WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1034/15

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1034/15 BEFORE: B. Kalvin: Vice-Chair HEARING: May 22, 2015, and January 12, 13, 2016 at London Oral Post-hearing activity completed on February 5, 2016 DATE OF DECISION: February 17, 2016 NEUTRAL CITATION: 2016 ONWSIAT 400 APPLICATION FOR ORDER UNDER SECTION 31 OF THE WORKPLACE SAFETY AND INSURANCE ACT, 1997 APPEARANCES: For the applicant: For the co-applicant: For the co-applicant: For the co-applicant: For the respondent: For the respondent: T. S. Fisher, Lawyer C. Klinowski, Lawyer K. Bunt, Lawyer W. Pollard, Lawyer M. Piekosz, Lawyer L. Grimaldi, Lawyer Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

2 Decision No. 1034/15 REASONS (i) Introduction [1] These are the reasons for the decision of the Workplace Safety and Insurance Appeals Tribunal with respect to four applications under section 31 of the Workplace Safety and Insurance Act (the WSIA ). The applications are brought by various defendants in two separate civil actions arising out of the incident. The applicants seek a determination that the plaintiffs (and respondents to these applications) right to sue is taken away by the WSIA. (ii) Background [2] Mr. Hughes was a chicken-catcher. On October 22, 2009, Mr. Hughes was part of a crew that was catching chickens on a farm owned by Four Corners Poultry Ltd. ( Four Corners ). The chicken-catching crew had been sent to the farm by KD Farm Services. KD Farm Services was in the business of sending crews to various poultry farms to catch birds, put them in cages and assist in loading the cages onto transport trucks in order to get the birds to poultry-processing plants. On this occasion, the transport truck, along with the cages into which the birds were placed, was supplied by a business called Moore s Produce Limited ( Moore s Produce ). The truck was driven to the Four Corners farm by Mr. Cressman ( Cressman ). In addition to driving the truck, it was Cressman s job to assist with loading the chickens onto the truck. [3] KD Farm Services and Moore s Produce were businesses that were controlled by the same person, namely, Mr. Chamberlain ( Chamberlain ). KD Farm Services and Moore s Produce had entered into a contract with Maple Leaf Foods Inc. ( Maple Leaf ) to catch and transport the chickens from the farm to Maple Leaf s premises. [4] The KD Farm services crew would catch chickens in a barn, and then pass the chickens to Cressman who was on the truck. Cressman was assisted on the truck by one of the chicken catchers. The two persons working on the truck would load the truck with the caged birds. The truck was an 18-wheel transport-trailer approximately 50 feet in length. In order to get the truck loaded, part of the trailer would be lined up with the barn door. After a section of the trailer was loaded, the trailer would be moved forward slightly so that a different section of the trailer was aligned with the barn door. In order to fully load the trailer, the truck had to be moved forward approximately six or seven times. [5] On this occasion, the truck was moved forward each time by Mr. Plumb ( Plumb ). Plumb was not the truck driver, but rather, was the supervisor of the KD Farm Services chickencatching crew. He was working in the barn with the chicken catchers, but periodically climbed into the cab of the truck to move it forward. During one of the moves, Mr. Hughes was crushed under the wheels of the truck and killed. It is not clear why Hughes had gone under the truck, but he may have been attempting to retrieve a stray bird. [6] As a result of this fatal accident, Hughes spouse and son (the Joyes ) initiated a civil action against KD Farm Services, Moore s Produce, Plumb, Four Corners and Maple Leaf. A second action was launched against the same defendants by Mr. Hughes mother and sister, M. Hughes and I. Hughes (the Hughes ).

3 Page: 2 Decision No. 1034/15 [7] In response to the civil actions filed against them, KD Farms Services, Moore s Produce, Plumb, Four Corners and Maple Leaf brought applications to this Tribunal under section 31 of the WSIA. KD Farm Services, Moore s Produce, Four Corners and Maple Leaf claim that at the time of the accident they were Schedule 1 employers under the WSIA. Plumb claims that when the accident occurred he was a worker of a Schedule 1 employer who was in the course of his employment. All the applicants claim that Mr. Hughes was a worker of a Schedule 1 employer who was in the course of his employment when the accident occurred. Accordingly, the applicants claim that Mr. Hughes s right to sue them is extinguished by the WSIA and consequently the right of his spouse and child to sue is extinguished as well. In addition, the applicants claim that since Mr. Hughes s mother and sister were his dependents, their right to sue is also extinguished. [8] The respondents do not deny that the KD Farm Services, Moore s Produce, Four Corners and Maple Leaf were Schedule 1 employers at the time of the accident. However, the respondents deny that Hughes and Plumb were workers as defined by the WSIA. They claim that Hughes and Plumb were independent operators. In addition, the respondents claim that Plumb was not in the course of his employment when the accident occurred. Further, Mr. Hughes s mother and sister claim they were not Mr. Hughes s dependants and therefore their right to sue is not extinguished. Finally, the respondents claim that Moore s Produce is excluded from the protection against civil suit that is provided to certain defendants under the WSIA, by virtue of subsection 28(4) of that statute. (iii) Issues [9] As noted, the applicants responded to the civil actions against them by bringing applications to this Tribunal under section 31 of the WSIA. That provision reads as follows: 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. (2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1). [10] The applicants claim that the respondents right to sue is taken away by sections 27 and 28 of the WSIA. Sections 27 and 28 prohibit an injured worker who is entitled to benefits under the WSIA from suing, among other persons, a Schedule 1 employer and another Schedule 1 worker who was in the course of employment. These provisions read as follows: 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. (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.

