WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1240/14

Transcription

1 WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1240/14 BEFORE: R. Nairn: Vice-Chair HEARING: June 18, 2014 and March 24, 2015 at Hamilton Oral DATE OF DECISION: July 3, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1471 APPLICATION FOR ORDER UNDER SECTION 31 OF THE WORKPLACE SAFETY AND INSURANCE ACT, 1997 APPEARANCES: For the applicant(s): For the respondent(s): Interpreter: J. Fitch and R. Runge, Lawyers Mr. Vaughan and Ms. Vaughan - Witnesses M. Hoy, Lawyer Ms. Olesiuk and Mr. Olesiuk, witnesses N/A 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. 1240/14 REASONS (i) Introduction [1] This is an application pursuant to section 31 of the Workplace Safety and Insurance Act 1997 (the WSIA ) by the defendants in an action filed in the Ontario Superior Court of Justice as Court as File No /09. [2] The following background information is, generally speaking, not contested and I have relied on it in reaching my decision: At the time of the incident under consideration here, the respondent, Mr. Olesiuk drove a water delivery truck which was owned by the applicant Hilltop Water Service ( Hilltop ). Hilltop was a sole proprietorship owned and operated by the co-applicant Mr. Vaughan. His spouse and co-applicant, Ms. Vaughan managed the day-today operations of the applicant, Hilltop. Hilltop carried on the business of water supply and delivery. At the time of the accident under consideration here, Hilltop was not reporting to the WSIB (the Board ). Mr. Olesiuk started working for the Hilltop on approximately August 13, 2004 after signing a written agreement to work as a supply driver. Pursuant to his agreement with Hilltop, Mr. Olesiuk was paid 35% of the gross amount of loads delivered in a particular day and $10 per hour for any down time/sitting time/shop work. According to the defendant, Mr. Olesiuk, on October 24, 2008, he was in the shop of Hilltop s business sanding down a truck in order to prepare it for painting. He worked on the truck at various periods during the day and into the evening. The next morning, October 25, 2008, Mr. Olesiuk was found bleeding, lying on the floor of the shop. There were no witnesses to the incident. Mr. Olesiuk was taken for medical attention and the Health Professional s Report (Form 8) of October 28, 2008 provided a diagnosis of Lt sub-arachnoid hemorrhage and indicated that patient transfer to Toronto Western Hospital for neurosurgery. Testimony provided by Mr. Vaughan and Ms. Vaughan indicates that after becoming aware of the accident, the Board conducted an investigation and concluded that Hilltop ought to have been reporting to them and subsequently ordered that it pay premiums retroactively from 2006 and continuing. In September 2009, Mr. Olesiuk along with his wife Ms. Olesiuk and daughter C. Olesiuk (by her litigation guardian Ms. Olesiuk) commenced an action in the Ontario Superior Court of Justice as Court File No /09. The Olesiuk s claim damages against Hilltop and the Vaughans.

3 Page: 2 Decision No. 1240/14 The defendants subsequently commenced this application requesting an order that the plaintiffs rights of action, with respect to the incident in October 2008, are taken away pursuant to Section 31 of the WSIA. (ii) Testimony of Mr. Vaughan [3] Under questioning from Mr. Fitch, Mr. Vaughan confirmed that he had been the owner of Hilltop since purchasing it in 1997/1998. Hilltop was in the business of delivering water. Initially, the company had consisted of two trucks which were driven by him and a co-worker. As the years passed, the business grew and Mr. Vaughan estimated that by 2008 there were three full-time drivers, a couple of part-time drivers and three trucks. [4] Mr. Vaughan confirmed that Hilltop owned the trucks and when not in use, they were parked at the Hilltop shop which was located on his property. Hilltop paid for the truck licences, the insurance, the maintenance, the gas and the oil. The customers to whom the water was delivered, were customers obtained by Hilltop. [5] Mr. Vaughan confirmed that each of the part-time or supply drivers signed an agreement before starting work. Mr. Olesiuk signed such an agreement before starting to work in August Among other things, the agreement called for the drivers to be paid on the basis of 35% of the value of the loads they delivered in a particular day. [6] The drivers would be provided with a list of destinations for the water deliveries. They would drive the water truck to the water station, about three miles from the shop to fill it up. They would then deliver the water to the customer, normally pumping it into a cistern. A customer might pay the driver in cash or by cheque made payable to Hilltop. Other customers were on account and would send their payment directly to Hilltop. Mr. Vaughan testified that the driver would be paid even if the customer did not pay Hilltop. [7] According to Mr. Vaughan, no one else was allowed to drive the truck or make deliveries. While the drivers were free to have an assistant come along, the driver would be responsible for them. [8] Mr. Vaughan confirmed that his wife was paid by Hilltop to look after the office functions. She carried out these duties in their home. [9] With respect to the incident in October 2008, Mr. Vaughan advised that he was aware that Mr. Olesiuk had painted one of their trucks before. There was another vehicle which required some painting and transmission work which was to be done in the shop. He saw Mr. Olesiuk in the shop in the morning of October 24, 2008, preparing the truck for painting. The paint and supplies needed for preparation were provided by Hilltop. [10] Mr. Vaughan acknowledged that he did not supervise the work which Mr. Olesiuk was performing that day. When he got back from work about 4 p.m. that day, Mr. Olesiuk was still there, along with a co-worker. He was sanding and doing body work. He spoke to him briefly and Mr. Olesiuk said that he was planning to go home for dinner. Mr. Vaughan saw Mr. Olesiuk again in the shop around 8 p.m. where he was working on the truck. Mr. Vaughan reminded him to turn off the lights and to lock up when he was finished and about 9:30 p.m. Mr. Vaughan went to bed. At 4 a.m. on October 25, 2008, Mr. Vaughan was awakened by his wife who noticed that the shop lights were still on. He went to the shop to investigate and found Mr. Olesiuk lying on the shop floor, bleeding. There was no indication as to what had happened.

