WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1572/16

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 1572/16 BEFORE: A. G. Baker: Vice-Chair HEARING: June 16, 2016 at Toronto Oral DATE OF DECISION: February 13, 2017 NEUTRAL CITATION: 2017 ONWSIAT 457 APPLICATION FOR ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the Applicant: For the Respondent: For the Co-Applicant: K. Mitchell, Lawyer Self-Represented K. Smockum, 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

Decision No. 1572/16 REASONS (i) Introduction [1] This is an application under section 31 of the Workplace Safety and Insurance Act, 1997, (the WSIA ), in regard to an action filed in the Ontario Superior Court of Justice, with Court File No. CV-14-117679-00, between K. Zeratkkar ( KZ ), plaintiff, and N. Marquez ( NM ) defendant/co-applicant. The plaintiff, KZ, who is the respondent to this application, commenced an action on February 3, 2014, seeking damages for personal injury as a result of a motor vehicle accident (MVA) on July 9, 2012, at approximately 1:15 p.m. [2] The application was made by co-applicants Economical Mutual Insurance Company and NM. The applicants seek a declaration from the Tribunal that the action commenced by the respondent is one which is barred by the WSIA. The applicants claim that KZ and NM were workers in the course of their employment at the time of the incident, and therefore, the respondent s right of action is taken away by the WSIA. [3] As will be dealt with further below, 1783980 Ontario Inc. o/a Firdos Gourmet Foods (the employer of KZ), was claimed not to be a registered Schedule 1 employer until sometime following the MVA. However, it was confirmed that Roy Foss Motors (the employer of NM) was an active Schedule 1 employer at the time of the MVA. (ii) Background [4] The background to this matter was not largely disputed, and was well described in the statement from the Applicant. On July 9, 2012 at approximately 1:15 p.m., KZ was driving his employer s 2000 Dodge Caravan westbound on Glen Cameron Road in Thornhill, Ontario. NM was operating a 2012 Cadillac SRX driving northbound on Yonge Street. KZ entered the intersection of Glen Cameron Road and Yonge Street to turn left on a green signal light. NM disobeyed a red traffic light and struck the minivan being driven by KZ. KZ claims he suffered personal injuries as a result of the MVA. [5] In regard to the status of the individuals, KZ was claimed to be working for Firdos Gourmet Foods, employed as a sales manager. As will be noted further, it was submitted that KZ was in the course of employment at the time of the accident, and was driving in part on a sales assignment. The status of NM in this case was not largely disputed. He was a car jockey for Roy Foss Motors, and driving for work purposes at the time of the accident. As stated in the materials filed with the Tribunal, NM was in the course of delivering a vehicle to a customer in downtown Toronto. [6] It was disputed whether KZ was a worker in this case. However, the Applicant submitted that KZ was working full-time as a sales manager, attending offices of clients all over Ontario since September 2009. He was reported to earn a guaranteed income of $1,019 net biweekly. [7] It was further noted that KZ claimed benefits from the Economical Mutual Insurance Company, the insurer of his employer s company vehicle. KZ was paid benefits by the insurer and he also issued a claim against NM, as noted above. [8] I also note for the record that no materials were filed by the Respondent in this case. He also appeared self-represented and chose to proceed in that regard. Also, for the record, the

Page: 2 Decision No. 1572/16 Right to Sue statement filed by the co-applicant NM largely agreed and did not add any further substantive submissions to those filed by Economical Mutual Insurance Company. Those submissions were considered in the course of reaching the below decision. (iii) Issues [9] As noted above, the status of NM and Roy Foss Motors was not largely in dispute in this case. A witness employed by Roy Foss Motors, M. Forrester, also appeared at the hearing and confirmed the status of NM as a car jockey who was operating a customer s car at the time of the accident. There was also no substantive challenge from any party, and I find that NM was a worker in the course of employment for a Schedule 1 employer, registered with the WSIB, at the time of the MVA. [10] It remains to determine: 1. Whether the respondent was a worker at the time of the MVA. 2. Whether the respondent was in the course of his employment at the time of the MVA. 3. Whether the alleged failure of his employer to register with the WSIB until after the MVA is a bar to the respondent claiming benefits. (iv) The Law [11] Section 31 of the WSIA 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). [12] Under the WSIA, a worker who sustains a personal injury by accident arising out of and in the course of employment is entitled to benefits under the insurance plan established by the WSIA. However, according to subsection 26(2) of the WSIA, the worker is prohibited from suing his or her own employer. It reads as follows: (2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker s survivor or a worker s spouse, child or dependant has or may have against the worker s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer. [13] Second, subsection 28(1) prohibits the worker from suing, among other persons, another Schedule 1 employer and another worker. It 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:

