be considered a worker; the economic or business market the extent to which the individual provides services to a number of persons or only one person; the size of the consideration or payments; the use of the employer s support services such as clerical staff; and the degree of integration of the services provided into the business of the principal/employer. [60] The Hearing Panel in that case went on to say that this list of factors is not exhaustive and that normally one factor is not determinative of the issue. [61] Although no one factor is determinative of the characterization of the relationship, a number of Tribunal decisions have referred to some factors as being of considerable significance. [62] In Decision No. 940/05, the Vice-Chair stated the following at paragraph 45:... In those cases where the evidence has established a substantial capital investment and a clear intention to have an independent arrangement, Tribunal panels have found that an employment contract has not been created.

10 Page: 9 Decision No. 765/09 [63] In Decision No. 372/00, the Vice-Chair stated that the exclusive relationship between the driver and the transportation company was significant: [25]... Most significantly, a key element of the relationship between the Respondent and Gagan Express was that it was exclusive. Because Gagan Express held the plates, insurance and CVOR, it was virtually impossible for the Respondent to drive his truck for anyone else. The truck was identified as a Gagan Express truck by name. [64] The existence of an agreement between the parties that characterizes their relationship in a particular way is not determinative of the true nature of that relationship. There have been a number of Tribunal decisions where the relationship has been found to have been one of worker/employer rather than independent operator/principal in spite of the fact that there was a written agreement between the parties characterizing the individual as a contractor (see, for example, Decision No. 108/01, Decision No. 105/93, and Decision No. 51/03). The Vice-Chair or Hearing Panel considered the true nature of the relationship, regardless of the label the parties applied to it. [65] Section 126 of the WSIA, which directs the Tribunal to apply WSIB policy in an appeal, does not extend to applications. Nonetheless, WSIB policy provides guidance in considering issues of worker/independent operator status. The Vice-Chair in Decision No. 755/02 said the following at paragraph 38 of that decision: the Tribunal is not bound by Board policy in a right to sue application of first instance. It does not necessarily follow, however, that Board policy should not be weighed heavily in arriving at a decision in a right to sue application. [66] The definitions of worker and independent operator in the WSIA are fleshed out to some extent in WSIB policy in Operational Policy Manual (OPM) Document No , Workers and Independent Operators (03-Jan-2007). It states in part: A contract of service, or employer-employee relationship, is one where a worker agrees to work for an employer (payer), on a full- or part-time basis, in return for wages or a salary. The employer has the right to control what work is performed, where, when, and how the work is to be performed. Workers those who work under contracts of service are automatically insured and entitled to benefits if injured at work. In addition, their employers must pay premiums to the WSIB. A contract for service, or a business relationship, is one where a person agrees to perform specific work in return for payment. The employer does not necessarily control the manner in which the work is done, or the times and places the work is performed. Independent operators those who work under contracts for service are not automatically insured or entitled to benefits unless they voluntarily elect to be considered workers and apply to the WSIB for their own account and optional insurance.... Independent operators may not be insured through the hiring company s (payer s) WSIB account. [67] OPM Document No provides a list of the characteristics of workers and independent operators and other criteria to be considered in determining status. (c) Indicia of status [68] There are some indicia of independent operator status in this case: Mr. Singh had incorporated the numbered company to provide his driving services;

11 Page: 10 Decision No. 765/09 I find that Mr. Singh and Mr. Barry Bharat (A-Team) did not intend that the relationship be one of worker/employer. There were advantages to each of them in characterizing their relationship as independent operator/principal; and no deductions for items such as income tax were taken from the remuneration that A-Team paid to the numbered company. [69] Counsel for A-Team acknowledged that Mr. Singh s incorporation of the numbered company is a factor that tends to support independent operator status. He referred to two Tribunal decisions, Decision No. 1362/06, where the Vice-Chair pierced the corporate veil, and Decision No. 1443/06 where the Vice-Chair, in paragraph 43, stated that the focus of the analysis is on the substance of the relationship, rather than form. 3 [70] Although not addressed by counsel for Mr. Singh in his final submissions, the WSIB had, as discussed earlier, previously advised Mr. Singh that it had determined his status to be that of an independent operator. That does not, however, assist Mr. Singh to any significant degree. That determination was based on the situation at the time, significantly, that Mr. Singh owned the truck. The WSIB s determination cannot be relied on once the truck has been sold. [71] In my view, the few indicia of independent operator status in this case are outweighed by the indicia of worker status at the time of the accident: Mr. Singh drove a truck that was owned by A-Team; Counsel for Mr. Singh submitted that the change in ownership of the truck did not change the intention of the parties. That may be true, but the nature of the relationship changed instead of driving his own truck, in which he had made a sizeable capital investment, Mr. Singh was driving someone else s truck; Mr. Singh was paid an hourly rate, with little in the way of opportunity for profit or risk of loss; A-Team paid all the expenses of operating the truck; Mr. Singh did virtually all of his driving for A-Team; he drove under A-Team s CVOR; although Mr. Singh had incorporated the numbered company, it had no assets and no business activities once the truck was sold; A-Team, through its dispatcher, provided instructions to Mr. Singh about the work he was doing; and the truck that he drove bore the A-Team logo; 3 [43] However, I find it unnecessary to resort to the lifting the corporate veil analysis. The issue in this application is not whether the corporation was valid, but rather, whether Mr. Rai was in fact a worker or an independent operator. In evaluating the issue, the Tribunal considers a number of factors, including formal business arrangements. However, the analysis focuses on the substance of the relationship, rather than form. The fact that Mr. Rai incorporated a limited liability company is one factor to weigh against the other facts of the case. Some of the formal aspects of the relationship could be construed as indicating that Mr. Rai was an independent operator, such as the incorporation of a limited liability company, opening a corporate bank account and the fact that L&W did not take statutory deductions from his pay. However, the substantive aspects of Mr. Rai s relationship with L&W Trucking, enumerated above, clearly lead to a conclusion that he was a worker.

12 Page: 11 Decision No. 765/09 [72] Regardless of what their relationship may have been at its outset, I find that, at the time of the accident, the relationship between Mr. Singh and A-Team was one of worker and employer rather than independent operator and principal. (vi) Conclusions [73] Because I have determined that Mr. Singh was a worker for A-Team, a Schedule 1 employer under the WSIA, in the course of his employment at the time of his accident, I find that Markel is not required to pay SABs and that Mr. Singh and his spouse, Rupinder Kaur, are not entitled to maintain an action against A-Team.

13 Page: 12 Decision No. 765/09 DISPOSITION [74] The application and co-application are allowed: 1) The respondent Sukhdev Singh is entitled to claim benefits under the insurance plan set out in the Workplace Safety and Insurance Act, 1997; 2) The right of the respondent Sukhdev Singh to receive statutory accident benefits from Markel Insurance Company has been taken away by the combined operation of subsection 59(1) of the Statutory Accident Benefits Schedule Accidents on or After November 1, 1996 and section 28 of the WSIA; and 3) The right of the respondents Sukhdev Singh and Rupinder Kaur to commence an action against A-Team Haulage Ltd. is taken away pursuant to sections 27 and 28 of the WSIA. DATED: November 24, 2009 SIGNED: B. Doherty