FD: ACN=3132 ACC=R FD: DT:D DN: 358 STY:Neukom v. Solaroli PANEL: Signoroni; Drennan (dissenting); Mason DDATE: ACT: 8(9) KEYW: Right to sue;

Transcription

1 FD: ACN=3132 ACC=R FD: DT:D DN: 358 STY:Neukom v. Solaroli PANEL: Signoroni; Drennan (dissenting); Mason DDATE: ACT: 8(9) KEYW: Right to sue; In the course of employment. SUM: The defendants in a civil case applied for a determination of whether the Plaintiff's right of action was taken away. The issue was whether the Plaintiff was in the course of his employment. The worker was injured in a motor vehicle accident in the middle of the week. There was conflicting evidence whether the worker was working that day or had a day off. The majority of the Panel preferred the evidence presented by the defendants that the worker had a variable day off during the week and that he was paid for the day the accident occurred. Further, the employer had indicated that the worker was submitting a claim to the WCB. Therefore, the worker was in the course of his employment and his right of action was taken away. PDCON: TYPE:15 DIST: IDATE: HDATE: TCO:E. Newman KEYPER:R.S. Franklin; J.R. Calabretta XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 358 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c.539, as amended. AND IN THE MATTER OF an action commenced in the District Court of Ontario, Action No /85; B E T W E E N: MARK NEUKOM AND WEST YORK CHEV OLDS LIMITED. Applicants in this Application and Defendants in the District Court action. - and - OBERDAN SOLAROLI. Respondent in this Application and Plaintiff in the District Court action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 358 IN THE MATTER of an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c. 539, as amended. AND IN THE MATTER OF an action commenced in the District Court of Ontario, Court File # /85; B E T W E E N: MARK NEUKOM AND WEST YORK CHEV OLDS LIMITED. - and - OBERDAN SOLAROLI. Applicants Respondent WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 358 This Section 15 Application to the Appeals Tribunal was heard on June 19, 1986, by: A. Signoroni: Panel Chairman D. Mason : Member of the Tribunal representative of employers G. Drennan : Member of the Tribunal representative of workers THE SECTION 15 APPLICATION PROCEEDINGS This Section 15 Application arises out of a lawsuit between the Plaintiff, Oberdan Solaroli, and the Defendant, Mark Neukom, Remo Assogna and West York Chev Olds Limited, commenced in the District Court of Ontario at the City of Toronto, Action No The Application was brought by the Defendants, Mark Neukom and West York Chev Olds Limited. The Applicants did not attend but were represented by their lawyer, R.S. Franklin. The Respondent, Oberdan Solaroli, appeared and was represented by his lawyer, J.R. Calabretta. The Tribunal was assisted by E. Newman in her role as Tribunal counsel. THE NATURE OF THE APPLICATION This case involves a determination as to whether Mr. Solaroli was in the course of his employment on August 10, 1983, and if the answer to this question is affirmative, whether Mr. Solaroli's right of action as against Mark Neukom and West York Chev Olds Limited has been taken away by virtue of section 8(9) of the pre-april, 1985 Act which states: "No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers."

5 2 THE EVIDENCE The Panel heard and considered oral testimony under oath from Mr. Solaroli, Mr. Rabbito (the sole proprietor of Leny's Garage the company which was the owner of the car driven by Mr. Solaroli at the time of the accident) and from Ms. Speciale (a private investigator retained by the Applicants in this matter). The Panel notes that Mr. Rabbito was called to testify under subpoena by the Applicants. The Panel also considered statements of fact and law submitted by the Applicants and by the Respondent. In addition the Applicants provided the Panel with a police report of the August 10, 1983, motor vehicle collision, a plan of the relevant section of the City of Toronto, a medical report from Dr. W.J. Virgin dated October 30, 1984, and a medical report from Dr. S.A. Syed dated January 22, A copy of Mr. Solaroli's earning record kept by Leny's Garage was also submitted by Mr. Calabretta after the hearing at the request of the Panel. A copy of this document was sent to the Applicants who declined to make further submissions. THE PANEL S REASON In this Application the decision of the Panel is not unanimous. The member of the Panel representative of workers dissents and his dissent is attached. What follows is a decision of the majority of the Panel. It should be born in mind, therefore, that the reference to Panel in this decision refers to the majority. The key issue to be addressed in this Application is whether Mr. Solaroli, the Respondent, was in the course of his employment on August 10, 1983, the day when he was involved in a motor vehicle collision with the car driven by Mr. Neukom, one of the Applicants. There is no dispute that Mr. Neukom was employed by the co-applicant, West York Chev Olds Limited, a Schedule 1 employer, and that at the time of the accident, Mr. Neukom was in the course of his employment. There is also no dispute that as of August 9, 1983, Mr. Solaroli was employed by Leny's Garage, a Schedule 1 employer. Stated briefly, the position argued by Mr. Franklin, the Applicants' counsel, was that August 10, 1983, a Wednesday, was a regular working day for Mr. Solaroli, and that the motor vehicle collision took place within his regular working hours. On the other hand, the position advanced by Mr. Calabretta, the Respondent's counsel, was that Mr. Solaroli's terms of employment required him to work only five days. However, given that Saturday is a working day in the car business, arrangements were already in place at the time he started to work to have Wednesday as his day off. The motor vehicle collision took place on Wednesday, the second day of his employment with Leny's Garage. It was the Respondent's position that as it was a Wednesday, this was Mr. Solaroli's first day off and therefore he was not in the course of his employment at the time of the accident.