Page: 3 Decision No. 1572/16 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer. [14] Subsection 28(3) sets out an exception to subsection 28(1). The general prohibition against suing another worker only applies if the workers were acting in the course of their employment: (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. (v) Board policy [15] I note that the Workplace Safety and Insurance Board (the Board ) has several policies with respect to the issue of whether a worker s accident occurred in the course of employment. While not binding on the Tribunal for the purposes of a right to sue application, the policy is nevertheless instructive. The policy entitled Accident in the Course of Employment is set out in Board Operational Policy Manual Document #15-02-02. It provides that: If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. [16] The definition of premises is set out in the policy entitled On/Off Employer s Premises contained in Operational Policy Manual Document #15-03-03, and includes parking lots. It states: Policy A worker is considered to be in the course of employment on entering the employer's premises, as defined, at the proper time, using the accepted means for entering and leaving to perform activities for the purpose of the employer's business. The "In the course of employment" status ends on leaving the employer's premises, unless the worker leaves the premises for the purpose of the employment. The employer's premises are defined as the building, plant, or location in which the worker is entitled to be, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways, and roads controlled by the employer for the use of the workers when entering or leaving the work site. An accident shall be considered to arise out of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident the accident is occasioned by the injured worker using, for personal reasons, any instrument of added peril such as an automobile, motorcycle, or bicycle, except when the accident was caused by the condition of the road or happening under the control of the employer, or the worker is performing an act not incidental to his work or employment obligations. [17] I also note Board Operational Policy Manual Document #15-03-05, which addresses the general policy and guidelines regarding Travelling. The policy states in relevant part as follows: Policy As a general rule, a worker is considered to be in the course of the employment when the person reaches the employer's premises or place of work, such as a construction work

Page: 4 Decision No. 1572/16 site, and is not in the course of employment when the person leaves the premises or place of work. Guidelines Travel on employer's business When the conditions of the employment require the worker to travel away from the employer's premises, the worker is considered to be in the course of the employment continuously except when a distinct departure on a personal errand is shown. The mode of travel may be by public transportation or by employer or worker vehicle if the employment requires the use of such a vehicle. However, the employment must obligate the worker to be travelling at the place and time the accident occurred. Proceeding to and from work The worker is considered to be "in the course of employment" when the conditions of the employment require a worker to drive a vehicle to and from work for the purpose of that employment, except when a distinct departure on a personal errand takes place enroute. "In the course of employment" also extends to the worker while going to and from work in a conveyance under the control and supervision of the employer. (vi) Decision (a) Was the Respondent a Worker? [18] It is important in this case to note again that KZ did not file materials with the Tribunal and chose to proceed unrepresented at the oral hearing. He also made very brief final submissions that made two basic claims. First, he submitted that the employer was not registered with the WSIB at the time of the MVA, which would bar his entitlement to benefits and to the granting of a section 31 order in this case. Second, KZ submitted that he was not performing his regular duties at the time of the MVA. Rather, he had taken both his own son and a colleague s daughter to lunch, which is when the accident occurred. He made no final submission regarding his status as a worker. [19] I turn first to the issue of whether KZ was a worker at the time of the accident. I note that KZ did not largely dispute his status in this case. It was accepted that he was employed with Firdos at the time of the accident. It was stated that he drove a company owned van and that his hours varied. His title was sales manager, and he did various jobs for Firdos. He stated that he was a salaried employee as noted above, that he was issued a T4 for tax purposes, and that it was a full-time job from Monday to Friday and sometimes on weekends. T4 slips and cheques were also on file for 2012. There was a consistent gross and net income stream, with statutory deductions as though he was an employee. [20] Much of the above noted evidence suggests that KZ was a worker, not an independent operator. It was also confirmed that KZ had no ownership interest in Firdos and his duties were widespread, from sales to delivery to inventory, and importantly, collections. He stated that he also did bank deposits, sometimes stocked the warehouse and was responsible for much of the Toronto area. [21] Again, the respondent did not have an ownership interest, worked full-time regular hours for Firdos, and was paid as an employee with statutory deductions, and issued an annual T4 slip. While he did not generally dispute his status, even if it had been disputed, I find that the evidence

