- Right to sue (statutory accident benefits)
- Worker (test) (business reality)
- Independent operator (contract for service)
This right to sue application was related to a motor vehicle accident that occurred on October 18, 2016 between the defendant (applicant) and plaintiff (respondent) in the civil action. The defendant was operating a dump truck at the time of the accident. The respondent was operating her own personal vehicle, a minivan, at the time of the accident. The respondent had been providing transportation for students to school, with this service provided to the school boards through brokers. This application turned on whether the respondent was a "worker" or an "independent operator" within the meaning of the WSIA.
The application was dismissed. The Vice-Chair found that the respondent was an independent operator at the time of the motor vehicle accident. Accordingly, her action against the applicants was not statue barred by the WSIA. At the outset, the Vice-Chair noted there was a clear intention of the parties "to treat each other as contractual partners in an interdependent relationship where each party had clearly defined roles and each party achieved clear benefits" (see Decision No. 522/19). The Vice-Chair also considered the business reality test in making this decision. It was found that the vast majority of factors outlined in this decision were consistent with an independent operator as set out in OPM Document No. 12-02-01, "Independent Operator."The Vice-Chair also determined that the respondent was not likely precluded from driving for another broker and for another school board, and thus, the non-competition clause in question did not support that the respondent was a worker within the meaning of the WSIA. It was also accepted that the respondent was required to comply with a documentary "Standards of Performance" along with other rules, such as the Education Act and the Education Amendment Act (Keeping our Kids Safe at School) - Bill 157, as referenced in the "Standards of Performance." It was noted that the respondent provided services in a highly regulated field. Thus, the standards did not reflect a degree of control over the respondent, rather a reflection of the industry which is governed by such regulations, and thus, the needs and requirements of the brokers' clients. In addition, this work involved transporting minors away from their guardians. Accordingly, the request for drivers to retain photo identification, vehicle decals, and provide a criminal background check was indicative of the nature of the assignment. It did not establish that the brokers exhibited a high degree of control over the respondent, as these requirements were directly related to the nature of the work.