Court File and Parties
CITATION: The Corporation of the County of Simcoe v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 1319
DIVISIONAL COURT FILE NO.: 245/16
DATE: 20180301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., KITELEY & M.G. QUIGLEY JJ.
BETWEEN:
THE CORPORATION OF THE COUNTY OF SIMCOE Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent
– and –
KENNETH PRIESTMAN Respondent
COUNSEL:
Michael Comartin, for the Applicant
Chris G. Paliare and Lauren Pearce, for the Respondent Workplace Safety and Insurance Appeals Tribunal
Richard Blair and Tim Hannigan, for the Respondent Kenneth Priestman
HEARD at TORONTO: NOVEMBER 22, 2017
REASONS FOR DECISION
MARROCCO A.C.J.S.C.
Introduction
[1] The respondent, Kenneth Priestman, is a professional paramedic employed by the applicant. On his day off (July 25, 2009), the respondent and his wife went to a music festival in Collingwood in the County of Simcoe. At the festival a 220-pound man collapsed in front of them.
[2] Mr. Priestman (respondent) immediately responded to the medical emergency. He later received a commendation from the County of Simcoe (Simcoe) for his conduct, which was credited with saving the man’s life.
[3] Unfortunately, while trying to help the man, the respondent injured his bicep and required surgery. The respondent made a claim to the Workplace Safety and Insurance Board (the Board) for workers’ compensation benefits; Simcoe opposed his request. Although the Board denied the respondent’s claim, the respondent was successful in appealing the Board’s decision to the respondent Workplace Safety and Insurance Appeals Tribunal (the Tribunal).
[4] The subject matter of the appeal before the Tribunal was whether the respondent sustained “a personal injury by accident arising out of and in the course of his … employment”, which is required by section 13 (1) of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Schedule A (the Act) Act as a precondition for entitlement to benefits.
[5] The applicant brings this application for judicial review to quash Decision 2329/10R2 of the Tribunal dated November 25, 2015, which found that the respondent, even though he was off duty, suffered an injury during his employment and was therefore entitled to benefits.
[6] The applicant also seeks a declaration that the respondent is not entitled to benefits under the Act or alternatively an order remitting the issue of the respondent’s entitlement to benefits to a new hearing before a differently constituted panel of the Tribunal.
Factual Background
[7] The facts are not contentious.
[8] The respondent had been a paramedic for 28 years when he suffered the injury with which we are concerned. During that time, he has repeatedly helped members of the public while off duty (he estimates 75 to 100 times). He testified that because he is a paramedic he feels that he must help in emergency situations.
[9] When the man (the patient) collapsed, the respondent identified himself as a paramedic to the patient’s wife and started taking a history from her. Taking a history is part of the paramedic protocol. The respondent noticed that the patient had turned blue and had considerable difficulty breathing. Two persons believed to be doctors began doing mouth-to-mouth resuscitation and chest compressions. The respondent asked a police officer in the vicinity to call for an ambulance which arrived three or four minutes later.
[10] The respondent recognized the ambulance paramedic crew when they arrived. He briefed them on the situation and provided them with the patient’s history. One of the on-duty paramedics used a defibrillator unit. The respondent, whose evidence was accepted by the Tribunal, testified that he did not use the defibrillator because he had been instructed by Simcoe paramedic trainers not to use it when he was off duty. The respondent thought that he had received this instruction because Simcoe had insurance concerns.
[11] The on-duty paramedics asked the respondent to assist with the injured person. Specifically, the respondent, among other things, used a suction unit, given to him by one of the on-duty paramedics, to clear the patient’s airway and used monitoring pads, also provided by the on-duty paramedics, to monitor the patient’s heartbeat after the patient was successfully resuscitated.
[12] After the patient was successfully resuscitated, it was necessary to evacuate him to a hospital. The respondent went to the ambulance to obtain the backboard and then assisted in moving the patient onto the backboard and placing the backboard on the stretcher. After the patient was on the stretcher, a four-man lift was performed due to the combined weight of the stretcher and the patient, estimated to be 300 pounds. In addition to the respondent and the two on-duty paramedics, a police officer acted as the fourth person on the lift.
[13] When they were lifting the stretcher down a flight of stairs, the patient shifted, and the stretcher tilted to the right. The respondent tried to hold the stretcher up and as a result tore his bicep muscle.