4 Page: 3 Decision No. 1034/15 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. (3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment. [11] Subsection 13(1) of the WSIA entitles a worker to benefits for an injury if that injury results from an accident arising out of and in the course of employment. Subsections 13(1) and (2) read as follows: 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. (2) If the accident arises out of the worker s employment, it is presumed to have occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker s employment, it is presumed to have arisen out of the employment unless the contrary is shown. [12] In the present case, there is no issue that on the day of the accident KD Farm Services, Moore s Produce, Four Corners and Maple Leaf were Schedule 1 employers. Accordingly, if Mr. Hughes was a worker in the course of his employment at the time of the accident, he, or more precisely his estate, is entitled to benefits under the WSIA, and therefore his right to sue the Schedule 1 employers is extinguished under subsection 28(1). Further, if Plumb was a worker in the course of his employment, Mr. Hughes s right to sue him is extinguished by virtue of subsections 28(1) and (3). If Mr. Hughes s right to sue these defendants is taken away then subsection 27(2) extinguishes the right to sue of his spouse and child, and dependants. Accordingly, the specific questions on which these applications turn are as follows: 1. At the time of the accident was Mr. Hughes a worker? 2. If so, was he in the course of his employment? 3. At the time of the accident was Mr. Plumb a worker? 4. If so, was he in the course of his employment? 5. Is Moore s Produce denied the protection provided to certain defendants under the WSIA by virtue of subsection 28(4) of that statute? 6. At the time of the accident were Mr. Hughes s mother and sister his dependants? (iv) The Law on worker versus independent operator A. The WSIA [13] A worker is defined in the WSIA as follows:

5 Page: 4 Decision No. 1034/15 worker means a person who has entered into or is employed under a contract of service or apprenticeship The definition goes on to set out a non-exhaustive list of workers. [14] An independent operator is defined as follows: independent operator means a person who carries on an industry included in Schedule 1 or Schedule 2 and who does not employ any workers for that purpose. B. Jurisprudence [15] In Ontario Ltd. v. Sagaz Industries Canada Inc., 1 the Supreme Court of Canada considered the question of whether a person was an employee or an independent contractor. The court stated that there is no single, universal test to determine whether a person is an employee or an independent contractor. Major J. stated the following: Although there is no universal test to determine whether a person is an employee or an independent contractor, I agree with MacGuigan J.A. that a persuasive approach to the issue is that taken by Cooke J. in Market Investigations, supra. 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. [16] This Tribunal has, on numerous occasions, considered the question of whether persons operating a truck on behalf of another company are independent operators or workers. A number of tests have been used to examine the issue, most commonly the business reality test. In Decision No. 785/91, the Panel stated the following: The best a panel can do in these situations is weigh the various indicia and form an impression as to the prevailing character of the relationship. WCAT Decision No. 921/89 (1990), 14 W.C.A.T.R. 207, traced the evolution of tests developed by the Tribunal to deal with these situations. It is not necessary to trace the evolution outlined in that decision. The decision went on to characterize the test which has evolved at the Appeals Tribunal as, in essence, a "hybrid test" or "business reality test". [17] In Decision No. 921/89, the Panel stated: The actual name applied to the test, whether "integration" test, "organization" test, "hybrid" test or "business reality" test is not important. What is important is that parties have an idea of the factors to be considered by the Appeals Tribunal in determining status as a "worker" or "independent operator". By referring to these factors, parties may themselves develop a sense of the character or reality of the business relationship and thus make a realistic assessment of the situation. It is the opinion of this panel that the factors enumerated in this decision in this goal to a greater extent than merely asking whether the work is "integral" to the overall business operation. The question to be asked SCC 59 at paras

