- Independent operator (truck driver)
- Right to sue (motor vehicle insurance)
- Worker (contract of service)
The issue in this application was whether the plaintiff's right of action was taken away pursuant to section 31 of the WSIA. The plaintiff had been operating a truck belonging to the defendant company when the vehicle veered off a highway ramp and rolled over. The plaintiff suffered personal injuries in the accident.
The application was granted. The plaintiff's right of action was taken away. It was noted that the respondents had filed a motion to add defendants to the civil action. The Vice-Chair found that the status of the proposed defendants did not constitute a valid reason to not determine the present application. The Vice-Chair did not have jurisdiction to consider the status of the proposed defendants as there was no existing civil action against them. They were not a "party to an action" and could not apply for a determination under section 31(1)(a). In Decision No. 2458/16, the applicants had not been sued in the civil proceeding, but the plaintiffs had "put the co-applicants on notice of his client's intention to prosecute a claim for damages..." Decision No. 2458/16 found that there was no jurisdiction to consider the section 31 application of the applicants against whom no civil action had been commenced. The Vice-Chair ultimately found that the plaintiff was a worker in a "contract of service" with the defendant company. It was noted that the plaintiff had no opportunity for profit or risk of loss; there was no "entrepreneurship" involved. The plaintiff did not own the essential tools of the trade - the essential tool being the truck. The plaintiff did not have a significant degree of freedom - he could not choose to perform his tasks at a later date or time. However, the manner in which the plaintiff was paid was consistent with being an independent operator. The worker was also not provided with any training of significance and held the equivalent of an AZ license - which were factors associated with being an independent operator. The Vice-Chair accepted the plaintiff's testimony that it was his intention to be an independent operator and that he considered himself to be one. The plaintiff did not anticipate a long-term relationship and had planned to work only for a short period of time. The Vice-Chair did not find that there was a clear common intention as to the nature of the relationship between the plaintiff and the defendant. The plaintiff was found to be a worker because the factual elements which are associated with a "contract of service" rested at the core of his relationship with the defendant company, a schedule 1 employer. The plaintiff was also in the course of employment at the time of the accident. The Vice-Chair noted that not having a specific destination provided by the defendant company at the time of the accident did not remove the employment nexus.