Mills ats. Spring

Counsel for Respondent: Antonio Meringolo (Plaintiff)
Counsel for Applicant: Gloria Shu (Defendant)
Case Name: Mills ats. Spring
Decision date: February 20, 2019

Full Decision

Section. 31 WSIA ‘Right to Sue’ Application – Fails to Knock Out MVA Claim

CONTEXTUAL HISTORY

On November 29, 2013, the Respondent was injured in a motor vehicle accident at 10:20 am while travelling W/B on County Road 21 in Innisfil, ON. The Applicant rear-ended his vehicle causing significant injury/impairment. A claim was issued on August 20, 2015. Thereafter examinations for discovery were completed on March 23, 2016. The matter proceeded to be set down for trial and was scheduled for a pre-trial with an aim to having the trial during the November 2017 sittings in Barrie. Shortly prior to the pre-trial, the Applicant brought an application pursuant to s. 31 of the WSIA seeking the jurisdiction of the WSIB to remove the Respondent’s ‘Right of Action’ claiming he was injured while at work, and during the course of his employment related job duties. The pre-trial was vacated and the matter stayed pending the outcome.       

The Applicant and the Respondent were both considered schedule 1 employee/employer pursuant to the WSIA as they were independent contractors in the construction industry, on the subject collision date. Schedule 1 employee’s cannot sue Schedule 1 employers pursuant to s. 26 of the WSIA. Despite the lack of a clearance certificate or payment of insurance premiums, coverage is mandatory for construction workers. WSIAT has sole jurisdiction to hear and decide such an application pursuant to s. 31 of the WSIA to make a jurisdictional determination on the Respondent’s Right of Action. The potential success of the Applicant would remove the Respondent’s Right to Sue and provide the Applicant with a straight forward path to Summary Judgment and costs on the civil MVA claim.         

ISSUES

  1. Whether the Respondent’s Right of Action is taken away pursuant to section 31 of the WSIA?

BRIEF ANSWER

The Applicant/Defendant failed to satisfy the Tribunal of the evidentiary burden in removing the Respondent/Plaintiff’s Right to Sue.    

ANALYSIS

At the outset of the Tribunal’s hearing, the Applicant brought a preliminary motion to dispense with viva voce evidence. The Applicant’s position was that the material facts were uncontested, the Respondent did not file an Affidavit in response in response to the application and that the issue could be decided on the proof of the Pleadings. The Respondent objected, taking the position that the denial of the right to call viva voce evidence would offend the principles of natural justice and procedural fairness, and that under the WSIA there is no requirement that the Respondent file an Affidavit in reply to the Application. Most importantly, the Applicant’s pleading’s did not plead reliance upon the WSIA, therefore the transcripts from the examination for discovery of the Respondent did not contain the material facts or evidentiary basis required to make a decision. On that basis, Vice-Chair R.E. Basa decided that viva voce evidence was required to decide the issues before her.

At [9-10] the Respondent drew R.E. Basa to the principle contained within Decision No.: 1460/02 and Decision No.: 755/02 in that while the WSIAT is not required to apply Board policy in Right to Sue applications, in order to maintain consistency of results between Appeals and Right to Sue Applications, Board policy ought to be considered relevant. R.E. Basa was then directed by the Respondent to Board policy OPM Document No.: 15-02-02 ‘Accident in the Course of Employment’ and OPM Document No.: 15-03-05 ‘Travelling. The Board Operational Manuel Policies provide directions that the WSIAT and WSIB will consider in making decisions.

On the merits, the Applicant submitted that the viva voce evidence of the Respondent was not credible as it was inconsistent with the evidence given at his previous Discovery. Further that the Tribunal prefer the evidence contained within the Discovery transcripts over the viva voce evidence given before me. The Applicant also submitted that Decision No.: 2631/16 is relevant as the Respondent’s role at work is similar to that of a PSW in not having fixed location of work, or a routine/schedule to comply with. Moreover, that self-employment requires the Respondent’s work day to start when he leaves his home and that his daily routine ought to be considered continuous employment. Importantly, the Applicant submits that the worker’s viva voce evidence before me that he was on his way to a coffee shop while waiting for a delivery of stone did not equate to a ‘deviation’ in routine to significantly remove him from the ‘course of employment’ requirement pursuant to OPM Document No.: 15-03-05 ‘Travelling’.

The Respondent submitted at [12] that the Applicant has not discharged the evidentiary burden to establish that Spring was in the ‘course of employment’ when the collision occurred. He submitted that Spring’s testimony establishes that he was on ‘personal time’ running a personal errand. Further, that travelling to work sites is not incidental to the worker’s specific employment requirements in operating an excavator. The Applicant relies upon Decision No.: 1651/14, Decision No.: 2212/13, and Board policy and asks that the Application be denied.

The application turned upon the viva voce evidence of the Respondent. R.E. Basa at [14] accepted the uncontroverted evidence of the Respondent before the Tribunal as credible and reliable. The subject matter upon which the Respondent was questioned at his Discovery did not directly relate to the issues before her on this Application. The evidence from the Discovery was of limited value in determining the issue. Counsel for the Respondent drew R.E. Basa to the fact that the line of questioning at the Discovery of the Respondent did not relate to the issue of whether the Respondent was in the ‘course of employment’ on the date of the subject collision.

With respect to the Applicant’s submissions regarding prior inconsistent statements, Counsel for the Respondent noted that the Applicant was not taken to the specific ‘alleged’ inconsistency in the Discovery transcript when being cross-examined and as such no impeachment occurred on the record. Further that a detailed review of the transcript reveals no specific detail or line of questioning upon which the application could be determined. This is in contrast to the viva vice evidence before the Tribunal, which R.E. Basa accepted in it’s entirety.

Lastly, Decision No.: 2631/16 to which the Applicant seeks to rely was determined to be of no use. The exceptional circumstances specific to that decision were correctly distinguished by Counsel for the Respondent on the present matter. The Applicant’s submissions overall did not sufficiently address OPM Document 15-03-05:

As a general rule, a worker is considered to be in the course of employment when the person reaches the employer’s premises/place of work, such as a construction site, and is not in the course of employment when the person leaves the premises or place of work.                                         

CONCLUSION The Application was denied, and the Respondent’s Right of Action was maintained.

Antonio Meringolo
Written by

Antonio is a litigator with Lemieux Law. His practice focuses on motor vehicle accidents, accident benefits, occupiers’ liability, personal injury, long-term disability, wrongful & constructive dismissal, CPP disability, human rights, general litigation and WSIA Appeals. When Antonio is not practicing law, he enjoys playing hockey, working on cars, and visiting family in southern Italy.