Page: 5 Decision No. 1572/16 on file and the testimony provided indicates that KZ was a worker under the WSIA at the time of the MVA in question. (b) Was the Respondent in the course of employment? [22] As noted above, KZ submitted that he had taken his son and a daughter of a colleague to lunch at the time of the accident. He claimed he was not performing any work related activities when the MVA occurred. In that regard, there was no dispute that the two children were in the company van at the time of the accident. It was also evident that at least a portion of the reason that they were travelling was to go to lunch at a nearby plaza, about 5 minutes from the office. [23] However, as noted above, the van was owned by his employer. The accident also occurred at 1:15 p.m. approximately, and not far from the office. KZ was also questioned about why he was in the company vehicle at the time of the accident. It was confirmed that he was not only taking the children for lunch, but also had a work related purpose for the trip. It was stated that he was also supposed to go to a plaza to see a client and to pick up a cheque, after which he was to return to the office. It was stated that one of the stores in the plaza was a client. The respondent further testified that the intent of the trip that day was for lunch, and to pick-up a cheque from a client of Firdos. [24] Put succinctly, there were dual purposes for KZ travelling at the time of the MVA, both personal and work-related. It was also confirmed that this was a regular task for KZ. As noted above, it was common for him to be driving, performing sales functions, delivering and collecting cheques. [25] This is also a circumstance that has been similarly dealt with in prior Tribunal decisions. I note below an excerpt from Decision No. 398/14 that cited the general approach of the Tribunal to lunch breaks, as well as exceptions for circumstances involving tasks incidental to a worker s employment. The Vice-Chair cited a further excerpt from Decision No. 1238/08, and stated in part: [22] It is also, I believe, not controversial that an individual working at a fixed workplace location, only traveling back and forth between home and work daily, without the need for overnight accommodations, would typically not be covered when on a lunch break. The reason for that is the worker is not, during lunch, typically under the control of his or her employer. See, in that regard, the discussion in Tribunal Decision No. 1238/08. That decision stated in part as follows: [21] The Tribunal s case law on lunch breaks has commonly found that a lunch break is a personal activity constituting a distinct departure from the employment. Case law has generally been consistent in finding that, where a worker has been based at his employer s premises and then leaves the premises for a lunch break, he ceases to be in the course of employment (see for example, Decisions No. 280/91, 597/87,817/87 and 2142/89). Decision No. 817/87 (August 28, 1987) offered the following rationale for that position, at page 8 of the decision, where the Panel stated that the worker s half-hour lunch break in that case: exposed [the worker] to a type of risk type different from and additional to that to which he would be normally exposed in the course of his work. [22] Similar reasoning was found in Decision No. 2142/99 (February 8, 2000), at paragraphs 35-36: A review of Tribunal cases dealing with workers injured while on a lunch break during the work day indicates that the general rule is that

