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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 2148 15
10/20/2015
T. Mitchinson

  • Right to sue
  • Worker (learner)

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away.
The plaintiff attended a job interview with the defendant employer for a position as a saw operator in the defendant's quarry. After discussing the position and reviewing the plaintiff's resume, the employer's supervisor took the plaintiff to the quarry to observe the actual job duties. The plaintiff suffered an injury while in the quarry.
The definition of a worker in s. 2(1) of the WSIA includes a learner. A learner is defined in s. 2(1) as a person, who although not under a contract or service or apprenticeship, becomes subject to the hazards of an industry for the purpose of undergoing training or probationary work. The issue in this case was whether the plaintiff was a learner within the definition of a worker.
The plaintiff clearly became subject to the hazards of the industry.
The Vice-Chair found that the plaintiff was not performing probationary work. Definitions of probation indicate that the term would reasonably be intended to apply to activities undertaken by an individual who has already been employed. The plaintiff had not been hired or even offered a job. He was not in the quarry shop for the purpose of probationary work.
The Vice-Chair also found that the plaintiff was not in the quarry for the purpose of undergoing training. The plaintiff and the supervisor appeared to agree that the plaintiff needed to get a better understanding of what the job entailed before proceeding any further. The plaintiff was not expected to undertake or participate in any job duties, nor was the period of observation intended to equip the plaintiff with the skills necessary to operate the saw. Such training would follow only if an employment relationship were put in place.
The plaintiff was not a learner at the time of the accident and, accordingly, did not come within the definition of a worker under the WSIA. The plaintiff's right of action was not taken away.