[14] At the bottom of the stairs the respondent activated the trigger switch on the stretcher to make it easier to load the stretcher onto the ambulance. Activating the trigger switch is not as simple as it sounds; paramedic training is required to properly activate it.
[15] After the ambulance left, the respondent went to the hospital for his injury. Surgery was required. Eventually, the respondent returned to work with modified duties. However, at the time of his testimony before the Tribunal in November 2010, he had not returned to work as a paramedic.
[16] Section 126 of the Act requires the Tribunal to apply any applicable Board policy to the subject matter of the appeal. The Workplace Safety and Insurance Board has an applicable policy when determining whether a personal injury by accident occurred in the course of employment. This policy is set out in the Operational Policy Manual, Document No. 15-02-02, and is entitled “Accident in the Course of Employment” (the Policy). It states among other things that “[a] personal injury by accident occurs in the course of employment if the surrounding circumstances relating to place, time, and activity indicate that the accident was work related.”
[17] All levels of decision-making that considered the respondent’s claim applied the Policy and the place, time and activity criteria described in that document to the facts presented by the respondent’s claim to determine whether the accident was work related.
The Decisions preceding the Decision under review
The decision of the Appeals Resolution Officer
[18] In a decision dated March 11, 2010, an Appeals Resolution Officer of the Workplace Safety and Insurance Board applied the place, time and activity criteria in the Policy and concluded that the respondent, although performing paramedic activities, was not being paid by his employer at the time of the injury, was not obligated by his employer to assist with the patient, was not under the supervision and control of his employer at the time of the injury and was therefore not injured in the course of his employment.
The initial appeal decision of the Tribunal
[19] The respondent successfully appealed to the Workplace Safety and Insurance Appeals Tribunal. A three-member panel of the Tribunal decided his appeal in Decision No. 2329/10.
[20] While the three-member panel was not unanimous, both the majority and the minority applied the place, time and activity criteria in the Policy.
[21] The majority placed significant emphasis on the fact that the respondent was asked by the on-duty paramedics to assist and that it was during the time that he was assisting pursuant to their request that he was injured. The majority found that the respondent was asked to assist and perform certain tasks because the on-duty paramedics recognized him as a paramedic—as a person who knew what to do. The majority thought the respondent was acting more in his capacity as an employee than in his personal capacity. As a result, the majority, after applying the place, time and activity criteria, concluded that the respondent was injured during the course of his employment.
[22] The dissenting member concluded that, because the respondent was not usually assigned to Collingwood, the injury occurred in a place where the respondent would not normally have been expected to be, while engaging in work-related activities. The dissenting member also applied the place, time and activity criteria but concluded that the respondent was not injured during the course of his employment and was therefore not entitled to workers’ compensation benefits.
The Tribunal’s initial appeal decision must be reconsidered
[23] After the Tribunal released its decision, the applicant successfully requested reconsideration. The Tribunal in Decision No. 2329/10R granted reconsideration because it found procedural unfairness. Specifically, as indicated, the majority had found that the respondent entered the course of his employment immediately upon the request for assistance from the on-duty paramedics. The Tribunal considering the Reconsideration Request concluded that this theory was not raised during the hearing of the appeal, was not something which necessarily flowed from the issues and theories of work-relatedness advanced in the hearing and therefore was something that Simcoe had no opportunity to address.
[24] In granting reconsideration, the Tribunal did not decide whether this theory is correct in law; rather it concluded at paragraph 24 that “without deciding whether or not this principle is correct in law, it… is certainly one, in my opinion, that, in fairness, the employer should have been given an opportunity to address.”
[25] The Tribunal did not suggest that the rehearing of the appeal would be restricted to whether the respondent entered the course of his employment when the on-duty paramedics asked him to assist.
The rehearing of the merits of the appeal
[26] The actual rehearing of the merits of the appeal occurred on October 6, 2015.
[27] This is an appropriate place to observe that counsel for the applicant and the respondent on this application are not the same counsel who appeared for the Corporation of the County of Simcoe and Mr. Priestman before the Tribunal.
[28] At the commencement of the rehearing of the merits of the appeal, counsel for the respondent made the following statement: “This is a de novo hearing, … you’re obviously going to be looking at … the testimony of the workers, co-workers and medics …. And let me just spend a couple of minutes to go over what I think is some of the key testimony of evidence.” No objection was taken to this statement. See Record of Proceedings, Vol. 3, Tab 28, p. 1954, at line 12.