6 Page: 5 Decision No. 1034/15 is what is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship? The resulting analysis, based on business reality, should lead to a decision in accordance with the real merits and justice of the case. [18] The criteria commonly considered under the business reality test are as follows: (v) whether the individual is in a business sufficiently independent that he or she bears the costs and risks of compensation; ownership of equipment; evidence of control; method of payment; business indicia; the degree of integration; furnishing of equipment; chance of profit or loss; the parties intentions; business or government records which reflect on the status of the parties; whether the individual must supply the services personally or can substitute other persons; the economic or business market; the influence of legislative and licensing requirements; whether the person structures his or her affairs for various purposes as if he or she is an independent operator. Analysis (a) Was Mr. Hughes a worker? [19] Having considered the evidence and submissions put forward by the parties, I find that Mr. Hughes was a worker employed by KD Farm Services and not an independent operator. [20] The evidence reveals that Mr. Hughes had been hired a few months before the accident by KD Farm Services to work as part of a chicken-catching crew. He was told by his crew supervisor when he was scheduled to work. He would be picked up for work in a van owned by KD Farm Services and taken to the farm where the work was to be done. The van was driven by one of the crew. Mr. Hughes required no special qualification to do the work, other than the physical fortitude for the job. He did not use any of his own tools or equipment, except for his work boots. The cages into which the birds were placed, the tarps used on the truck, and the nets and vaccination guns that were occasionally used were all supplied by either KD Farm Services or Moore s Produce.

7 Page: 6 Decision No. 1034/15 [21] Mr. Hughes bore no risk of loss, nor did he have a chance of profit. He made no financial investment in the work that he did in order to generate income, and therefore was not exposed to any risk of financial loss. The chicken-catching crew was paid a lump sum which was divided among the group. The lump sum was determined either by the number of birds caught, or by the total weight of the birds. Thus, on each job they went to, the amount that the crew was paid was predetermined by one of those two determinants. It was possible for the crew to finish a job more quickly by working efficiently, but this would not result in any increased pay that each catcher would receive from the job. [22] Further, even if the catchers were able to increase their rate of pay by catching more birds, in my assessment, this does not constitute a chance of profit. The fact that a worker can increase his or her pay by working more hours, or driving more miles, or catching more chickens is not a chance of profit. In Decision No. 1584/08 the Vice-Chair stated: The Respondent s work for the Coopers entailed no chance of profit or risk of loss. The Respondent was paid $8 per hour by the Coopers during the entire course of the working relationship. The fact that a wage earner can increase his or her wages by working more hours is not a chance or profit. This has been commented on by this Tribunal on several occasions. For instance, in Decision No. 1648/02, the Vice-Chair stated the following: There was no chance of profit or risk of loss, as he either worked the hours for the rate quoted or did not. [23] And in Decision No. 112/91, the Panel noted that a taxi driver s ability to earn more income by driving more hours did not mean that the driver had a chance of increased profits because the increased income was not related to any entrepreneurial judgment. The Panel stated: In this case, either one of the business entities controlled by the owner provided everything that is necessary - including the majority of the business calls - for a qualified driver to perform his / her job. It is also apparent, on the evidence, that the mere activity of driving a taxi cab under the described circumstances does not require significant entrepreneurial initiatives that make each driver subject to what could be identified as financial losses or, conversely, increased profits, without diluting the essential significance of these business terms. In other words, the net intake of each driver is more a function of his / her hours of driving rather than the outcome of his / her entrepreneurial judgment in making ongoing decisions that affect the viability of a business venture. [24] There was evidence that Mr. Hughes could increase his rate of pay by working efficiently and reliably. The crew supervisor had discretion to indicate that a catcher had worked particularly well and the catcher would be paid an additional stipend as a result. Similarly, if a catcher reliably showed up for work, he or she would be paid a reliability bonus. The evidence reveals that these additional payments were relatively small. In my assessment, these payments constitute a bonus or additional wages for good work; they do constitute a chance of profit. To borrow the phrase used by the Panel in Decision No. 112/91, these additional earnings were not the result of any entrepreneurial judgement on Mr. Hughes s part. [25] The fact that Mr. Hughes was told by his supervisor when he would be working, was transported to the farms in a KD Farm Services van, would be rewarded for good and reliable work habits, and could be fired by his supervisor if he was not performing satisfactorily, is a clear indication that KD Farm Services exercised significant control over Mr. Hughes.