6 3 More specifically, the evidence relied upon by the Applicants in support of the argument that the worker was in the course of his employment is as follows: (1) The accident took place at approximately 4:00 p.m. while Mr. Solaroli, after seeing a friend - a used car dealer - was driving in a westerly direction at or near 1775 St. Clair Avenue West in Toronto, a few blocks west of Caledonia Park Road. (2) The car driven by Mr. Solaroli was owned by Leny's Garage, a business located at 2431 St. Clair Avenue West. (3) In addition to Mr. Rabbito, the owner of Leny's Garage, Mr. Solaroli was the only other salesman buying and selling cars for the employer. (4) In a report prepared by Dr. W.J. Virgin, dated October 30, 1984, and filed by the Respondent in the civil action, the following comments are made: "He was reviewed on the 16th of October, 1984, with reference to this report. He now walks well. He is working daily, six days a week as a car salesman. He has no time to go for any further therapy so he has given this up." (Emphasis added.) (5) Ms. Speciale, a private investigator, indicated having approached Mr. Rabbito by phone on October 21, In the course of their conversation, she was advised that Mr. Solaroli was employed to work five days a week between Monday and Saturday with a varied day off each week. When she first asked whether Mr. Solaroli had sustained any loss of income, Mr. Rabbito said no, because Mr. Solaroli had apparently submitted a WCB claim. (6) The likely existence of a WCB claim was also commented on by an officer of a private insurance company, on information received from Leny's Garage. The evidence relied upon by the Respondent in support of his position that the worker was not in the course of his employment is as follows: (1) At the time of the accident, Mr. Solaroli was on his way home, to 84 Northland St., a street further west from where the accident took place. (2) The police report of the motor vehicle collision indicates Mr. Solaroli's address to be at 78 Pembroke St., a street located east of Yonge Street. This address, according to Mr. Solaroli's evidence, is where his wife lived but was no longer his home since However, by the time of the motor vehicle collision, in August, 1983, Mr. Solaroli's evidence was that, he had not yet requested a change of address to reflect his correct home address. Mr. Solaroli further contended that he had advised the police officer of these circumstances but they were not reflected in the report prepared by the officer.

7 4 (3) Regarding the report prepared by Dr. Virgin, Mr. Solaroli denied ever having told the physician that he was working six days a week. (4) Mr. Solaroli confirmed that Wednesday was his day off. This was confirmed by Mr. Rabbito in his testimony. Mr. Rabbito's testimony was supported by previous correspondence from him to his solicitor dated September 15, 1983 and November 29, In our view, Mr. Solaroli's evidence was troublesome on a number of material points; in particular his evidence as to his actual home address and Wednesday as his weekly day off. We prefer the documentary evidence of the police officer who investigated the motor vehicle collision whose information was received from Mr. Solaroli at the time of the accident or shortly thereafter and that of Dr. Virgin. The Panel also preferred the evidence of Ms. Speciale over that of Mr. Rabbito on the question of Mr. Solaroli's work schedule because Ms. Speciale confirmed having made notes of her investigation soon after the conversation took place, whereas Mr. Rabbito admitted that he did not have a clear recollection of the conversation with Ms. Speciale. Regarding the testimony given by Ms. Speciale the Panel noted that Mr. Rabbito himself admitted the possibility that the arrangement of having Wednesday as a scheduled day off was something that might have been negotiated a week or two after Mr. Solaroli started his employment with Leny's Garage and may not have been in effect at the time of the accident. On the basis of the evidence noted above, the Panel finds that to the extent Mr. Solaroli had a day off in addition to Sunday, such day off likely varied, at least at the time of accident. Furthermore, the Panel accepts as a fact that Mr. Rabbito indicated to Ms. Speciale in October, 1983 that a WCB claim was in the process of being submitted by Mr. Solaroli regarding this incident. This suggests to us that Mr. Solaroli believed the incident was work related at the time it occurred. On the question of the earnings paid to Mr. Solaroli during the time in question, the relevant testimony of Mr. Rabbito in reply to questions by the Panel Chairman was as follows: "Mr. Rabbito: Panel Chairman: Mr. Rabbito: he would be paid every week Tell me when you made the first payment rather than when he would be paid. I can't tell you off hand... It would be on Friday, getting paid for whatever days of the same week. Panel Chairman: On the Friday you would pay him whether a week was completed or not? Mr. Rabbito: It wouldn't have been a week but a week minus a couple of days.

