Citation: Blatz v. Workplace Safety and Insurance Appeals Tribunal, 2016 ONSC 7259

DIVISIONAL COURT FILE NO.: 2093/14

DATE: November 21, 2016

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Thorburn, Tausendfreund and Harper, JJ.

BETWEEN:

James Andrew Blatz Applicant

– and –

Workplace Safety and Insurance Appeals Tribunal and Intact Insurance Company Respondents

A. Campos Reales, for the Applicant James Blatz

D. Revington, for the Respondent, Workplace Safety and Insurance Appeals Tribunal

G. Robson, for the Respondent, Intact Insurance Company

Thorburn J.

OVERVIEW

[1] The Applicant, James Blatz seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal (WSIAT) dated March 11, 2014.

[2] The Workplace Safety and Insurance Act, SO 1997, C. 16 provides compensation for workers in exchange for giving up their right to bring a lawsuit.

[3] Section 28 of the Workplace Safety and Insurance Act, SO 1997, C. 16 provides as follows:

28. (1) A worker employed by a Schedule 1 employer, … [is] not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.

[4] The WSIB Operational Policies: Accident in the Course of Employment, 2004 provides as follows:

If a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.

[5] On November 10, 2010 the Applicant was doing construction work at a remote location and had gone to lunch at a nearby restaurant. The Applicant and the driver left the job site at approximately 1 pm to go to lunch, they arrived at the restaurant just after 1:15 pm, and they left the restaurant at approximately 1:45 pm. At the time of the accident, they were on their way back to work.

[6] The Applicant was injured in a motor vehicle accident when the vehicle driven by his co-worker hit a telephone pole.

[7] At paragraph 16 of the WSIAT decision Vice Chair Josefo found that at the time of the accident, “there is no question…that while they were on the lunch break, and travelling to and from the restaurant, the individuals were not in the course of their employment”.

[8] In his analysis throughout the balance of the decision and his conclusion, Vice Chair Josefo found that at the time of the accident, the Applicant was involved in activity that was “reasonably incidental” to his employment.

[9] The Vice Chair therefore determined that the Applicant was entitled to statutory accident benefits pursuant to section 268 of the Ontario Insurance Act, R.S.O. 1990, c. 18. However, he held that the Applicant was not permitted to commence a legal action against his employer or co-worker as section 28 of the Workplace Safety and Insurance Act, S.O. 1997, c. 16 does not permit a person to commence an action against his employer or co-worker if s/he was “acting in the course of his employment” at the time the accident took place.

JURISDICTION AND STANDARD OF REVIEW

[10] It is agreed that this court has jurisdiction to hear this matter pursuant to sections 2 and 6 of the Judicial Review Procedure Act, R.S.O. 1990, c. 11.

[11] The parties also agree that the standard of review is reasonableness as this application involves questions of mixed fact and law. (See Roach v. Ontario (Workplace Safety and Insurance Appeals Tribunal, [2005] O.J. No. 1295 (Ont. C.A.) at para. 17 and Kuffuor v. First Bus Canada, 2014 ONSC 2297 (Div. C.t) at para. 28.)

[12] The WSIAT has exclusive jurisdiction to determine whether the right to sue is removed by the Act.

[13] Section 31(3) of the Act provides that, “A decision is final and not open to question or review in a court.” Moreover these decisions are protected by a privative clause that provides that “an action or decision of the [WSIAT] under this Act is final and is not open to question or review in court.”

THE ISSUES

[14] The Applicant’s central claim is that the WSIAT made two inconsistent statements: one a statement at paragraph 16 of the decision that the Applicant was not acting in the course of his employment at the time of the accident, and a contradictory analysis and conclusion in the rest of the decision that at the time of the accident, the Applicant’s activities were reasonably incidental to his employment and therefore he was entitled to claim WSIB benefits but had no right to sue.

[15] The Applicant further claims that there were two findings of fact for which there was no evidence:

I. Mileage money was paid to go back and forth to lunch. (Para 14)

[16] The Vice Chair held that,

They were not driving in a company supplied vehicle. Rather, Mr. Peters owned his car, was being paid some monies for mileage to drive it to and from the worksite, and it was his car that was being used when he and Mr. Blatz went to lunch.