8 Page: 7 Decision No. 1034/15 [26] There is no evidence that Mr. Hughes ever provided a substitute worker whom he retained to work in his place, or that he was permitted by KD Farm Services to do so; rather, he had to provide his chicken-catching services himself. Further, the services he provided were intrinsically integrated with KD Farm Services essential business operation in that KD Farms could not carry out its commercial enterprise without the services provided by the chicken catchers. In other words, the work done by Mr. Hughes was 'integral' to the overall business operation of KD Farm Services. [27] There is no evidence of business indicia or that Mr. Hughes structured his affairs as if he were an independent operator. There is no evidence that Mr. Hughes rendered chickencatching services to any enterprise other than KD Farm Services. There is no evidence that Mr. Hughes generated income from any other source during the time that he worked for KD Farm Services. [28] There was evidence that some of the chicken catchers and crew supervisors had set up corporations and that KD Farm Services remunerated these persons by means of payment issued to those corporate entities. It was submitted that this evidence that KD Farm Services and these persons intendent to structure their relationship as one between independent businesses and therefore constitutes proof that these catchers and supervisors were independent operators rather than workers. This is discussed in more detail in relation to Plumb, who was one of these persons. I mention it here only because Mr. Hughes was not one of them. He had not set up a corporation and was paid directly by KD Farm Services for the work he did. There is no evidence, in my view, that either KD Farm Services or Mr. Hughes intended their relationship to be anything other than that of employer and employee. In this regard, I note that when Mr. Hughes was hired, a KD Farm Services New Employee Sheet was filled out. [29] After the accident occurred, KD Farm Services reported its occurrence to the Workplace Safety and Insurance Board (the Board ), as Schedule 1 employers are required by law to do, by filling out an Employer s Report of Injury/Disease. Moreover, I note that KD Farm Services included Mr. Hughes s earnings in its gross worker payroll which it reported to the Board. Thus, official records, in this case, the Board s records, reflect that Mr. Hughes was a worker. It is significant also, that after the accident occurred, the Board regarded Mr. Hughes as having been a worker in the course of his employment at the time of the accident and, and for this reason it was prepared to grant benefits, including grief counselling, to Mr. Hughes s spouse and child immediately after the accident. These benefits were not paid, because Mr. Hughes s spouse and child elected to initiate a civil action instead. [30] In short, the business reality of the situation is that Mr. Hughes was not operating a business. In my view, when measured against the legal criteria enumerated above, the evidence clearly and overwhelmingly reveals that Mr. Hughes was a worker and not an independent operator when the accident of October 22, 2009 occurred. (b) Was Mr. Hughes in the course of his employment? [31] Although the respondents did not concede that Mr. Hughes was in the course of his employment when the accident occurred, they offered no submissions to suggest that he was not. It seems trite to say that Mr. Hughes was engaged in his regular duties as a chicken catcher when the accident occurred. Although it is not clear why Mr. Hughes was near the wheels of the vehicle or under the vehicle, it has been suggested that he was likely trying to retrieve a stray chicken. Regardless, the accident occurred while Mr. Hughes was actively engaged in the job

9 Page: 8 Decision No. 1034/15 for which he was being paid, namely, to catch chickens and assist in loading them onto a truck. I find that he was in the course of his employment at the time of the accident. (c) Was Plumb a worker? [32] For the reasons which follow, I find that Plumb was a worker and not an independent operator when the accident giving rise to these applications occurred. Much of the same analysis pertaining to Mr. Hughes applies to Plumb. That is, like Mr. Hughes, Plumb was not involved in securing chicken-catching jobs, but rather was told by KD Farm Services when and where he would be working in the upcoming week. Like Mr. Hughes, Plumb was transported to the poultry farms in a van supplied by KD Farm Services and driven by one of the crew members. [33] Like Mr. Hughes, Plumb did not use any of his own tools or equipment to do the work, except for his work boots. As noted above, the equipment used to do the work was supplied either by KD Farm Services or Moore s Produce. The fax machine via which Plumb received the weekly assignments from the KD Farm Services office was provided by KD Farm Services. This was done by means of a fax that Plumb received at his home from KD Farm Services. The fax machine was given to Plumb by KD Farm Services. [34] Like Mr. Hughes, Plumb bore no risk of financial loss in relation to the work he did. He had no financial investment in a business that he was at risk of losing if things did not go well. He also had no meaningful chance of profit, in my view. Like Mr. Hughes, Plumb s pay was largely determined by the number or weight of birds caught and loaded. Like Mr. Hughes, Plumb was eligible to receive certain bonuses for efficient and reliable work. On top of that, Plumb received an additional supervisor s bonus of $3 for every 1000 birds caught. For the reasons set out above, these small bonuses, which were paid by KD Farm Services as an incentive for good work, and in recognition of Plumb s additional duties as a supervisor, do not constitute a chance of profit. These payments were not the result of an entrepreneurial initiative or judgment on Plumb s part. [35] Like Mr. Hughes, Plumb never supplied a replacement supervisor to do his work for him. In addition, while he was working for KD Farm Services, Plumb never provided chickencatching or supervisor s duties for any other poultry-catching business. He worked exclusively for KD Farm Services on a full-time basis. During busy times, he worked 50 to 60 hours a week, and during slower times he worked 15 to 20 hours a week. But at no time did he work for any other employer or enterprise. Plumb testified that he never considered working for anyone else after he began working with KD Farm Services. Moreover, the evidence reveals that Plumb would not have been permitted to work for another poultry-catching business while he was working with KD Farm Services. At the hearing of these applications, Chamberlain testified that it was not an option for Plumb to work for another farm services business and had he done so Chamberlain said I would have cut my ties with him. [36] Thus, the facts reveal that after Plumb began working with KD Farm Services in 2001, first as a chicken catcher and later as chicken-catcher supervisor, he did not work for anyone else. He worked for KD Farm Services on a full-time basis, although the number of hours worked per week varied. All the income that Plumb earned after he began working with KD Farm Services, and was earning at the time of the accident, came from one source, namely, KD Farm Services.

