COURT FILE NO.: 313/09
DATE: 20091221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Jennings, Lederman and SWINTON JJ.
B E T W E E N:
WINDSOR UTILITIES COMMISSION
Applicant
- and -
JOVAN SKARA and WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
Andrew Roman and Nafisah Chowdhury, for the Applicant
David Wilken, for Jovan Skara
Brad Elberg and Kelly Henriques, for the Workplace Safety and Insurance Appeals Tribunal
HEARD at Toronto: December 14, 2009
SWINTON J.:
Overview
[1] Windsor Utilities Commission (“the employer”) seeks judicial review of a decision of the Workplace Insurance and Appeals Tribunal (“the Appeals Tribunal”) dated June 23, 2008 allowing the appeal of Jovan Skara (“the worker”) and awarding him compensation for a work-related accident. The employer also seeks judicial review of the Appeals Tribunal’s decision dated January 26, 2009 rejecting its application for reconsideration.
Background Facts
[2] The worker had been employed since 1990 as a backhoe operator in the employer’s public utility department. He normally worked Monday to Friday from 7:30 AM to 3:30 PM.
[3] On Friday, January 17, 2003, the worker was on vacation when he received a telephone call at approximately 9:00 PM from his supervisor asking him to come to work on an overtime basis to help fix a broken water main at a residence.
[4] The worker agreed and drove to the employer’s yard, where he picked up a backhoe. He then went to the residence with the broken water main and worked to repair the problem. He returned the backhoe to the employer’s yard around 2:00 AM on January 18, and then he proceeded to drive home. Unfortunately, while he was driving, he fell asleep briefly and went off the road. He was seriously injured and off work for several months.
[5] His application for workers’ compensation benefits was denied by the Claims Adjudicator and the Board’s Appeal Branch on the basis that he was not injured in the course of his employment.
The Statutory Context
[6] Pursuant to s. 118 of the Act, the Board has the exclusive jurisdiction to determine questions arising under the Act, including the issue whether an accident arose out of and in the course of employment.
[7] An appeal lies to the Appeals Tribunal, which has exclusive jurisdiction to determine appeals with respect to entitlement to benefits (s. 123(1)). Pursuant to s. 126(1), where there is an applicable Board policy with respect to the subject matter of an appeal, the Appeals Tribunal must apply the policy when making its decision. If the Appeals Tribunal concludes that a Board policy of which it is notified “is inconsistent with, or not authorized by, the Act or does not apply to the case”, the Appeals Tribunal shall not make a decision until it has referred the policy to the Board for review (s. 126(4)). The Board has 60 days to issue a written direction, with reasons, as to whether the policy is inconsistent with or not authorized by the Act or does not apply (s. 126(6) through (8)).
[8] At issue in this case was the application of Board Policy No. 15-03-05, entitled “Travelling”. This policy provides that as a general rule, a worker is not in the course of employment once he or she leaves the employer’s premises or the place of work. However, the policy sets out certain exceptions, including one for emergency calls. It states, in part,
Workers travelling to answer an emergency call from the employer, requiring immediate action on the worker’s part, are in the course of their employment.
When a worker answers an employer’s emergency call, coverage under the Act begins from the time the worker receives the call and “while travelling by reasonable and direct route to the employer’s premises or worksite” and while travelling on the return trip to the worker’s property or to the point of departure.
The Decision of the Appeals Tribunal
[9] The Appeals Tribunal applied the Board policy, asking whether the worker had been responding to an emergency call. It applied Tribunal jurisprudence regarding the factors to be taken into account when determining if there is an “emergency”. These factors include the nature of the workplace, the terms of any applicable collective agreement, the plain meaning of the word “emergency”, the urgency of the response required to address the situation, whether the accident occurred outside the worker’s normal work hours, the real prospect of loss to the employer if the situation is not addressed in a timely fashion, and the directness of the worker’s route to and from the workplace.
[10] The Appeals Tribunal then made a finding that the worker was responding to an emergency when he was called to repair the broken water main. Therefore, the worker was acting in the course of his employment when he was injured on the drive home and entitled to benefits under the Act.
[11] The Tribunal rejected the employer’s request to reconsider the decision because the employer did not meet the threshold test for reconsideration: the employer had failed to show there was any defect in the original decision that would be significant enough to warrant re-opening the matter.
[12] The employer never challenged the consistency of the Travelling Policy with the Act, either at the first appeal hearing or in the request for reconsideration. Indeed, the transcript of the first hearing contains the following statement from the employer’s counsel,
No, I would just agree that I think the specific issue is in the Policy 15.03.05 and that’s whether or not this was an emergency call and he was responding; that’s the specific issue.
The Issues
[13] The employer submits that the Appeals Tribunal made jurisdictional errors: by applying the Travelling Policy without considering whether it was inconsistent with the Act, as required by s. 126(4), and by finding that the worker was injured in the course of his employment. As well, the decision is said to be unreasonable because it extends workers’ compensation benefits to someone injured on the drive home from the employer’s premises – that is, while he was no longer in the course of his employment.