4 Page: 3 Decision No. 1240/14 [11] Mr. Vaughan acknowledged that he had never reported to the Board and after the accident, there was an investigation which resulted in the company having to pay premiums retroactively. [12] Mr. Vaughan acknowledged that there were full-time drivers who worked approximately 7 a.m. to 4 p.m., five days a week. If there was work that those drivers were unable to perform, a supply driver would be called. The drivers were required to have safety shoes and gloves which they were responsible for purchasing. [13] Under questioning from Ms. Hoy, Mr. Vaughan confirmed that he had a full-time job, with another employer. He worked shift work, at least 40 hours a week with occasional overtime. As a result, he left the running of the Hilltop business to his wife. He also confirmed that he did not supervise either Mr. Olesiuk or any of the other drivers. [14] Mr. Vaughan testified that it was his wife who designed the supply driver agreement which Mr. Olesiuk signed before commencing work. It was his understanding that the intention of the document was that the drivers be considered subcontractors and not employees. Hilltop did not make any statutory deductions from the amounts paid to the drivers such as income tax, CPP, or EI. The drivers were paid GST/HST if they earned over $30,000 per year. The drivers were responsible for paying costs associated with any at-fault accidents. This included paying for the increase in insurance premiums. There was also a charge to be paid if a driver returned a vehicle low on fuel. The agreement was also intended to remind the drivers that they were part of a team even though they were subcontractors and not employees. [15] According to Mr. Vaughan, the drivers were able to choose which deliveries they wished to carry out. They could also pick and choose the hours they wanted to work. They were not told when they had to stop or start working. While his wife would prepare a list of deliveries for the day, the driver was free to do what he wished and the remainder would be left to the next day. There was no set schedule for the drivers as they were free to start at different times and stop whenever they wished. [16] With respect to the body work, Mr. Vaughan confirmed that he did not give any instructions to Mr. Olesiuk about how or when to do the work. He knew that Mr. Olesiuk had done some body work before and he did not train him. He was free to work and take breaks as he required. In any event, Mr. Vaughan was not in the shop at the time the work was being performed. [17] According to Mr. Vaughan, there were no training manuals provided for the drivers nor was there any classroom training. The only training consisted of shadowing a more experienced driver for a short period when first hired. [18] Mr. Vaughan considered the drivers to be subcontractors. They were responsible for obtaining their own DZ licence. The subcontractors were not given vacation pay and it was Mr. Vaughan s understanding that the Canada Revenue Agency and Employment Insurance had recognized the drivers as subcontractors. The drivers were also encouraged to maintain their own insurance. (iii) The testimony of Ms. Vaughan [19] Under questioning from Mr. Fitch, Ms. Vaughan confirmed that her husband purchased Hilltop in 1997/1998 and while he owned it, she managed it for him. Her duties included bank