8 5 Panel Chairman: So, Friday he would be paid, regardless of whether a week was up or not." There is undisputed evidence before the Panel that Mr. Solaroli was paid $ for a five-day week. Mr. Solaroli's record of earnings obtained from Mr. Rabbito after the hearing and at the request of the Panel, shows that on Friday, August 12, 1983, he was paid $ gross salary. Given that Mr. Solaroli started to work on Tuesday, August 9, 1983, the payment of $ gross does not reflect the position argued by the Respondent. Mr. Solaroli's first pay cheque was for four days which would include remuneration for Wednesday, August 10, 1983, his alleged day off work. To conclude, we are of the view that at the time of the motor vehicle collision, Mr. Solaroli was in the process of returning to his employer's place of business and completing business for the employer, rather than off duty and on his way home. He was therefore in the course of employment at the time of the accident which took place at approximately 4:00 p.m. on August 10, Having found that Leny's Garage and West York Chev Olds Limited were Schedule 1 employers and that Oberdan Solaroli and Mark Neukom were workers of employers in Schedule 1 and in the course of their employment at the time of the August 10, 1983 collision, the Panel concludes that Oberdan Solaroli's right of action against the Defendant Mark Neukom and West York Chev Olds Limited is taken away by section 8(9) of the Workers' Compensation Act. THE DECISION (1) The application is allowed. (2) The right of action of Oberdan Solaroli has been taken away by Part 1 of the Workers' Compensation Act as against Mark Neukom, and West York Chev Olds Limited. DATED at Toronto, this 23rd day of December, SIGNED: A. Signoroni, D. Mason

9 DISSENT DECISION NO. 358 I am unable to agree with the majority decision in this application, as I cannot accept the conclusions reached by the other members of the Panel with respect to the evidence as presented at the hearing. For the Applicants to succeed in this Application, it must be established through evidence, on a balance of probabilities, that at the time of the accident Mr. Solaroli was in the course of his employment. I submit that the evidence does not establish this probability. The Applicants relied on the Applicants' evidence as listed in points 1 to 6 of the Majority Decision. Points 1, 2 and 3 are not in issue. Dealing with point 4: - it is not uncommon to see doctors' reports err on non-medical details reporting sequences of events etc. When my colleagues draw conclusions from this report concerning Mr. Solaroli working daily six days a week and relate that to the issue of his day off, I find this to be most inconclusive. It has been accepted by the majority that he worked five days a week. So plainly Dr. Virgin erred in his report. I would prefer the evidence of both Mr. Solaroli and his employer, Mr. Rabbito, that Wednesday was his day off. Also on this point, dealing with the wage data submitted by the employer, I find the majority reasoning most inconclusive. It is not unusual for salaried employees to be paid by the week regardless of time lost from work and the Chairman's questioning of Mr. Rabbito concluded with "So, Friday he would be paid, regardless of whether a week was up or not" would square with his payment on Friday, August 12, 1983, of $400.00, i.e. four-fifths of a week (Tuesday through Saturday with one day off). Other weeks thereafter he was paid also on a Friday for a five day week - $ (Monday through Saturday with one day off). Dealing with point 5: - the evidence was that this conversation took place some 10 weeks following the accident and indeed if any WCB claim was either contemplated or entered, it would have been well in process at that time and easily checked. We have no evidence of such a claim. Dealing with point 6: - this evidence was second hand and in my view carries less weight. In arriving at their decision my colleagues have relied on some portions of the evidence and have drawn conclusions which I submit, the evidence does not bear. Concerning his actual home address: - the evidence was clear on this, both at the hearing and as contained in the "Statement of Fact and Law" submitted by both parties. I do not agree with the inference drawn by my colleagues because of the different address contained in the Police Report.

10 It is not uncommon for someone to neglect to process a change of address and the police officer would record the address shown on the driver's licence. Mr. Solaroli had a perfectly reasonable explanation for his neglect. The majority of the Panel made their decision on the basis of credibility. Sopinka J., dealing with the assessment of credibility in Evidence in Civil Cases offers: "The general principle is that a Court or Tribunal cannot refuse to accept evidence if it meets the following conditions: (a) the statements of the witness are not in themselves improbable or unreasonable, (b) there is no contradiction in them, (c) the credibility of the witness has not been attacked by evidence against his or her character, (d) nothing appears in the witness' evidence or the evidence of other witnesses to throw discredit upon him, and (e) there is nothing in the witness' demeanour to suggest untruthfulness." (Sopinka, Supra at ) In the absence of any compelling evidence to the contrary, I have to accept the direct evidence given under oath by both Mr. Solaroli and Mr. Rabbito, which was that at the time of the accident Mr. Solaroli was not in the course of employment as it was his day off. For these reasons I would have dismissed the application. DATED at Toronto, this 23rd day of December, SIGNED: George Drennan.