Analysis
[14] The standard of review of the Appeal Tribunal’s decisions determining entitlement to benefits is reasonableness (Rodriguez v. Ontario (Workplace Insurance and Appeals Tribunal) (2008), 2008 ONCA 719, 92 O.R. (3d) 757 (C.A.) at para. 22). In determining whether the worker was injured in the course of his employment, the Appeals Tribunal was acting within its jurisdiction, and therefore, its decision is deserving of deference.
[15] In coming to its decision, the Appeals Tribunal was required by s. 126(1) of the Act to apply the Board’s Travelling Policy. While the employer argues that the Appeals Tribunal improperly fettered its discretion in relying on the policy, I disagree. Pursuant to the Act, it had to apply that policy, unless it concluded, pursuant to s. 126(4), that the policy was not applicable or the policy was inconsistent with or unauthorized by the Act. If this were the case, the Appeals Tribunal would be required to refer the policy to the Board.
[16] Here, the Appeals Tribunal concluded that the policy did apply. The Vice-chair considered the evidence and applied prior jurisprudence in determining whether the worker was responding to an emergency. He gave clear reasons explaining why he came to the conclusion that there was an emergency callout, including the facts the worker was called while on vacation, and there was a broken water main that had caused some property damage and was creating a potential danger for the public because of the winter conditions. He also examined the language of the collective agreement and reasonably concluded that it did not provide a clear answer as to whether there was an emergency.
[17] Because the worker was injured while returning home from emergency work, the Appeals Tribunal concluded, in accordance with the Board policy, that he had been injured in the course of his employment. The conclusion that the Board policy applied was within the range of reasonable outcomes, given his findings.
[18] The employer argues that the application of this policy could lead to absurd results, allowing a worker to claim benefits even if he went on vacation on the way home from work and then was injured during that vacation.
[19] That is not the situation in this case. According to the evidence, the worker was returning to his home by the most reasonable and direct route (Reasons, para. 18). Therefore, he fell squarely within the policy once the Tribunal found that he had been responding to an emergency.
[20] Moreover, there is no indication in the Tribunal’s decision that it would apply the policy to the hypothetical facts suggested by the employer. On a reasonable interpretation of the language of the policy, it would not apply to the employer’s example. Indeed, one of the factors listed in the Tribunal jurisprudence concerning what is emergency work is the directness of the worker’s route to and from the emergency worksite.
[21] The employer also argues that the Appeals Tribunal erred in not finding that the policy was inconsistent with the Act, and that the worker was not in the course of his employment when injured, because according to common law principles of master and servant law, a worker is not in the course of employment once he or she has left the employer’s premises and is no longer under the control of the employer (Dallas v. Hinton, 1938 SCC 19, [1938] S.C.R. 244 at 249).
[22] At the hearing, the employer made no argument that the policy was inconsistent with the Act. Therefore, I see no error on the part of the Appeals Tribunal because it did not address s. 126(4) of the Act.
[23] In any event, the policy is an interpretation of the Act dealing with accidents arising out of and in the course of employment in the context of a workers’ compensation scheme. The determination of whether an accident arises out of or in the course of employment turns on the words and purpose of the Act, and does not require a slavish application of master and servant law or the law relating to vicarious liability. Indeed, the Tribunal, in Ford Motor Credit Corp. v. Kuruliak, Decision No. 832/92, rejected a control test as determinative of when a worker is in the course of employment (at p. 6):
While control may be an element of some significance in a number of circumstances, the determination of the worker’s employment status at the time of the accident must take into consideration a number of other factors more attuned to the tradeoff between the worker and the employer, and this includes determining such key issues as how incidental the activity was to the employment, what benefits accrued to the employer, whether the worker was there due to employment or personal considerations, to name a few.
Conclusion
[24] In my view, both the initial and reconsideration decisions of the Appeals Tribunal were reasonable and within its jurisdiction. Therefore, the application for judicial review is dismissed.
[25] The employer also brought a motion seeking an order that the Appeals Tribunal be barred from launching a further appeal, if the application were to succeed. In the alternative, it sought an order that the Appeals Tribunal would be required to pay the employer’s costs of such an appeal.
[26] Given the disposition of the application, it is not necessary to deal with the motion. However, in my view, this Court would have had no jurisdiction to make an order barring an appeal to the Court of Appeal. It would be for that Court to determine whether the Appeals Tribunal had standing and whether it should be granted leave to appeal.
[27] The Appeals Tribunal does not seek costs, and none are awarded. Costs to the worker are fixed at $3,000.00 payable by the employer.
Swinton J.
Jennings J.
Lederman J.
Released: December 21, 2009
COURT FILE NO.: 313/09
DATE: 20091221
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN and SWINTON JJ.
B E T W E E N:
WINDSOR UTILITIES COMMISSION
Applicant
- and -
JOVAN SKARA and WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
REASONS FOR JUDGMENT
SWINTON J.
Released: December 21, 2009