Page: 6 Decision No. 1572/16 lunch is considered a personal activity, and not an employment-related activity. This is so even though the worker would not have been at lunch at the place of the injury but for employment. In general, workers who are on a lunch break during the working day are considered to be members of the general public, and subject to the general risks to which members of the general public are exposed (see, for example Decision No. 775/98 47 W.S.I.A.T.R. 185). In the same way, the general rule is that workers who are injured while travelling to and from employment are not covered even though they would not have been travelling (and thus not injured) but for the employment. The exception to these general rules is when the worker is doing something reasonably incidental to employment at the time of the accident. For example, a worker injured at lunch while driving a company-owned vehicle may be found to be in the course of employment, but only if the worker is engaged in an employment-related activity (see, for example Decision No. 833/95). A worker injured while at lunch may be covered if the worker was also engaged in a workrelated activity, such as banking or purchasing supplies needed for work (see for example Decision Nos. 823/96, 1/94) [emphasis added]. [26] I agree with the approach cited above, that generally a worker on a lunch break away from the control of the employer is not considered to be in the course of employment. However, I found the circumstances of this case to fall into the category of exceptional cases in which the worker was also performing a task reasonably incidental to employment. [27] It was evident in this case that KZ was travelling in a company owned vehicle for dual purposes when the accident in question occurred, both to go to lunch, and to perform a regular work task by picking up a cheque from a customer. It cannot be said that he was simply driving to and from lunch on personal time. Rather, he clearly had a work related purpose. [28] In that regard, this case can be distinguished from a number of cases that did not find workers to be in the course of employment, as they had simply been commuting to and from work, or were at lunch on purely personal time, or performing purely personal errands. Rather, it was evident in this case that the dual purpose of the worker s trip maintained a nexus with his employment. In my view, that nexus between the purpose of the trip and the respondent s employment is key, and is persuasive in this case that the respondent remained in the course of employment at the time of the MVA. (c) The Registration of the Respondent s employer [29] In this case, there was an issue raised by KZ as to the status of his employer at the time of the accident, and that it was not a registered Schedule 1 employer at the time. It was submitted that the failure of his employer to register was somehow a bar to claiming benefits, and thereby prevented an order barring his right to sue. [30] I noted in that regard that the status check memorandum performed by the Tribunal confirmed that both employers in this case were Schedule 1 employers. In regard to Firdos, the status check indicated a coverage start date of January 1, 2010, and that it has been inactive since December 31, 2012. Nevertheless, it was evidently registered at the time of the accident in question. That said, KZ submitted that the registration had occurred post-accident, and that it was not in place on the actual accident date. Put succinctly, it was claimed that the registration was backdated after the accident occurred for the purposes of collecting unpaid WSIB premiums.

Page: 7 Decision No. 1572/16 [31] It may be that the registration of Firdos occurred in the manner that was alleged by KZ, and that it was not in place at the time of the MVA. It was not clear from the file materials whether that allegation was true or not. However, whether they were registered or not, it is evident that they ought to have been reporting to the Board at that time. Put succinctly, even if there was backdating, the employer was obligated to report during the time period in question. [32] This issue has also been well addressed by the Tribunal. The alleged failure of Firdos to register with the Board does not render the respondent ineligible for benefits and does not bar a section 31 order. I note for example the following excerpt from Tribunal Decision No. 1240/14, which was also dealing with a right to sue application: [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-570-03 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. [33] It is not disputed in this case that Firdos was carrying out a business activity that ought to have been reported to the Board. And, in fact, Firdos was covered by the Board and registered as a Schedule 1 employer according to the status check noted above. Whether that registration occurred prior to, or after the MVA in question, is not relevant to this application. Rather, it is evident that KZ was a worker in the course of employment for a Schedule 1 employer at the time of the accident. He was entitled to claim benefits with the WSIB in that regard, and there is no bar to his claim for WSIB benefits, or to a section 31 order, on the basis of a failure to register or a backdated registration by the employer. [34] In conclusion, I find that the respondent in this case was a worker in the course of employment, when he was involved in an MVA with another worker in the course of his employment. In such circumstances, the respondent is entitled to claim benefits under the WSIA. I also find that there is no bar to such a claim for WSIB benefits or to an order pursuant to section 31 of the WSIA due to the alleged failure of the employer to have registered with the Board as a Schedule 1 employer. As such, the application is granted, and the respondent is barred pursuant to section 28 of the WSIA from pursuing the above noted civil action.

Page: 8 Decision No. 1572/16 DISPOSITION [35] The section 31 Application is allowed. [36] The Respondent was a worker entitled to claim benefits under the WSIA arising out of the motor vehicle accident on July 9, 2012. The Respondent is barred pursuant to section 28 of the WSIA from pursuing the above noted civil action. DATED: February 13, 2017 SIGNED: A.G. Baker