5 Page: 4 Decision No. 1240/14 deposits, ordering and picking up parts, sending out pay cheques, handling telephone calls and data entry. Hilltop was involved in the business of delivering potable bulk water. [20] Ms. Vaughan recalled that when they first began the business, they had about 100 customers, two water trucks and a dump truck. There were two drivers including her husband who drove when he was not working elsewhere. Over the years, the number of clients increased as did the number of trucks and the number of drivers. Ms. Vaughan estimated that at the time Mr. Olesiuk started in 2004, they had six or seven drivers. [21] Ms. Vaughan confirmed that, with the assistance of her accountant, she drafted an agreement to be signed by the drivers before they started work. Mr. Olesiuk started working in about [22] According to Ms. Vaughan, there were two full-time drivers and when there was work they were not available to perform, Mr. Olesiuk would be the first part-time or supply driver to be called. If he did not wish to take that particular load, she would proceed to call one of the two or three other supply drivers. The drivers were all paid by cheque which was based on a commission of 35% of the value of the loads delivered. They had the choice of being paid every seven, 10, 14 or 30 days. [23] Ms. Vaughan confirmed that her husband owned the trucks, paid for the truck licences, the truck maintenance and repairs. [24] Ms. Vaughan testified that Mr. Olesiuk had been involved in a motor vehicle accident driving one of the company vehicles and as a result, he was paying $25 a month towards the increase in insurance premiums. [25] Ms. Vaughan testified that the customers belonged to Hilltop, Hilltop billed them and they paid Hilltop. [26] Ms. Vaughan testified that each day, a list was prepared of the water deliveries to be made. If additional requests came in during the day, they would be faxed to the water-loading station. The drivers would then come in and pick which loads they wanted to deliver. A supply driver would be called if the work could not be handled by the full-time drivers. [27] According to Ms. Vaughan, Mr. Olesiuk was not working a great deal in He had advised them that he wanted to reduce his hours to spend more time with his family and to be able to renovate his home. [28] Ms. Vaughan was questioned about the events of October 24, 2008, and indicated that she saw Mr. Olesiuk that morning around 9:30 a.m. when he gave her a list of materials he would need to repaint a truck. She had called Mr. Olesiuk before asking him if he would like to paint the vehicle. This would have been the third truck he had painted for them. He had previously been paid $10 an hour. [29] Ms. Vaughan saw Mr. Olesiuk again when she returned home at about 10 p.m. and Mr. Olesiuk indicated that he was going home. She then went in to sleep. She woke up about 4 a.m. and noticed that the lights were on in the shop and had her husband and a co-worker go back outside to check on the situation. They came back in to advise that they had found Mr. Olesiuk on the ground and then called 911. [30] Ms. Vaughan confirmed that the company had never reported to the WSIB before. When they purchased the company, they had been advised by a provincial government agency (she

6 Page: 5 Decision No. 1240/14 could not recall exactly which one) to organize the business so that the drivers were subcontractors/independent operators. She wrote up the Supply Driver Agreement and took it to her accountant to have it reviewed. Revenue Canada and Employment Insurance had always accepted that these drivers were independent operators. It was not until after the WSIB postaccident investigation that the issue arose of these drivers being considered workers. She had always felt that they were independent operators/subcontractors. [31] After the WSIB investigation, Hilltop was ordered to pay retroactive premiums to The business eventually closed in [32] Under questioning from Ms. Hoy, Ms. Vaughan confirmed the reason for the supply driver agreement was to have these drivers considered independent operators or subcontractors. They were paid a commission of 35% and at a rate of $10 an hour for other non-driving work. There was no deduction for CPP, EI or income tax and GST was paid on amounts over $30,000. [33] Ms. Vaughan also confirmed that, according to the agreement, if there were minor damages to a truck, the driver could either fix it himself, or Hilltop would do it and charge the driver. For more extensive damage, the driver could either pay for it himself or pay the deductible as well as the subsequent increase in premiums. The drivers were also responsible for costs associated with any traffic violations while driving. [34] According to Ms. Vaughan, new drivers would shadow more experienced drivers for the first week or two after being hired. After that, the only ongoing training would be asking advice from other drivers or the Vaughans about particular issues. [35] Ms. Vaughan confirmed that the supply drivers were able to work whatever days and hours they wanted and they were able to stop working whenever they wanted. There were no set break times and they could take as long as they wished. They were able to work on statutory holidays if they wanted. They could deliver the water loads in any order they wished, although the normal practice would be to deliver first to those who were out of water. The driver would return a list of those deliveries that had not been made and arrangements would be made for another driver to cover that list. The driver was able to make more money, the more he worked. Ms. Vaughan recalled that Mr. Olesiuk worked usually two or three days a week. [36] With respect to the truck painting, Ms. Vaughan confirmed that she had asked Mr. Olesiuk to paint the truck and it was left to his discretion as to what materials were necessary. While she had some experience in vehicle body work, she was not supervising Mr. Olesiuk or the two other co-workers who were involved in the project. They were capable of preparing the vehicle themselves. Ms. Vaughan acknowledged that Mr. Olesiuk, like all of the drivers, was extremely honest and she had no reason to question why he was at the shop that night. [37] None of the drivers wore a uniform and it was suggested that they obtain their own roadside assistance, i.e., insurance for health care. (iv) The testimony of Ms. Olesiuk [38] Under questioning from Ms. Hoy, Ms. Olesiuk advised that her husband worked as a track maintainer/truck driver for a railway for about 32 years before retiring in He had a DZ licence to operate these trucks which was paid for by his employer.