[29] At the rehearing of the merits of the appeal, the parties agreed that the Case Record from the earlier appeal, the transcripts from the earlier appeal and the entire Case Record from the Reconsideration Request would be received in evidence and those documents were made exhibits. Neither party called witnesses. Counsel for the respondent and counsel for Simcoe presented argument relying upon the exhibits as required. See Record of Proceedings, Vol. 3, Tab 28, pp. 1928-29.
[30] After argument, the Tribunal reserved its decision.
The Decision under review
[31] The Tribunal issued a decision on November 25, 2015; Decision 2329/10R2. Once again, the Tribunal applied the Policy to the facts. Specifically, the Tribunal applied the place, time and activity criteria and concluded that the respondent was in the course of his employment when he injured his arm while carrying the stretcher and was therefore entitled to benefits for that injury.
[32] Specifically, in paragraph 14 the Tribunal stated the following: “Applying the facts of this case to the criteria set out in the Board’s policy, I am of the view that the ‘activity’ criterion is satisfied. The worker was engaged in an activity of the very sort that his job required, that is, providing assistance in a medical emergency.” In paragraph 14 the Tribunal found that the respondent was injured while carrying a stretcher bearing a patient to an ambulance. It found that this was not an activity of a personal nature but rather was the kind of activity that he would routinely perform when discharging his work-related duties.
[33] In this regard the Policy states at p. 2:
The importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.
[34] In paragraph 15 the Tribunal found that the “place” criterion was satisfied. The Tribunal found that the activity that resulted in the respondent’s injury, that is, carrying the stretcher, occurred in a place, namely a music festival in Simcoe, where on-duty paramedics employed by Simcoe carried out their work-related duties.
[35] In paragraph 16 the Tribunal found that the “time” criterion was not satisfied because the respondent was not on duty and was not required by the terms of employment to engage in the activities that resulted in his injury.
[36] The Tribunal also found that there was an aspect of the evidence that suggested that the respondent was under the control of his employer when he suffered the injury. The Tribunal accepted the respondent’s evidence that while assisting the two on-duty paramedics he did not use the defibrillator because he had been instructed by his employer not to do so, if he engaged in paramedic activity while off duty.
[37] The Tribunal also drew an inference adverse to the applicant on this question because Simcoe Deputy Chief of Operations, Paramedic Services, a witness in the original appeal whose evidence was filed on the rehearing of the appeal, was never asked whether Simcoe had such a policy.
[38] The Tribunal was entitled to accept the respondent’s evidence. The Tribunal was entitled to draw the adverse inference.
[39] The Tribunal concluded that the applicant through this instruction was exercising control over the respondent, when he was assisting the patient, even though he was off duty.
[40] The Tribunal also relied upon previous Tribunal decisions that held that a worker who is injured while engaged in an activity that provides a substantial or direct benefit to the employer is in the course of employment. The Tribunal found that the respondent’s actions provided a benefit to the applicant because the respondent provided a high level of care to a member of the public at a music festival in Simcoe in a medical emergency.
[41] Although not one of its four grounds of review, the applicant objects to this portion of the reasons in paragraph 80 of its factum, stating the following: “Even if the respondent’s voluntary actions were of ‘benefit’ [to] the County of Simcoe because the respondent assisted a member of the public in a medical emergency, that cannot, on its own, be grounds for a finding that he was injured in the course of his employment.”
[42] I reject this submission.
[43] The Tribunal did not use its finding that the respondent conferred a benefit upon Simcoe by saving the patient’s life at a Simcoe music festival “on its own” as grounds for finding that the respondent was injured in the course of his employment. The Tribunal said that the fact that a benefit was conferred on Simcoe “fortified” the Tribunal in its conclusion that the respondent was injured during his employment.
Standard of Review
[44] The standard of review is reasonableness. See Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719, 92 O.R. (3d) 757, at paras. 15-16.
[45] The jurisprudence recognizes that the Tribunal is a specialized and expert decision-making body. See Mills v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 436, 237 O.A.C. 71, at para. 32. Whether an employee was “in the course of employment” is a fundamental question in many Tribunal proceedings and as a result must be within the Tribunal’s expertise.