10 Page: 9 Decision No. 1034/15 [37] Like Mr. Hughes, the services provided by Plumb were an integral part of the business being run by KD Farm Services. Plumb worked as a chicken catcher and also as the supervisor of a crew of other chicken catchers. These were not services that KD Farms required on a temporary or incidental basis. Rather, they were services that were vital to its business operation without which the business enterprise could not have functioned as a going concern. [38] There was some evidence that KD Farm Services and some of its chicken catchers and supervisors structured their relationship so that the catchers and supervisors would be regarded as sub-contractors or independent operators. Some of the chicken catchers and supervisors set up corporations and were remunerated for the work done for KD Services by payments made to those corporations. Plumb was one of those who had set up a numbered company. He also opened a bank account in the name of the numbered company into which payments were made by KD Farm Services for the work done by Plumb. [39] Although the arrangement described above constitutes some evidence that the parties made an attempt to structure their affairs so that Plumb would be regarded as an independent operator, for the reasons that follow, I find it to be of little probative weight. Plumb began working with KD Farm Services in He had not set up a corporation at the time. He set up his corporation in 2006, when he became a supervisor, by filling out the necessary paper work and paying a $500 fee. At the hearing of these applications, Plumb testified that it was Chamberlain s idea that he, Plumb, set up a corporation and the he did not fully understand why Chamberlain wanted him to do so. There is no evidence that this corporation was engaged in business or commercial venture other than being a vehicle through which Plumb received his pay. The company had only one director, namely, Plumb. Further, the invoices which Plumb provided to KD Farm Services in order to secure payment, were not prepared by Plumb or his numbered company, but rather, were filled out by KD Farm Services, who then issued payment based on those invoices. At the hearing of these applications, Plumb testified that he rarely checked the accuracy of his invoices and the resulting payments from KD Farm Services. In addition, Plumb conceded in his testimony that he did not have all the information necessary to complete the invoices, since he did not have information pertaining to the total number or weight of the birds caught on a particular job. That information was in the possession of Moore s Produce and KD Farms, and accordingly, neither Plumb nor his company was in a position to properly invoice KD Farm Services for the work done by Plumb. [40] This Tribunal has, on numerous occasions, indicated that setting up a corporation at the request or direction of an employer, or to satisfy an industry standard for securing employment, is not persuasive evidence of independent operator status. This occurs commonly in the trucking industry, and although the cases cited below deal with truckers the comments made in these cases are germane to the present application. In Decision No. 694/12, I stated the following: What is clear, however, is that the only reason that Sidhu set up a corporation and opened a bank account for it was because he believed that prospective employers required this, and that he would not be able to secure employment as a truck driver unless he did so. There is no indication in the evidence, and Sidhu did not testify that he set up a corporation because he wanted to start a business. His corporation was simply a vehicle for him to receive payment. It was engaged in no enterprise or activity, and its only purpose was to be a vehicle for receipt of income that Sidhu earned from driving a truck. The Board s policy dealing with the distinction between workers and independent operators, cited above, states the following with respect to incorporation:

11 Page: 10 Decision No. 1034/15 Incorporation The WSIB does not automatically consider incorporation, on its own, as a sole factor in determining whether a person is an independent operator. One-person corporations still need to apply for independent operator status by completing the appropriate industry-specific or general questionnaire. The WSIB looks at whether the person operates a business or not, rather than just the incorporated structure of the operation. There are numerous Tribunal decisions which comment on the fact that incorporation of a company by truck driver for the purpose of securing employment from a commercial transport operation, pursuant to an industry standard, is not persuasive evidence that the driver is an independent operator. For instance, in Decision No. 1988/13, in concluding that a truck driver was a worker rather than an independent operator, the following comments were made: Similarly, the respondent testified that the only reason he incorporated a numbered company after he started working at O Connor s was because he was told to do so by O Connor s. The respondent testified that when he began working with O Connor s, in March 2011, he had no desire or intention to incorporate a numbered company. The only reason he did so was because he was instructed to do so by O Connor s What this evidence shows, in my view, is that the contract between O Connor s and R. Dhillon Trucking and the incorporation of a numbered company listing the respondent as the only director, were attempts, on the part of O Connor s, to set up some formal indicia of an independent business relationship with the respondent, when, in fact, the substance of the working relationship was overwhelmingly that of employer and worker. Again, it is significant that the respondent testified that prior to starting his work with O Connor s he had no intention or desire to set up a numbered company but did so only at the insistence of O Connor s. In the present case, Sidhu did not set up his company at the insistence of Tiger Freight. He set it up previously when he began working as a truck driver for a different employer. But the evidence reveals that he only set up the company because he was of the view, correctly, it appears, that he needed to do so in order to secure employment as a long distance truck driver. In Decision No. 1201/03, the Vice-Chair stated the following: While I acknowledge that KK had incorporated himself just prior to beginning with KW 2000, I am satisfied that this was nothing more than a pro forma document completed at the request of KW 2000 in, what would appear, was an attempt to avoid the establishment of a worker-employer relationship. In his testimony, the worker noted that, other than a few tax deductions, incorporation had little benefit for him and he would never have done so had it not been requested by KW In addition, AK testified that had the worker not incorporated, he would not have been able to work for KW While, in theory, KW 2000 may have retained the services of KK s numbered company, I am satisfied (as was the case in Decision Nos. 304 and 416/90) that the real merits and justice of the situation require that the corporate veil be pierced and that the facts behind the incorporation be examined to determine the true nature of the relationship between KK and KW As noted above, I am satisfied that when one examines the facts as a whole, they clearly establish that the relationship between the parties was one of worker and employer at the time of the accident on August 23, 2001.