II. The Applicant and the driver of the vehicle “did not stop, they did not socialize, they did not engage in any other activity other than eating.” (Para 28)

[17] The Applicant suggests that contrary to this finding of fact, the only evidence on this point came from the driver of the vehicle. When he was cross examined, the driver stated that he and the Applicant “socialized” at lunch.

THE EVIDENCE

[18] The Applicant was employed as a general labourer for PM Construction, a company located in Aylmer Ontario. The Applicant and his coworker were assigned to work at a location that was five hours away from Aylmer.

[19] This required them to stay overnight at a hotel in Dorset. The hotel costs were paid for by the employer, they were paid $25 per day by the employer for food and other expenses and the driver received some compensation for his mileage.

[20] The workers were allowed to go where they wanted for lunch and they chose to go to a restaurant in Dorset. They arrived at the restaurant at around 1:20 pm and they left the restaurant at approximately 1:45 pm. They went nowhere other than to and from the job site to the restaurant.

[21] The accident occurred after they finished eating lunch and were on their way back to the job site. As the Applicant’s coworker drove back to the site, his car hit a telephone pole.

[22] The bulk of the analysis addresses the question of whether that activity of driving back to the job site was “reasonably incidental to their employment” or whether it was a “distinct departure on a personal errand.”

ANALYSIS OF THE TRIBUNAL’S DECISION AND CONCLUSION

[23] We do not agree that the following words in the decision suggest that the Vice Chair wrongly concluded that the driver of the vehicle received money to drive to and from lunch.

They were not driving in a company supplied vehicle. Rather, Mr. Peters owned his car, was being paid some monies for mileage to drive it to and from the worksite, and it was his car that was being used when he and Mr. Blatz went to lunch.

[24] Moreover, we do not agree that there is no foundation in fact for the Vice Chair’s conclusion that the Applicant and the driver of the vehicle did not “socialize”. Although the driver of the vehicle may have indicated otherwise, the evidence is that they came directly to the restaurant for lunch, they were at the restaurant for less than ½ hour and they returned immediately thereafter to work.

[25] Even if there were errors of fact, we agree with the Respondent that the Tribunal’s reference to the fact that the Applicant’s coworker was paid some money for mileage did not play a determinative role in the decision.

[26] We now move to the central issue on this Application: whether the Vice Chair’s statement at paragraph 16 of his decision that at the time of the accident, “there is no question…that while they were on the lunch break, and travelling to and from the restaurant, the individuals were not in the course of their employment” renders the decision as a whole unclear and therefore unreasonable such that the decision should be quashed.

[27] In his analysis, Vice Chair Josefo noted that lunch breaks are generally deemed to be personal time that represents a distinct departure from employment. He noted that generally, when an employee is based at the employer’s premises and leaves for lunch, he ceases to be working as lunch is a personal not a work-related activity. (Tribunal decisions 1238/08 and 2142/99).

[28] However, he noted that several Tribunal decisions have determined that a worker who is not based at the employer’s premises but is working at a remote location remains in the course of employment because the worker is where he is as a result of his employment duties. In Tribunal decision 1238/08, the Tribunal held that the workers were only in that location as a result of employment duties.

[29] Vice Chair Josefo also relied on two other decisions of the Tribunal in 2258/081 and 2296/08 to support his finding that the Applicant’s actions were reasonably incidental to his employment and therefore he was entitled to claim WSIB benefits but had no right to sue.

[30] In 2258/081 the Tribunal noted that the employee was stationed at a remote location, his accommodation was paid for and he received a per diem for meal expenses. The employee and his coworker stopped for dinner at a restaurant because they noticed the vehicles for other coworkers were there. They stopped for dinner and had drinks afterward. The restaurant was located approximately 2 kilometres from the motel where he was staying. The employee was found to be acting in the course of his employment at the time of his injury and was not permitted to commence an action against his employer. The Tribunal found that the dinner and the socializing amongst the work crew were reasonably incidental to their employment.

[31] In 2296/08 the Tribunal determined that,

I find that the worker’s need for sustenance and the satisfaction of that need to not be a “distinct departure on a personal errand”. I accept Mr. Majesky’s submissions that “eating lunch is not a personal errand.” I do not find that eating lunch is any more a personal errand than using washroom facilities. These activities are not a matter of choice, they are matters of necessity in our everyday existence. The only matter of choice may be where to eat and what to eat, not having to eat.

