Written on behalf of Peter McSherry

In employment law, the term “employee” can have several different meanings. In fact, that word is defined differently in each piece of legislation governing a person’s entitlement to various benefits and payment, including workers’ compensation law. In Ontario, workers’ compensation is governed by the Workplace Safety and Insurance, which outlines when a person will be considered to be entitled to receive workers’ compensation benefits. One of the stipulations contained within that legislation indicates that persons are only entitled to receive workers’ compensation benefits if they suffered an injury while acting as an employee in the ordinary course of business. This begs the question – when is an employee not an “employee”?

Employee seriously injured in motor vehicle accident

The recent decision of Interpaving Limited v Workplace Safety and Insurance Appeals Tribunal provides guidance on determining when an employee is, or is not, considered an employee for the purposes of workers’ compensation. The case involved a road crew foreman (“Vaughan”), who worked for the appellant (“Interpaving Limited”). On September 15, 2015, Vaughan, who was operating a company-owned vehicle with two passengers, both of whom were members of the road crew, crashed the vehicle.

The accident was serious and caused Vaughan to become a paraplegic. Importantly, Vaughan was found to have had a blood alcohol level that exceeded the legal limit at the time of the accident. As a result, criminal charges were laid against Vaughan, who eventually pleaded guilty to driving while impaired.

An “Employee” is a Person “in the course of employment”

Due to the injuries he suffered as a result of the accident, Vaughan applied for, and began receiving, workers’ compensation benefits. In granting him such benefits, the Workplace Safety and Insurance Board Eligibility Adjudicator determined that Vaughan should receive such benefits because he had been “in the course of his employment” at the time of the accident. In other words, Vaughan was operating a company vehicle that he was required to drive as part of his duties of employment, the vehicle was carrying co-workers as passengers, and the vehicle was used to travel to and from the work site.

Interpaving Limited, the employer, unsuccessfully sought reconsideration of that decision, and then appealed, again unsuccessfully, to an Appeals Resolution Officer. A further appeal was made to the Workplace Safety and Insurance Appeals Tribunal (the “Tribunal”) which, in April of 2022, upheld Vaughan’s entitlement to benefits. Interpaving Limited subsequently commenced this application for judicial review of that decision, asking the Court to review the decision made by the Workers’ Compensation Tribunal.

Grounds for Appeal

Interpaving Limited contended that the decision to award Vaughan benefits on the basis that he was an employee was unreasonable for three reasons, specifically:

1. that Vaughan had not been “in the course of his employment” when he was driving home on the day of the accident;
2. that it was unreasonable to find Vaughan had been “in the course of his employment”, given that he had been highly intoxicated before the accident occurred, and;
3. that the workers’ compensation Tribunal had misinterpreted the legislation governing the circumstances in which an employee is entitled to benefits when their own wilful and serious misconduct is the sole cause of their injuries.

When is an Employee Acting “in the course of employment”?

The Court noted at the outset that, according to all applicable documentation and legislation, a worker in Ontario is considered to be “in the course of employment” if they are required to drive to and from work for the purpose of their job. In this case, Vaughan had been provided a company vehicle and used it to transport himself and several of his crew members to and from various worksites. Additionally, Vaughan stored various tools and assorted employer-owned materials in the work vehicle. For these reasons, and largely because Interpaving Limited had made it a condition of Vaughan’s employment that he use the vehicle for work-related travel purposes, the Court was satisfied that Vaughan had been “in the course of employment” on the day of the accident.

This, however, resulted in a secondary question, specifically whether it was unreasonable for the Tribunal to have concluded that Vaughan was in the course of his employment at the time of the accident, given that he had consumed beer to the point of severe intoxication before causing the accident? In other words, did Vaughan’s decision to become intoxicated sever the nexus of employment? The Court rejected the employer’s argument on this point as well. Instead, the Court found that the Tribunal had reasonably concluded that Vaughan had indeed been acting in the course of his employment in doing so, as he had been using a company-assigned vehicle to transport two coworkers from a mutual job site at the end of the work day.

Court Dismisses Employer’s Appeal

Interpaving Limited’s final argument was that the Tribunal had misinterpreted section 17 of the Workplace Safety and Insurance Act. This section provides that “if an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker’s death or serious impairment.”

The Tribunal had concluded that in fact Vaughan was solely at fault for the accident, and that it was his serious and wilful misconduct in driving while impaired that was responsible for the accident. However, it also concluded that the paraplegia from which Vaughan suffered as a result of the accident constituted a serious impairment. As such, Vaughan was still entitled to receive compensation for his injuries. The Tribunal had noted that, in interpreting section 17, it was important to bear in mind the “no-fault nature of the workers’ compensation scheme.”

The Court dismissed Interpaving Limited’s appeal and the original decision of the Tribunal was allowed to stand.

Contact Guelph Employment Lawyer Peter McSherry for Advice on Employment Benefit Entitlement

If you are looking for more information regarding your entitlement to employment benefits, you are not alone. From workers’ compensation to Canada Pension Plan, the laws and tribunals can be confusing and overwhelming. Fortunately, at the Peter A. McSherry Employment Lawyer, our employment law team is experienced in dealing with various employment-related benefits, including but not limited to workers’ compensation, Canada Pension Plan, and Employment Insurance benefits. Contact us today online or by telephone at 519-821-5465 to arrange a consultation and learn how we can assist you.