7 Page: 6 Decision No. 1240/14 [39] Ms. Olesiuk advised that after retiring, her husband found a job working with Hilltop driving a water truck. It was her understanding that he was paid at a rate of 30% of the cost of each load he delivered. [40] Ms. Olesiuk helped her husband with his income tax each year and she testified that he reported to the Canada Revenue Agency as being self-employed. She testified that her husband was paid by cheque from Hilltop and there were no statutory deductions. She did recall that for a period of about two years, Hilltop deducted $50 a week to cover costs associated with an increase in insurance because of an accident her husband had been involved in with one of Hilltop s trucks. [41] Ms. Olesiuk testified that her husband had done auto body work for many years as a hobby. He had done this work for both his own vehicles and for those belonging to other people. Neither of the Vaughans provided Mr. Olesiuk with any training about how to do auto body work. It was Ms. Olesiuk s recollection that her husband was being paid $10 an hour for the auto body work he was doing at the time of his accident. She recalled that it took a week or two before she could get Ms. Vaughan to pay her husband for the work he had done prior to the accident. She eventually obtained a cheque but could not recall the amount. There were no statutory deductions from the amount paid. [42] Ms. Olesiuk was questioned about the day of the accident and she recalled that her husband left home about 9 a.m. and returned about 4 p.m. to see their daughter and to have supper. Her husband returned to Hilltop about 4:45 p.m. They spoke by telephone about 9 p.m. that night and he said he would be working a little longer so he could finish up the auto body work he was performing. Ms. Olesiuk called her husband back again at 12 a.m., 3 a.m. and 6 a.m. but received no answer. At about 6:15 a.m. she received a call from Ms. Vaughan advising her that they had discovered Mr. Olesiuk lying on the floor of the shop. Ms. Olesiuk then drove to the shop and arrived about the same time as the ambulance. She found her husband propped up on the floor bleeding. He was eventually taken to a hospital emergency department. His injuries included a brain injury, a broken shoulder, three broken ribs and a punctured ear drum. She testified that he continues to experience the effects of the brain injury, has frequent headaches and shoulder pain and has difficulty hearing. She testified he is a different person than he was prior to the accident. [43] Under questioning from Ms. Hoy, Ms. Olesiuk advised that with respect to the water delivery business, Hilltop was responsible for paying for the trucks oil and gas as well as any maintenance expenses. She testified that her husband only worked for Hilltop after he retired. He did not do any body work for anyone else. [44] Ms. Olesiuk testified that he was paid $10 an hour for the body work. He had not provided a quote for these services. The work was done in the garage on the Hilltop property. Mr. Vaughan had taken this particular truck off the road to have its transmission repaired and the body work was done while it was out of service. She testified that the Vaughans selected the colour the truck was to be painted. Ms. Olesiuk testified that while her husband was doing the body work on the truck, Mr. Vaughan came in to see her husband periodically. [45] Ms. Olesiuk advised Mr. Fitsch that it was not unusual for her husband to work all night until he got something finished. She confirmed that the only tool he took with him to do this body work was a sanding block and perhaps a drill. The other materials were provided by the Vaughans.