[32] Vice Chair Josefo cited these cases with approval before concluding that,

Mr. Blatz was on November 16, 2010 and at the time of the MVA involved in an activity reasonably incidental to his employment. Accordingly, Mr. Blatz has no right to sue, or to claim SABs but he may claim WSIB benefits.

[33] He went on to say that while the Applicant was not paid for his lunch time,

a) the Applicant was stationed at a remote location,

b) his accommodation was paid for by the employer and he received 2 dollars more per hour as he was working at a remote location,

c) he received a per diem for meals and other expenses whilst away from the home base of the workplace, and

d) the Applicant and his coworker went directly to a restaurant for lunch for ½ hour and returned directly to work as soon as they finished their lunch.

[34] He therefore concluded that taking lunch was not a distinct departure on a personal errand but rather, the Applicant was involved in an activity reasonably incidental to his employment at the time of his injury. The per diem expenses for meals is recognition that because the workplace was in a remote location away from his work base, a reasonable sum was to be provided by the employer for meals as his work required him to be away from his work base.

[35] The Vice Chair justified his conclusion as follows:

… in this matter before me, all the two individuals did was go directly to lunch, eat, and then proceed directly toward the worksite. They did not stop, they did not socialize, they did not engage in any other activity other than eating. There was no lingering after the meal…There was also no activity that could be said to be a “personal activity” or a “distinct departure on a personal errand” other than the act of going to lunch, in and of itself. Again, these gentlemen did not deviate from their route back to the cottage to resume their work activities’ there was no extra-curricular shopping trip, nor anything but an intention to re-fuel the body and then directly return to the work activity in the remote location.

[36] This was a ten page decision devoted to the issue of whether or not the Applicant had a right to sue. Vice Chair Josefo provided a comprehensive review and analysis of the evidence, a review of prior WSIB decisions that held that the Applicants in those cases had no right to sue on facts similar to those in this case, and he concluded at paragraph 34 of his decision that,

For all these reasons, I find that the applicant has successfully made out its case on the evidence that Mr. Blatz was on November 16, 2010 and at the time of the MVA involved in an activity reasonably incidental to his employment. Accordingly, Mr. Blatz has no right to sue or to claim SABs but he may claim WSIB benefits.

[37] A very high level of deference is to be afforded WSIAT decisions. (Mills v. Ontario (WSIAT), 2008 ONCA 436, [2008] O.J. No. 2150 paras 14, 24 and 31 (C.A.).

[38] In this context, the decision as to whether a decision is reasonable must be reviewed by considering whether the decision has been justified, is transparent and intelligible and whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Dunsmuir v. New Brunswick, [2008] SCC 9, paras 47 and 51).

[39] The decision should be approached as an “organic whole, without a line-by-line treasure hunt for error.” (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, 2011 SCC62, [2011] 3 S.C.R. 708.)

[40] This means that the court will only interfere where there is no evidence in support of a finding of fact or if there are no lines of reasoning that would support the decision. (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190 at para. 40.)

[41] The deference to be afforded this particular tribunal is high as there is a strong privative clause in recognition of the fact that this is a specialized tribunal and that the determination of whether a person should be allowed to bring an action involves the interpretation of the WSIB’s home statute, a matter which is specifically within its expertise. (Campbell v. Workplace Safety and Insurance Appeals Tribunal, 2013 ONSC 6870 316 OAC 159 (Div. Ct.) at paras. 60 and 62.)

[42] While the Vice Chair made a finding at paragraph 16 of the decision that is inconsistent with his analysis and conclusion, the decision as a whole shows a clear line of reasoning supporting the Vice Chair’s conclusion, and evidence that justifies his conclusion. Moreover, the decision falls within a range of possible, acceptable outcomes which are defensible in respect of both the facts and law.

[43] Upon reviewing the decision as a whole, it is clear that the Vice Chair intended to deny the Applicant the right to sue on the basis that at the time of the accident, his activity was reasonably incidental to his employment and that he was thereby acting in the course of his employment.

[44] For these reasons, the Application is dismissed.

[45] The parties agree that there should be no order as to costs.

“Justice Thorburn”

Thorburn J.

“Justice Tausenfreund”

Tausendfreund J.

“Justice Harper”

Harper J.

Released: November 21, 2016