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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1034 15
2/17/2016
B. Kalvin

  • Corporation (piercing corporate veil)
  • Dependants
  • Independent operator
  • Right to sue
  • Worker (test)

A farm service company sent a chicken-catching crew to a farm. One of the crew died when he was crushed under the wheels of a truck at the farm. The family members of the deceased crew member brought an action against the farm, the farm service company and the person who was driving the truck. The defendants applied to determine whether the plaintiffs' right of action was taken away.
The issues related to the worker status of the crew member and the person driving the truck and the dependency status of the family members.
The deceased crew member was a worker of the farm service company. He had no chance of profit or loss. Even if catchers were able to increase their pay by catching more birds, this did not constitute a chance of profit. Working more hours or catching more chickens is not a chance of profit. It was more in the nature of a small bonus for good work. A chance of increased profits should involve entrepreneurial judgement.
The person driving the truck was a supervisor for the farm service company. Like the catchers, he did not have a chance of profit or loss. He had set up a numbered company to receive his wages, but setting up a corporation at the request or direction of an employer, or to satisfy an industry standard, is not persuasive evidence of independent operator status. The driver of the truck was a worker of the farm service company.
It was contrary to company policy for workers of the farm service company to move the truck. However, evidence established that it was common practice for them to move the vehicles that were being loaded. The supervisor was in the course of employment.
The plaintiffs were the wife, child, mother and aunt of the deceased. The right of action of the wife and child was taken away by s. 27(2) of the WSIA. The statement of claim stated that the mother and aunt were economically dependent on the deceased. No evidence was produced at the hearing regarding the mother and aunt. Presuming the allegations in the statement of claim to be true, the Vice-Chair found that the mother and aunt were dependants of the deceased for purposes of the WSIA. Accordingly, their right of action was also taken away.