8 Page: 7 Decision No. 1240/14 [46] Ms. Olesiuk also confirmed that the customers to whom her husband delivered water were customers of Hilltop and they entered into contracts with Hilltop, and not her husband. Each day her husband would receive a list of deliveries from the Vaughans and her husband would drive to have his truck filled with water and then deliver the water to the customers. The water was obtained from the municipality and the municipality billed Hilltop. It was Ms. Olesiuk s understanding that at the end of each day, her husband would return to the Hilltop shop and give the paperwork and cheques to the Vaughans. [47] Ms. Olesiuk testified that it was up to her husband to decide how much he wanted to work and it was not unusual for him to work seven days a week. He was able to start each day whenever he wanted. Her husband had done body work on one other truck for Hilltop prior to the date of the accident. (v) The testimony of Mr. Olesiuk [48] Under questioning from Ms. Hoy, Mr. Olesiuk confirmed that he had a Grade 12 education and had worked for a railway from 1975 up until his retirement in the early 2000s. He had worked as a track maintainer and this employer had paid for him to obtain his DZ licence. He testified that he did truck driving and some body work for Hilltop but was never provided with any training by them. He had done body work as a hobby from a very young age and had worked for a period of time in a friend s body shop while he was with the railway. [49] Mr. Olesiuk testified that he was referred to Hilltop by an acquaintance at the local hardware store. He was eventually given the job of delivering water and was paid a commission of 35% of each load he delivered. The more he worked, the more he could make. [50] Mr. Olesiuk advised that each morning, Ms. Vaughan would provide a list of deliveries for that day and he and two or three other drivers would divide them up amongst themselves. He usually came to work about 7 a.m. although that might change depending on the number of deliveries. He was able to choose the route he travelled and he could determine how long he wanted to work. There was no income tax deducted from his paycheque although he was deducted $50 a week for a time to compensate Hilltop for an increase in their insurance premiums because of an accident he was involved in. It was Mr. Olesiuk s understanding that he was an independent contractor. [51] Mr. Olesiuk testified that Hilltop was not involved in the body work business and as a result they asked him to work on their trucks. The truck which he was performing body work on at the time of his accident, was the truck he normally drove in his deliveries. He had also done body work on a bigger truck. The Vaughans were responsible for picking the colour the truck was to be painted and he told Ms. Vaughan the supplies that would be needed to do the work. He recalled bringing a small sanding block with him but all of the other materials and equipment were provided by the Vaughans and Hilltop. The Vaughans did not tell him how to do the body work. He did recall that Mr. Vaughan would come from time to time to see how he was doing. He was paid $10 an hour for the work with no deductions. He recalled that there was an agreement between he and Hilltop that he would be considered an independent contractor. He recalled reporting to Revenue Canada that he was self-employed. [52] Mr. Olesiuk was questioned about the day of the accident and he remembered that at about 10 p.m. that night, Mr. Vaughan had indicated he was finished for the day and was going into the house. Mr. Olesiuk could not recall the mechanics of the accident but felt he must have

9 Page: 8 Decision No. 1240/14 slipped and fallen and knocked himself out. He remembered piercing his right eardrum, breaking his collarbone and three ribs and shoulder blade. He also suffered a brain injury. [53] Mr. Olesiuk recalled that prior to his accident, he had gone home for supper and then returned to work on the truck some more. The body work was being done on the truck while it was having its transmission repaired. There was no prior agreement about how many hours he could work on the truck, it was up to him. He testified it was up to him to choose when he wanted to work and he could leave whenever he wanted. [54] Under questioning from Mr. Fitch, he confirmed that he had been employed with a railway and had obtained his DZ licence there. There was no need for him to apply for it again. He also confirmed that he had learned body work as a young man and there was no need for further training on that job either. He testified that he had done body work on a larger truck prior to the date of his accident and the Vaughans had been very happy with his work. He recalled spending about 70 hours on that job and being paid $10 an hour. [55] Mr. Olesiuk confirmed that he was paid a commission of 35% of the price of each load regardless of any increases or decreases in the prices of water, gasoline or truck maintenance. Those matters were all concerns of Hilltop. It was also the responsibility of Hilltop and the Vaughans to keep the trucks operating and maintained. [56] Mr. Olesiuk testified that the transmission work being performed on this truck was also done in the Hilltop shop. [57] Mr. Olesiuk testified that each day he would be provided with a list of delivery locations and the normal practice was to deliver water first to those customers who didn t have any. The drivers would divide the list up for themselves and there might be occasions when other drivers would leave extra work for him. At the end of the day, he would take all of the paperwork from the day to Ms. Vaughan. He would tell her if he was coming in for work the next morning and there might be occasions when she would advise he didn t need to come that day. Mr. Olesiuk testified that he didn t deliver water for anyone else. [58] If the truck he was driving needed gasoline, he would take it to a specific gas station where the Vaughans had an account. If some of the deliveries were not made that particular day, they would be left to the next day. [59] Mr. Olesiuk confirmed that the Vaughans deducted $50 a week from his pay for about a year to pay for increased insurance costs related to an accident he had been involved in with the company truck. [60] Mr. Olesiuk recalled that while the truck was in having body work done, Mr. Vaughan had another individual removing mirrors etc. from the truck to make it more accessible. The Vaughans paid that other worker, not Mr. Olesiuk. [61] Mr. Olesiuk advised Mr. Fitch that Mr. Vaughan was in and around the shop the day the body work was being carried out but they were not doing body work together. He remembered that he left for dinner the night of accident but then returned. He saw Mr. Vaughan throughout the evening before he turned in for the night about 10 p.m. [62] Mr. Olesiuk testified that he had never applied to the WSIB for benefits after the accident. He has not received money from any source since his accident.

