Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Worker defined – In and out of the course of employment – Personal time; Judicial review – Standard of review – Reasonableness
The bulk of the analysis in this judicial review decision addresses the question of whether the activity of driving back to a job site after lunch in the circumstances of this case was “reasonably incidental to the worker’s employment” or whether it was a “distinct departure on a personal errand”.
 O.J. No. 6154
2016 ONSC 7259
Ontario Superior Court of Justice – Divisional Court
November 21, 2016
J.A. Thorburn, W.U. Tausendfreund and R.J. Harper JJ.
On November 10, 2010, the Applicant was doing construction work at a remote location and had gone to lunch at a nearby restaurant. The Applicant was driven to and from the restaurant from the work location by a fellow co-worker. After eating lunch, the Applicant and co-worker headed back to work and were involved in a car accident.
Under s. 28 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16 (the “Act”), a worker is not entitled to commence an action against a co-worker or his/her employer in respect of the worker’s injury or disease only if the workers were acting in the course of their employment at the time of the accident. Additionally, the WSIB Operational Policies: Accident in the Course of Employment, 2004, provides:
“If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.”
The WSIAT decision concluded that at the time of the accident, “there is no question…that while they were on the lunch break, and travelling to and from the restaurant, the individuals were not in the course of their employment.” However, the WSIAT also found that at the time of the accident, the Applicant was involved in an activity that was “reasonably incidental” to his employment. Accordingly, the WSIAT found that the Applicant: (i) was entitled to statutory accident benefits pursuant to the Ontario Insurance Act, R.S.O. 1990, c. 18, but; (ii) was not permitted to commence a legal action against his employer or co-worker pursuant to s. 28 of the Act. The Applicant initiated a judicial review.
The parties agreed that the standard of review in the matter is reasonableness.
The Applicant’s central claim was that the WSIAT made two inconsistent statements: that the Applicant was not acting in the course of his employment at the time of the accident, and a contradictory analysis and conclusion in the reasons of the decision that at the time of the accident, the Applicant’s activities were reasonably incidental to his employment and therefore was entitled to claim WSIB benefits but had no right to sue.
A secondary claim was that there were two findings of fact for which there was no evidence; the Court disagreed but indicated alternatively that even if there were errors of fact, they did not play a determinative role in the WSIAT decision.
The Court noted the decisions the WSIAT relied on in reaching its conclusion. The Court also cited the usual principles including: (i) a very high level of deference is to be afforded to WSIAT decisions; (ii) a court will only interfere where there is no evidence in support of a finding of fact or if there are no lines of reasoning that would support the decision pursuant to Dunsmuir.
The Court concluded that while the WSIAT decision contained a finding that is inconsistent with its analysis and conclusion, the decision as a whole showed a clear line of reasoning supporting the decision, and evidence that justifies the conclusion. Moreover, the Court found that the decision fell within a range of possible, acceptable outcomes which are defensible in respect of both the facts and the law. For these reasons, the Court dismissed the application.
This case was digested by Lindsay R. Johnston of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact her directly at firstname.lastname@example.org or review her biography at http://www.harpergrey.com.