12 Page: 11 Decision No. 1034/15 In Decision No. 1443/06, the Vice-Chair commented as follows: The Tribunal s decisions demonstrate that a driver s decision to establish a corporate entity is not determinative of the issue of whether the driver is a worker or independent operator. See, for example, Decision No. 805/03. Furthermore, the substance of the arrangements between the parties, rather than the form, is the deciding factor. For example, in Decision No. 2801/01, the Vice-Chair noted that the contract between the parties demonstrated their intention to create an independent operator relationship, but found that the driver was a worker in light of the substance of the relationship. In Decision No. 1211/03 (September 30, 2003), the Vice-Chair noted that the decision to opt out of statutory deductions at source is not determinative of independent operator status. In short, the fact that Sidhu incorporated a company and which he used as a vehicle to receive payments for income he earned from truck driving does little to convince me that he was an independent operator rather than a worker. [41] I agree with the reasoning set out in these cases and find that the fact that Plumb had set up a numbered company, at the suggestion of Chamberlain, through which he received payment, and which had been dissolved in April 2009, does little to advance the claim that Plumb was an independent operator rather than a worker when the accident of October 22, 2009, occurred. [42] In coming to the conclusion that Plumb was a worker rather than an independent operator, I rely on all the reasons set out above. However, of particular importance, in my view, is the fact that during his entire relationship with KD Farm Services, Plumb did not work for any other entity and was not allowed to do so. I find the comments of Robertson J.A. in Joey s Delivery Service v. New Brunswick (Workplace Health, Safety and Compensation Commission) to be particularly germane to this case: To hold that the drivers in those cases were carrying on business for themselves is to ignore the degree of control exercised by the company over its employees. Specifically, drivers worked full-time for one employer, on a continuing basis, and were not permitted to work for others. If you are working full-time in the business of another, it is painfully difficult to accept that you are carrying on your own business as an independent operator. 2 (d) Was Plumb in the course of his employment? [43] There is no question that Plumb was working when the accident occurred. Plumb was in the tractor and drove it forwards a short distance, unaware that Mr. Hughes was under the vehicle. As noted earlier, the reason that Plumb moved the vehicle forward was because after a section of the trailer was loaded, a different section of the trailer needed to be aligned with the barn door. [44] The respondents take the position that because of his improper conduct in moving the vehicle, Plumb removed himself from the course or scope of his employment. They rely on the fact that Cressman not Plumb was the driver of the vehicle who was supposed to move the truck. They note that Plumb did not have a licence to drive the truck. They refer to the fact that Plumb moved the vehicle in contravention of a KD Farm Services policy that members of the chickencatching crew were not to move the truck: this was to be done only by the official truck driver. They refer to the evidence that it was also a policy of Moore s Produce that no-one other than the Moore s Produce driver was to drive the truck. 2 [2001] C.C.S. No. 1596, at para. 51, N.B.C.A.

