- Employer (sole proprietorship)
- In the course of employment (personal activity)
- In the course of employment (proceeding to and from work)
- In the course of employment (travelling)
This right to sue application concerned a civil action commenced by the respondent for personal injuries sustained on October 9, 2018. The respondent was the owner and operator of the motor vehicle that was rear ended by the defendant in the chain collision. The applicants sought an order that the respondent was entitled to claim benefits under the WSIA and that her right of action was taken away pursuant to section 28(1) of the WSIA.
The application was granted. The respondent's right of action was taken away.Section 12.2(1) of the Act provides that "every sole proprietor carrying on business in construction" shall be "deemed to be [a worker] to whom the insurance plan applies." Further, section 12.2(2) provides that where a person is deemed to be a worker under section 12.2(1), "the…sole proprietor… is deemed to be the employer for the purposes of the insurance plan". At all the material times, the respondent was carrying on business as a sole proprietor in construction. The respondent was a worker of a schedule 1 employer. Based on the respondent's testimony, the Vice-Chair found that the respondent was required to travel away from her home office as a condition of her employment. As a painter, the respondent would be required to travel from her home office to various job sites and did not have a fixed workplace. OPM Document No. 15-03-05 establishes that where an individual is required to travel away from the employer's premises, the travel away from the employer's premises is no longer considered commuting to work. Rather, it is considered as "travel on employer's business," and workers, while travelling, are considered to be in the course of employment continuously unless a distinct departure on a personal errand takes place enroute.Under the heading "Travel on employer's business", a worker is considered to be in the course of employment continuously except when a distinct departure on a personal errand is shown. The terms of the policy make it unnecessary to consider the method of travel, as this section of the policy includes travel by public transportation or by vehicle. It was noted that Tribunal decisions have generally held that a stop for coffee or a similar incidental "fast food" stop does not constitute a distinct departure on a personal errand (see Decision No. 1999/18). The Vice-Chair also clarified that the policy makes no reference to remuneration (paid mileage) as an express consideration in determining whether a person is in the course of employment. Evidence about a person's remuneration may be helpful in determining whether a "distinct departure on a personal errand" has occurred, but it is not determinative (see Decision No. 83/19). It was concluded the respondent was a worker in the course of her employment at the time of the MVA.