10 Page: 9 Decision No. 1240/14 (vi) Analysis [63] Since this accident occurred in 2008, the applicable legislation is the Workplace Safety and Insurance Act, 1997 (the WSIA ). [64] Section 28 (1) of the WSIA provides: 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. [65] In light of the above, in order to be successful in this matter, the applicant must establish that at the time of the events on October 24/25, 2008, Mr. Olesiuk was a worker of a Schedule 1 employer and he was injured in an accident that arose out of and in the course of his employment with that Schedule 1 employer. [66] With respect to the status of Hilltop, both parties have agreed that at the time of the accident, it was not reporting to the Board. Rather, after the accident and a subsequent Board investigation, it was determined that Hilltop ought to have been reporting to the Board and they were retroactively assessed the premiums. This information is consistent with the material provided by the Board in Addendum No. 1 which indicates Hilltop Water Services is an inactive Schedule 1 employer with a coverage start date of January 1, The account has been inactive since June 30, [67] In her submissions, Ms. Hoy did not raise any concerns about whether or not Hilltop was a Schedule 1 employer. As Mr. Fitch noted in his submissions, it is now well accepted that a company s failure to register with the Board is not, in and of itself, a bar to a worker receiving benefits. If it is determined that a company is carrying out a business activity which ought to be reported to the Board, injured workers will be entitled to benefits whether or not the company was actually reporting to the Board at the time of the accident. In this case, as Mr. Fitch noted in his submissions, the business activity performed by Hilltop fell within the Classification Unit of E Bulk Liquids Trucking. This particular business activity is compulsorily covered under Schedule 1. The respondent did not take any issue with Mr. Fitch s characterization of Hilltop s business activity. As such, I find that at the time of the accident under consideration here, Hilltop was carrying out a business activity which was, or at least ought to have been, compulsorily covered under Schedule 1. [68] Similarly, in her submissions, Ms. Hoy did not take issue with Mr. Fitch s position that if Mr. Olesiuk was a worker, that his injuries arose out of and in the course of his employment. While not binding on the Tribunal in section 31 applications, the Board has provided a copy of Operational Policy Manual ( OPM ) Document No entitled Accident in the Course of Employment. This policy provides that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time and activity indicate that the accident was work-related. [69] Reviewing the evidence in this case, were it to be determined that Mr. Olesiuk was a worker of Hilltop, I find that the accident occurred in the course of his employment. In reaching that conclusion, I have taken particular note of the following:

11 Page: 10 Decision No. 1240/14 The accident occurred in a shop owned by Hilltop. While performing the body work on the truck, Mr. Olesiuk did not have fixed working hours. As both of the Olesiuks noted in their testimony, Mr. Olesiuk was free to work whatever hours he wished on the body work. The testimony of the witnesses was consistent to the effect that on the day of the accident, Mr. Olesiuk decided to stay past 10 p.m. to complete some tasks he was working on. Mr. Vaughan was aware that Mr. Olesiuk was there to perform body work and raised no objection to him continuing after he turned in for the night. The evidence of the witnesses is consistent to the effect that the reason Mr. Olesiuk was in the shop on the night of October 24, 2008 was to perform body work on one of Hilltop s trucks. He was not engaged in an activity to satisfy a personal need but was there performing a task incidental to his work with Hilltop. While there were no witnesses to the accident and Mr. Olesiuk testified he could not recall the mechanics of the accident, he felt he must have suffered his injuries due to a slip and fall while working. As indicated above, Ms. Hoy did not take issue with the position that the injuries arose out of and in the course of employment. [70] In light of the above, I find, that if Mr. Olesiuk was a worker, that the injuries he sustained arose out of and in the course of his employment. [71] Given my findings that Hilltop was a Schedule 1 employer at the time of the accident and that the injuries arose out of and in the course of Mr. Olesiuk s duties with the accident employer, the remaining issue to be determined is whether, at the time of the accident on October 24, 2005, Mr. Olesiuk was a worker of Hilltop or an independent operator. Independent operators are not insured unless they voluntarily elect to be considered workers by applying to the Board for optional insurance. [72] The phrases employer, independent operator and worker are defined in section 2(1) of the WSIA as follows: 2(1) In this Act, employer means every person having in his, her or its service under a contract of service or apprenticeship another person engaged in work in or about an industry and includes, (a) a trustee, receiver, liquidator, executor or administrator who carries on an industry, (b) a person who authorizes or permits a learner to be in or about an industry for the purpose of undergoing training or probationary work, or (c) a deemed employer; 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; worker means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following: 1. A learner. 2. A student.

