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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 842 16
8/15/2017
M. Crystal

  • Employer (sufficient connection to Ontario)
  • Out of province (substantial connection)
  • Right to sue
  • Worker (sufficient connection to Ontario)

The plaintiff in a civil case was the driver of a tractor-trailer. He was injured on September 27, 2013, in a motor vehicle accident with another tractor-trailer. The plaintiff brought the action against the other driver and the employer of the other driver. The defendants applied to determine whether the plaintiff's right of action was taken away. On the evidence, the plaintiff was a worker, rather than an independent operator, and he was in the course of employment at the time of the accident. The defendant driver was from Quebec. The defendant employer was a Quebec company. The issue was whether the defendant driver had a substantial connection to Ontario. The defendant company had multiple customers in Quebec and Ontario. About 95% of the routes travelled by the company's trucks were between Quebec and Ontario. The Vice-Chair was satisfied that the Quebec company had a substantial connection to Ontario and that it was a Schedule 1 employer for the purposes of this application. The defendant driver had been hired as a truck driver by the Quebec company on September 16, 2013. He was in the course of employment at the time of the accident. This was his fourth trip for the company. All of the trips were between Quebec and Ontario. The accident occurred in Ontario, not far from the border with Quebec. Board policy on non-resident workers provides that, generally, a worker with five or fewer days in a year does not have a substantial connection to Ontario, a worker with six to 10 days may have a substantial connection depending on the surrounding circumstances, and a worker with 11 or more days usually has a substantial connection. The policy also notes that each case must be decided on its own merits. In this case, the defendant driver had been working for the employer for 11 days at the time of the accident, although he probably worked in Ontario for less than the 11 days specified in the Board policy. However, the Vice-Chair noted that all of the defendant's driving assignments involved travel to Ontario. Considering the Board policy and the circumstances of the case, the Vice-Chair concluded that the defendant driver had a substantial connection to Ontario. The plaintiff's right of action was taken away.