[46] In addition, the Tribunal is not bound by legal precedent; it is bound by statute to “make its decision based upon the merits and justice of a case”. See section 124 (1) of the Act.
Issues on Judicial Review
[47] In paragraph 46 of its factum the applicant indicates that it applies for judicial review upon the following four grounds:
• The decision is fatally flawed because it rests upon the assumption that the defibrillator rule was a County of Simcoe directive when, in fact, it was a legal requirement imposed by the regulatory regime governing paramedics in Ontario.
• The decision fails to meaningfully apply the requirement for employer control, supervision or direction to finding an individual is “in the course of employment”.
• The application of the “place, time and activity” criteria was perfunctory and would lead to serious, unintended consequences, including making the County of Simcoe liable for injuries to off-duty paramedics virtually anywhere in Ontario.
• The decision conflicts with Ministry policy and allows paramedics to choose when to enter the course of their employment, contrary to the Ambulance Act.
Issue 1: The Defibrillator Rule
[48] The first ground upon which judicial review is urged is as follows:
The decision is fatally flawed because it rests upon the assumption that the defibrillator rule was a County of Simcoe directive when, in fact, it was a legal requirement imposed by the regulatory regime governing paramedics in Ontario.
[49] I do not accept this submission.
[50] The applicant points out that the term “paramedic” is defined in the Ambulance Act, R.S.O. 1990, c. A.19 and has three elements:
• Employment as an ambulance driver;
• Holding the qualification of emergency medical attendant; and
• Authorization from a base hospital to perform a “controlled act”.
[51] “Controlled act” is defined in Schedules 1-3 of O. Reg. 257/00 under the Ambulance Act which states in part that semi-automated external cardiac defibrillation is a controlled act.
[52] The base hospital for Simcoe County is the Sunnybrook Centre for Prehospital Medicine. The Sunnybrook Centre for Prehospital Medicine Rule requires that professional paramedics accredited by Sunnybrook can only perform cardiac defibrillation when they are on duty.
[53] Therefore, the applicant submits that the respondent can only be considered a paramedic when he is on duty.
[54] The Tribunal had before it the respondent’s evidence. Specifically, in response to questions put to him by counsel for Simcoe the respondent said the following:
A. “Well, it was a verbal from the training department when we first got introduced to this thing. They said, do not use this off duty, the defib monitor.”
Q. “What training department?”
A. “Simcoe County”.
See Record of Proceedings, Vol. 3, Tab 24, p. 1588, at lines 9-18.
A. Well, I meant not covered—not covered liabley [sic] with the monitor. Because if something happens with the monitor, if a family member runs up and touches the lady or the gentleman’s leg when the activation of that monitor, they both could get shocked and died, and that’s what we’re taught. Do not touch the monitor off duty. Everything else is, you are able to use.
See Record of Proceedings, Vol. 3, Tab 24, p. 1588, at line 1.
[55] No witness contradicted the respondent.
[56] The Tribunal also had the closing oral submissions of counsel for the Corporation of the County of Simcoe as follows:
“[T]hey do have policies in place that say there are things … you can’t do when you’re off duty, and here’s some of the things you can’t do because if you do them and you screw it up, we’re on the hook. Excuse my language, but we’re on the hook from a liability perspective.”
See Record of Proceedings, Vol. 3, Tab 28, pp. 2019 @ line 7 et seq
[57] Counsel also stated:
“So this County has decided there are certain things that they can’t do when they’re off duty, and that’s one of the things they can’t do. So I just—I think it’s very reasonable. Apparently, you have a concern about that. I think it’s very reasonable they can’t perform controlled acts like using the defibrillator. Simple as that.”
See Record of Proceedings, Vol. 3, Tab 28 & p. 2033 @ line 1 et seq.
[58] In closing written submissions counsel for the applicant advised the Tribunal that it was contrary to provincial law for an off-duty paramedic to use a defibrillator.
[59] The applicant at paragraph 56 of its factum relies on the fact that any sanction, imposed by the Ministry of Health and Long-Term Care or the base hospital for using the defibrillator while off duty, would be a consequence of provincial law and not Simcoe policy. While this may be correct, it does not follow that the applicant could not impose additional consequences for the same behaviour. The fact that the Ambulance Act declares that administering a cardiac defibrillator is a controlled act and that paramedics must be on duty when administering it does not preclude Simcoe from directing its employees in a similar fashion.