12 Page: 11 Decision No. 1240/14 3. An auxiliary member of a police force. 4. A member of a municipal volunteer ambulance brigade. 5. A member of a municipal volunteer fire brigade whose membership has been approved by the chief of the fire department or by a person authorized to do so by the entity responsible for the brigade. 6. A person summoned to assist in controlling or extinguishing a fire by an authority empowered to do so. 7. A person who assists in a search and rescue operation at the request of and under the direction of a member of the Ontario Provincial Police. 8. A person who assists in connection with an emergency that has been declared to exist by the Premier of Ontario or the head of a municipal council. 9. A person deemed to be a worker of an employer by a direction or order of the Board. 10. A person deemed to be a worker under section A pupil deemed to be a worker under the Education Act. [73] In addition to the statutory definitions, the Board has also provided a copy of OPM Document No entitled Workers and Independent Operators. This policy provides in part: Policy The WSIB uses questionnaires (a general questionnaire and six industry-specific questionnaires), to gather information to help determine if a person is employed under a contract of service. The questionnaires reflect the principles of the organizational test (see below). Persons employed under a contract of service are workers. Independent operators are not employed under a contract of service. The WSIB has the authority to determine who is a worker or an independent operator under the Workplace Safety and Insurance Act Guidelines General 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. (See , Optional Insurance.) Independent operators may not be insured through the hiring company s (payer s) WSIB account Organizational test

13 Page: 12 Decision No. 1240/14 The organizational test recognizes features of control, ownership of tools/equipment, chance of profit/risk of loss, and whether the person is part of the employer s organization, or operating their own separate business. ( ) [74] The policy provides assistance to adjudicators in determining whether a person works under a contract of service (worker) or a contract for service (independent operator). The policy, which applies the organizational test to determine who is a worker and who is an independent operator, lists a number of factors to be considered in making that assessment. These include instructions, training/supervision, personal service, hours of work, full-time work, order or sequence of work, method of payment, licences, serving the public, status with other government agencies, risk of profit or loss, continuing need for type of service, hiring/supervising/paying assistance, doing work on purchasers premises, oral and written reports, right to sever relationship and working for more than one firm at a time. [75] The Tribunal generally uses an organizational test similar to that set out in the Board policy, however this test has become known as the business reality or hybrid test. Decision No. 921/89 noted: 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 assist 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 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. [76] Decision No. 1443/06 noted: Citing Decision No. 921/89, Decision No. 395/94 also emphasizes that no one factor is determinative, and it is the substance, rather than the form, of the relationship which determines whether a person is a worker or independent operator for the purposes of the Act. The name applied to the test, whether integration, organizational, hybrid or business reality, is not important. As the Panel stated in Decision No. 395/94, the question to be asked is what is the true nature of the service relationship between the parties, having regard to all relevant factors impacting on that relationship? [77] The business reality test is a multifactorial test. Once all the factors have been weighed, the test should determine the true nature of the relationship between the workplace parties (see for example Decision Nos. 921/89, 395/94, 1146/02 and 1443/06I). [78] The Tribunal has also considered the factors in light of the stated intention of the parties to a contract in question. According to Tribunal decisions, the intention of the parties will be given significant weight, subject to the qualification that the stated intention of the parties must be consistent with and supported by objective factors (see for example Decision Nos. 106/05 and 1034/07I). [79] The Tribunal has also noted that the business reality test applies similar factors to those set out by the Supreme Court of Canada in Ontario Ltd. v Sagaz Industries Canada Inc.

14 Page: 13 Decision No. 1240/14 (2001) SCC 59. Justice Major for the Court in Sagaz, looked at the factors used in determining an independent operator and found: 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. [80] Sagaz and Tribunal decisions also make it clear that the factors are 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 (see for example Decision Nos. 1785/04 and 88/09). [81] As is the case with many section 31 applications, there are factors present here which support both interpretations of Mr. Olesiuk s status. As the Tribunal case law suggests however, I must consider the evidence in its entirety and determine the true nature of the relationship between the parties. I must determine on a balance of probabilities, whether at the time of his accident in October 2008, Mr. Olesiuk was working under a contract of service or a contract for service. [82] After considering all of the evidence before me, including the testimony provided by the witnesses and the submissions provided by the representatives, I find, on a balance of probabilities, that at the time of the accident in October 2008, Mr. Olesiuk was a worker of Hilltop with respect to both his truck driving and auto body work. As concerns his truck driving, I have taken particular note of the following: Hilltop owned the truck which Mr. Olesiuk drove. Hilltop was responsible for paying all the costs associated with the operation of the truck i.e. maintenance, insurance and gasoline. Mr. Olesiuk used the truck for Hilltop business only. Each day when he reported for work, Mr. Olesiuk would be provided with a list of the water deliveries to be made that particular day. Ms. Vaughan would generally provide some direction as to which deliveries were to be made before others. When he started the job, Mr. Olesiuk was provided with some brief training about how to make the water deliveries. Mr. Vaughan testified no one else except the drivers he hired were allowed to drive the truck or make deliveries. While drivers could hire an assistant, Mr. Olesiuk never hired others to do his delivery work for him. While in theory, Mr. Olesiuk could have done work for others, the testimony of both Ms. Olesiuk and Mr. Olesiuk was that he only did work for Hilltop. Mr. Olesiuk also testified it was not unusual for him to work seven days a week.