13 Page: 12 Decision No. 1034/15 [45] In his testimony at the hearing of this application, Chamberlain stated that it was a KD Farm Services policy that members of the chicken-catching crew were not to move a tractor trailer that was being loaded on a poultry farm. This was not a written policy, but was communicated verbally to the crew members. [46] Chamberlain and Mr. McCaughey ( McCaughey ), the general manager of Moore s Produce, testified that prior to the accident, Moore s Produce had a verbal policy that no-one other than a Moore s Produce driver was to drive a Moore s Produce vehicle. Cressman testified that he was unaware of this policy prior to the accident. On the day after the accident, that is, on October 23, 2009, Moore s Produce committed its policy to writing and distributed it to its employees. [47] Although it was contrary to KD Farm Services and Moore s Produce policy for chicken catchers to move the transport trailer, all the witnesses testified that it was a common practice in the industry for catchers to move the vehicle being loaded. The reason for this is that it made the job go more quickly because instead of waiting for the truck driver, who was on the vehicle loading cages, to disembark, by climbing down a ladder, and then walk to the front of the vehicle and climb into the cab, one of the catchers, who was already outside the vehicle, could more easily and quickly climb into the cab and move the vehicle forward a few feet. Thus, on the night in question, Plumb had moved the vehicle forward five or six times prior to the move which resulted in the fatal injury to Mr. Hughes. Chamberlain testified that this practice had been a longstanding one in the industry. Thus, he was displeased but not surprised to learn that one of the chicken-catching crew had moved the truck. McCaughey agreed with Chamberlain s testimony that the practice of catchers moving trucks was a common problem that had been going on in the industry for a long time. Plumb testified that he regularly moved the truck during a job, and estimated he did so about 50 percent of the time that a truck was moved during the course of loading. Cressman agreed that it was common practice for a chicken catcher to move the truck and stated that during his seven years of work as a truck driver, a catcher would move truck about 20 to 30 percent of the time. [48] Having considered the evidence and submissions, I find that Plumb was in the course of his employment when the accident of October 22, 2009 occurred. The purpose of the WSIA, and its predecessor statutes, is to establish a no-fault system of compensation for injured workers. Thus, workers are entitled to benefits for injuries resulting from a workplace accident regardless of whether they or anyone else was at fault in relation to the accident. And employers are shielded from civil suits by injured workers in relation to workplace accidents, regardless of whether the employer or one of its workers was at fault in the occurrence of an accident. Thus, the fact that a worker acted improperly, or breached a policy or rule, is generally not sufficient to regard the worker as having removed himself of herself from the scope of employment. If every infraction committed by a worker during the course of the job removed the worker from the scope of employment the basic purpose of the WSIA would be rendered nugatory. [49] There are instances in which a worker s conduct will be regarded as so egregious as to remove that worker from the scope of his or her employment. In Decision No. 2104/13, I noted that in order to take himself or herself beyond the scope of employment, a worker s improper conduct would have to be extremely egregious improper behaviour which generally involves the intentional infliction of harm. This decision states: There is no doubt that the respondent was not supposed to drive his car from the parking lot to the front of the building in which the punch-out clocks were located. At the hearing

14 Page: 13 Decision No. 1034/15 of this application, Mr. Markesic, the plant manager, testified that prior to the accident, although there was no written directive, workers had been told not to go to the parking lot and move their vehicles prior to punching out. After the accident of July 15, 2010, this policy was put in writing. The policy states that workers must punch out before they proceed to their vehicles. While there are instances in which a worker s improper behaviour can take the worker beyond the scope of his or her employment, these occur when there is extremely egregious improper behaviour. The fact that the worker acted improperly by going to his car and moving it prior to, rather than after he had punched out, does not come close to the kind of conduct that is so improper that it removes the worker from the scope of employment. Mr. Markesic testified that the worker was not disciplined for having engaged in an improper departure procedure on July 15, Mr. Markesic testified that while he believed the worker s conduct warranted a written warning, no such warning or other disciplinary measure was taken. Further, an Incident/Accident Investigation Report prepared by the employer on the day after the accident indicates that the accident did not involve any serious or willful misconduct. In Decision No. 234/87, a worker made an obscene comment to a co-worker. The co-worker came over to the worker and picked up a knife. In motioning the co-worker to leave, the worker s hand came into contact with the knife and the worker sustained a serious laceration. The Panel ruled that the worker s actions did not take him out of the course of his employment. The headnote of this case states: In considering whether the accident occurred in the course of employment, the focus is on the worker to determine whether he was engaged in an activity that was reasonably incidental to employment. Fault was not a consideration. In this case, the type of horseplay engaged in was a common enough part of the work environment that it could not be said that the worker broke the employment nexus. In Decision No. 1886/04, the Panel described the kind of egregious behaviour will take a worker beyond the scope of employment. The Panel stated: It is apparent from the foregoing detailed extract that, in order to break the employment connection, there must be a deliberate and malign act, such as an assault or a sexual assault. The Panel also considers that the worker s compensation system is a no fault system. A worker within this no fault system is still entitled to benefits even if he or she is found to be at fault, and that fault leads to a workplace accident. By analogy, therefore, it is clear that in order to find that the employment nexus is ruptured, there must be more than carelessness, fault, or even some degree of negligence. There must be, we believe, some deliberate activity such as the assault discussed by the Tribunal Chair in the above-noted excerpt from the earlier decision, or a purposive attempt to cause hurt or harm, when the individual committing the guilty act knows or ought to know better. In my assessment, the applicant s behaviour was not remotely similar to the kinds of egregious behaviour that will remove a worker from the scope of employment. There is no evidence that the applicant purposely hurt the respondent. Even if the applicant was at fault, or careless or negligent, in not following the company s directive about leaving work, that is not sufficient, in my view, to take him out of the course of employment at the time of the accident. [50] In Decision No. 804/89, two workers were throwing dough balls at each other. This horseplay eventually escalated into a fight in which one of the workers repeatedly slashed the other with a knife. The Majority of the Panel found that the horseplay and resultant fight did not

