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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 2256 15
10/27/2015
B. Kalvin

  • In the course of employment (distinct departure test)
  • In the course of employment (lunch)
  • In the course of employment (travelling)
  • Right to sue

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away. The issue was whether the plaintiff was in the course of employment at the time of a motor vehicle accident.
The plaintiff was a field technician for a company that provided soil engineering studies for construction contractors. The plaintiff's duties required that he travel to various construction sites to conduct tests.
On the day of the accident, the plaintiff arrived at his employer's premises at 6:30 am, as usual. He loaded tools into his vehicle, an activity that took about 15 minutes and for which he was paid. He remained at the employer's premises until 7:30 am, reading the paper and checking personal email, for which he was not paid. He was instructed to be at the test site, a distance of about 25 kilometres, at 8:30 am. He was involved in the accident while on his way to a restaurant for breakfast before heading to the test site. He was paid for 30 minutes of travel time and for gas.
The plaintiff was in the course of employment when he arrived at the employer's premises at 6:30 am. The Vice-Chair was of the view that the plaintiff did not periodically drift in and out of employment between the time he arrived at the employer's premises and the time of the accident. He continued to be in the course of employment when he left the employer's premises at 7:30 am and at the time of the accident at 7:40 am. The slight detour to get something to eat did not negate the overarching work-related purpose behind his activity at the time of the accident.
The Vice-Chair noted Board policy which provides that a worker is considered to be in the course of employment when conditions of employment require that the worker travel away from the employer's premises except when there is a distinct departure on a personal errand. Tribunal decisions have consistently held that, when a worker is required to travel away from a fixed work site, stopping for a meal does not constitute a distinct departure on a personal errand. Rather, it is an intrinsic part of the duties of a worker who has to travel to a remote location. The Vice-Chair distinguished a number of other Tribunal decisions which found that workers injured on lunch or other breaks were not in the course of employment; those decisions generally do not deal with workers who were required to travel away from their employers' premises to remote work sites.
The plaintiff was in the course of employment at the time of the motor vehicle accident. His right of action was taken away.