15 Page: 14 Decision No. 1240/14 The customers to whom water was delivered were Hilltop s customers. Mr. Olesiuk did not obtain customers on his own. Mr. Olesiuk did not have to pay for the water he was delivering. This bill was sent to Hilltop. Mr. Olesiuk had no meaningful chance of profit in performing his work. His only means of increasing his income was to perform more deliveries. As noted in Decision No. 701/10, the fact that a worker can increase his or her pay by working more hours, or driving more miles, or completing more standpipe removals is not a chance of profit. The worker was paid the same commission rate on his deliveries regardless of whether the price of water, gasoline or other costs increased. Mr. Olesiuk did not process the paperwork received from the customers. He would return the documentation and money to Ms. Vaughan each day for further processing. On August 13, 2004, Mr. Olesiuk signed a Supply Driving Agreement which indicated in part: Subcontractors We will pay you 35% of your gross loads per contracted day. S/C downtime at $10 per hour flat rate for shopping or setting time. ( ) You are responsible for paying your own taxes and CPP. And carrying your own insurance roadside etc. We will not take deductions from you unless specified below cost applied to your situation. Your accountant can further explain if needed. ( ) Being a contractor and not really an employee our minds start to wander. We become opinionated about who and what we are doing. Fussy on where we go. And tends to make us forget we are part of a Team! And never really alone. ( ) You are all subcontractors and can make choices of where & when you work but we must be notified of your plans because we do have enough work to keep you supplied at a regular rate but if you cannot provide us with the service we require we must replace you. While it is accepted that Mr. Olesiuk signed this agreement provided by the Vaughans when he started with Hilltop and he described himself as self-employed in his dealings with Revenue Canada up until the time of the accident, neither of these factors is determinative in deciding the relationship between the parties. In my view, the intention of the parties reflected in this agreement is not consistent or supported by the balance of other objective factors which I have discussed above. [83] In addition to being satisfied that Mr. Olesiuk was a worker with respect to his truck driving duties, I am also satisfied that he could be considered a worker of Hilltop for the

16 Page: 15 Decision No. 1240/14 purposes of his auto body work. This is the work he was performing at the time of the accident. In reaching that conclusion, I have taken particular note of the following: Mr. Olesiuk was performing the body work on one of Hilltop s vehicles in the Hilltop shop. Mr. Olesiuk was repairing the body of the truck he normally drove. Mr. Olesiuk had done body work for Hilltop on their trucks in the past. While it is acknowledged that neither of the Vaughans provided Mr. Olesiuk with any training or direction on how to perform the body work, I agree with Mr. Fitch s position that this factor should not be given significant weight given it would not be unusual for an employer to hire a worker with skills the employer did not possess. While Mr. Olesiuk had some freedom to pick and choose when he did the body work, the evidence of both the Olesiuk s was consistent in suggesting that there was an overriding requirement that the work be done while the vehicle was having its transmission worked on. Mr. Olesiuk was not driving while he was doing the body work. There does not appear to have been any significant negotiation over the amount to be paid for the body work. As was the case with the prior body work, Mr. Olesiuk was paid a flat rate of $10 an hour. There was no meaningful chance of profit. With the exception of a sanding block, all of the auto body materials were provided by Hilltop. The Olesiuk s confirmed in their testimony that Mr. Olesiuk was not doing body work for anyone else during his time with Hilltop. Mr. Olesiuk did not hire others to assist him with the body work. Mr. Olesiuk did not have a separate business established carrying out body work. [84] After considering all of the evidence before me, I find, on a balance of probabilities, that at the time of the accident on October 24, 2008, Mr. Olesiuk was not performing a business on his own account be it either truck driving or auto body work. He was involved in a contract of service or an employer-employee relationship where a worker agrees to work for an employer on a full- or part-time basis in return for wages or a salary. In my view, the essence of the relationship between Mr. Olesiuk and Hilltop was one of worker and employer. [85] Having concluded that at the time of the accident in October 2008, Mr. Olesiuk was a worker of a Schedule 1 employer who was injured in the course of his employment, his right to sue his employer and the Vaughans is taken away pursuant to section 28 of the WSIA. The parties also agreed that if the rights of action of Mr. and Ms. Olesiuk were taken away, that the right to sue of their daughter would also be taken away.

17 Page: 16 Decision No. 1240/14 DISPOSITION [86] The application is allowed. [87] The respondents rights of action with respect to the accident on October 24, 2008, are taken away. DATED: July 3, 2015 SIGNED: R. Nairn