Fridays with Rogers Partners

At our weekly meeting, Itai Gibli discussed the recent decision of the Superior Court of Justice in Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 5162, which was an application for judicial review of the Workplace Safety and Insurance Appeals Tribunal’s decision in Decision No. 852/19.

Before examining the decision in Interpaving, we have reviewed Decision No. 852/19, which wasan employer’s appeal of an earlier Workplace Safety and Insurance Board decision to grant a worker initial entitlement to benefits for injuries.

Facts

On September 15, 2015, an Interpaving Limited (“Interpaving”) road crew foreman, “JV”, was finishing a shift on a highway paving project. Around 7:00pm, JV drove himself, and two other employees in an Interpaving owned pick-up truck, home from the worksite. This was apparently done pursuant to a cost-saving car-pool arrangement with Interpaving.

JV drove the truck intoxicated. He came upon a construction site on the highway which had created some traffic in front of him. He failed to slow down in time and swerved off the road, crashing the truck in a ditch. Both empty and unopened beer cans were found at the scene. Police arrived soon after and administered a blood test, revealing JV with a 120-150 mg blood alcohol level, well over the legal limit.

JV injured his spine in the accident and was left paraplegic.

Decision No. 852/19 – Law

The WSIB found JV had suffered a compensable workplace accident and approved his entitlement to various benefits. The employer disputed this finding at the WSIAT.

The WSIB approved benefits pursuant to s.13(1) of the Workplace Safety and Insurance Act, (“WSIA”), which states “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”.

Interpaving argued that JV was not in the course of his employment during the accident.

Work-Relatedness Test

The WSIB considered the “work-relatedness test” outlined in OPM Document No. 15-02-02, which states that a personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate the accident was work related.

Place depends on whether the worker has a fixed workplace. Generally a personal injury by accident occurring on the work premises will have occurred in the course of employment. If the workplace is more fluid, a personal injury by accident generally occurs if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.

Time depends on whether the worker has fixed hours. A personal injury by accident generally occurs in the course of employment if it occurred during those fixed work hours or during a reasonable period before starting or after finishing work. If the work hours are more fluid, the criteria of place and activity are applied to determine whether the personal injury occurred in the course of employment.

Activity depends on what the employee was doing during the accident. If the worker was engaged in work-related duties or an activity reasonably incidental to the employment, the injury generally will have occurred in the course of employment. If the worker was engaged in a personal activity during the accident, the worker is more likely engaged in an activity incidental to employment. However, engaging in a brief interlude of personal activity does not always break the employment nexus.

Particularly relevant in this case was OPM Document NO. 15-03-05, a special policy on traveling that must be considered in conjunction with the work-relatedness test.

When the conditions of the employment require the worker to travel away from the employer’s premises/workplace, 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 WSIB found that the accident did arise out of the course of the worker’s employment. Firstly, JV was required to drive the company vehicle to and from the worksite for the purposes of his employment. Second, he was being paid to drive the company vehicle when the accident occurred. The WSIB accepted that an informal arrangement existed between JV and the company to drive two other workers to his home after work, where one was temporarily staying and the other would use as a drop-off point. This driving activity was an employment duty.

The WSIB highlighted s.17 of the WSIA, whichstates that if an injury is attributable to the serious and willful misconduct of the worker, no benefits shall be provided unless the injury results in the worker’s death or serious impairment. Since JV was rendered quadriplegic as a result of the accident, his case met the serious impairment exception. Thus, he was entitled to benefits, despite the fact that the WSIB found the accident was solely attributable to his serious and willful misconduct.

Employer Appeal Denied

Interpaving appealed to the WSIAT. Interpaving submitted that JV stopped on the car-pool route to purchase the alcohol found at the scene of the accident. By doing so, it argued the JV took himself outside the scope of his employment duties. However, while multiple LCBO’s along the route had camera footage of men in safety vests and black hats purchasing beer, none could directly identify JV as the purchaser.

There was also other evidence suggesting that based on the time JV left the site and the time of the accident, there would not have been an opportunity to stop to buy beer. Ultimately the WSIB and WSIAT found that JV did not make any stops between leaving the worksite and the accident.

The WSIAT emphasized that the WSIA is a no-fault compensation scheme. As such, it concluded that WSIA s.17 clearly contemplates that a worker who commits an act of serious and willful misconduct may still be considered to be in the course of employment. This was apparent from the plain language of the provision. The case law generally demonstrated that a worker’s conduct must be egregious in nature of break the employment nexus.

To The ONSC

Interpaving appealed the WSIAT decision. It argued the decision was unreasonable for three reasons.

First, it claimed it was unreasonable to conclude JV was in the course of his employment when the accident occurred. However, the ONSC held that Interpaving was seeking to relitigate the facts of the case, which had already established the evidence that JV was in the course of his employment.

Secondly and similarly, it claimed it was unreasonable to conclude that JV was in the course of his employment despite evidence that he embarked on a personal errand and drank alcohol which severed the employment nexus. Again, the ONSC rejected this and reminded that it would not relitigate previously established evidence. The ONSC also cited Decision No. 625/17, which held that “drinking, in and of itself, is not sufficient for a panel to conclude that a worker’s accident did not arise out of and in the course of his employment”, and that the circumstances surrounding the drinking and accident must be considered.

Thirdly, Interpaving argued that s.17 of the WSIA did not contemplate conferring benefits to a drunk driver in this case as it would be socially and morally repugnant and offend the spirit of the Act. However, the ONSC pointed to Decision No. 696/96 for the proposition that finding a worker is outside the course of their employment due to serious and willful misconduct, would defeat the purpose of the section which specifically states workers with serious injuries are to be compensated regardless of their actions.

The ONSC accordingly rejected this argument as having no basis in s.17 of the Act. It pointed out that the WSIA is a no-fault compensation scheme. Employers are entitled to immunity from civil suit regardless of fault, and conversely a workers benefit entitlement is not necessarily precluded where the worker is at fault. This is often referred to as “the historic trade-off”.

Thus, even negligent, reckless, or criminal conduct would not necessarily fall outside s.17. The only exception, the ONSC noted, is where the conduct demonstrates malign intent or an intention to harm themselves or others. Here, the ONSC concluded that JV did not intend to harm himself or his passengers by driving drunk.

Ultimately the ONSC concluded that the WSIAT was not unreasonable in granting benefits to JV.

Takeaways:

1. To determine whether a worker who sustains a personal injury by accident arising out of and in the course of their employment, the WSIAT will apply the Work-Relatedness Test factors of place, time, and activity.
2. To forfeit the protection awarded under s.17 of the WSIA, the worker’s conduct must be egregious in nature. Conduct that is reckless, negligent, or even criminal, does not in itself, break the employment nexus.
3. Drinking alcohol, in and of itself, does not necessarily lead to the conclusion that the worker’s accident did not arise out of and in the course of employment. The circumstances surrounding the drinking and accident must be considered.
4. The WSIA is a no-fault compensation scheme. This reflects the “historic trade-off”, namely that workers hurt in the course of their employment are entitled to benefits under the statute regardless of fault, and in return, workers give up any right to sue their employers.