15 Page: 14 Decision No. 1034/15 take the workers beyond the scope of their employment. In dissenting reasons, the Tribunal Chair ruled that the worker who slashed his colleague with a knife had removed himself from the scope of employment because the injury he inflicted was not an accidental wounding but rather was a deliberate attempt to inflict harm. [51] In my assessment, Plumb s conduct in moving the vehicle forward was not so egregious as to remove him from the scope of his employment. In moving the vehicle forward, Plumb did not intend to inflict harm on or to injure Mr. Hughes. Thus, the element of intent to commit harm that generally characterizes the kind of behaviour that will take a worker beyond the scope of employment is absent in this case. To use the words of the Panel in Decision No. 1886/04 Plumb s moving the vehicle forward was not a deliberate and malign act or a purposive attempt to cause hurt or harm. Nor was it a deliberate attempt to inflict harm as described in the dissenting reasons of the Tribunal Chair in Decision No. 804/89. The fatal injury resulted from Plumb s actions was unintended: it was an accident. [52] The reason that Plumb engaged in the activity that unfortunately resulted in the fatal injury to Mr. Hughes, was to get the job done more quickly. While it was a breach of the rules prescribed by his employer, his activity was undertaken for the purpose of advancing the progress of the evening s work. Plumb s actions were not unrelated to and divorced from the essential purpose of the enterprise; rather, Plumb moved the vehicle forward because that needed to be done in order to load the chickens onto the truck. [53] It is important to note that while Plumb s actions were a breach of his employer s rules, there is no evidence that they were a breach of the law. The evidence presented indicates that there is no law preventing a person without a valid truck driver s license from driving such a vehicle on private property, as opposed to a public highway. Further, despite the fact that the accident was the subject of investigations by the police and the Ministry of Labour, Plumb was not charged with any offence. [54] In short, the fatal injury in this case did not result from a deliberate attempt to inflict harm or injury on Mr. Hughes. Rather, it resulted from an action which, while a breach of the employer s rules, was a common practice in the industry and which was undertaken in order to get the job done more efficiently. It was not unrelated to the essential purpose of the work, that is, to catch the chickens, place them in cages, and load them onto the truck. Plumb s actions, while improper and ill advised, were not so egregious as to remove him from the scope of his employment. (e) Is Moore s Produce denied protection from the civil actions by virtue of subsection 28(4) of the WSIA? [55] Subsections 28(1) and (4) of the WSIA reads as follows: 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.

16 Page: 15 Decision No. 1034/15 Exception (4) Subsections (1) and (2) do not apply if any employer other than the worker s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. [56] I am at a loss to see how subsection 28(4) has an application in this case. Moore s Produce did not provide the vehicle used at the poultry farm on October 22, 2009 on a purchase or rental basis. No person purchased or rented the Moore s Produce tractor-trailer. Further, Moore s Produce did not supply the motor vehicle without also supplying a worker to operate the vehicle. As noted above, it supplied Cressman to operate the motor vehicle. The fact that Plumb got into the vehicle and moved it when he should not have does, not mean that Moore s Produce provided a motor vehicle without providing a worker to operate the vehicle. I find that subsection 28(4) is not applicable to the facts of this case and therefore Moore s Produce is not excluded, by virtue of this provision, from the protection against civil action set out in the WSIA. [57] At the time of the accident were Mr. Hughes s mother and sister his dependants? [58] Since Mr. Hughes was a worker in the course of his employment at the time of the accident, he is precluded from suing the applicants in this case who are all persons who are shielded from civil suit by virtue of section 28 of the WSIA. Further, pursuant to subsection 27(2), since Mr. Hughes s right to sue the applicants is taken away, so is that of his spouse, child, dependants is also taken away. For ease of reference, subsection 29(2) is reproduced again below: (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. [59] No issue was taken with the fact that the Joyes are Mr. Hughes s spouse and child. Therefore their right to sue the applicants is extinguished by the WSIA. The question that remains for determination is whether the Hughes, that is, the worker s mother and sister are also precluded from suing the applicants. [60] Dependants is defined in the WSIA as follows: dependants means such of the following persons as were wholly or partly dependent upon the worker s earnings at the time of his or her death or who, but for the incapacity due to the accident, would have been so dependent: 1. Parent, stepparent or person who stood in the role of parent to the worker. 2. Sibling or half-sibling. 3. Grandparent. 4. Grandchild. [61] There is no dispute that Mr. Hughes is the worker s mother and I. Hughes the worker s sister. Accordingly, in order for these persons to be dependants of Mr. Hughes, and therefore precluded from suing the applicants, they must be persons who at the time of the accident were were wholly or partly dependent upon the worker s earnings. The only information on this point is contained in the Hughes s Statement of Claim, which reads as follows: 1. The Plaintiff [I. Hughes], resides in Colleyville, Jamaica, and is the sister and a dependant of the late [Mr. Hughes] (hereinafter referred to as Hughes ).