[60] The applicant suggests at paragraph 58 of its factum that the defibrillator rule can only have one source: provincial law or Simcoe policy, but not both.
[61] I disagree.
[62] It was reasonable based upon the evidentiary record and the parties’ submissions for the Tribunal to conclude that off-duty paramedics employed by the applicant were prohibited from using defibrillators by the applicant as well as provincial law.
Issue 2: Employer Control, Supervision or Direction
[63] The second ground upon which judicial review is urged is as follows:
The decision fails to meaningfully apply the requirement for employer control, supervision or direction to finding an individual is “in the course of employment”.
[64] The Policy and section 13 (1) of the Act make no reference to employer control, supervision or direction.
[65] Employer control is a circumstance that tends to suggest that the worker was engaged in the performance of a work-related activity when injured. It is a relevant factor; it is not a prerequisite.
[66] The Supreme Court of Canada considered the concept of employer control in the context of emergency situations in Betts & Gallant v. New Brunswick (Workmen’s Compensation Board), 1933 46 (SCC), [1934] S.C.R. 107 (S.C.C.). This was a case in which children climbed down the ladder of an abandoned mine and on reaching the bottom were overcome by gas. Two miners went to rescue them and were also overcome by gas. Mr. Betts and Mr. Gallant went to rescue the children and the two miners. They died while attempting to do that.
[67] The Workmen’s Compensation Board denied benefits to the families of Mr. Betts and Mr. Gallant. The Board concluded that the first two miners went to rescue the children because of a humane desire to rescue the children and not because they were acting in the course of their employment. The Board concluded that the two miners who died were in the same position and were not injured in an accident arising out of and in the course of their employment. The Board’s decision was upheld by the Appeal Division of the Supreme Court of New Brunswick.
[68] The families successfully appealed to the Supreme Court of Canada.
[69] Mr. Justice Crocket for the Court stated at p. 119:
The clear result of the cases, in my opinion, is that the scope of a workman’s employment, as indicated in his contract of service, whatever it is, may be impliedly enlarged by the occurrence of an emergency without any intervention on the part of the employer, and that, if the employment is thus enlarged, anything which the workman does in such an emergency is to be deemed quite as much a part of his employment as if it were comprehended in the contract of service itself.
[70] In addition, the Tribunal has expressed itself on the limited significance of employer control. In Windsor Utilities Commission v. Skara and Workplace Safety and Insurance Appeals Tribunal (2009), 2009 71720 (ON SCDC), 259 O.A.C. 158 (Div. Ct.) a panel of the Divisional Court at paragraph 23 referred to a decision of the Tribunal, namely Ford Motor Credit Corp. v. Kuruliak, Decision No. 832/92, in which the Tribunal rejected control as determinative of when a worker is in the course of employment. In that case the Tribunal at p. 6 made the following statement:
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.
[71] I am satisfied that when the Tribunal reheard the appeal it considered the question of employer control. Consistent with its previous decisions, the Tribunal viewed control as a circumstance to be considered in the determination of the respondent’s status at the time of the accident. The significance of employer control in the circumstances of this case was a matter for the Tribunal. The Tribunal reasonably concluded that some employer control was exercised because the applicant had instructed the respondent when he was being trained on the defibrillator not to use it when he was off duty.
[72] The applicant dealt with the reasons in the initial appeal in part of its factum. However, neither the majority nor the minority decision in the initial appeal is helpful. Once the Tribunal concluded that the initial appeal was procedurally unfair and ordered a reconsideration of the merits of the appeal, the original appeal decision was set aside. As a result, none of the conclusions in that decision were binding. In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 1985 23, the Supreme Court stated at p. 661, “[T]he denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision.” None of the conclusions in Decision No. 2329/10 were binding on the Tribunal rehearing the merits of the appeal.
Issue 3: The “Place, Time and Activity” Criteria
[73] The third ground upon which judicial review is urged is as follows:
The application of the “place, time and activity” criteria was perfunctory and would lead to serious, unintended consequences, including making the County of Simcoe liable for injuries to off-duty paramedics virtually anywhere in Ontario.
[74] The Tribunal’s application of the place, time and activity test was not perfunctory. The Tribunal’s decision in that regard speaks for itself. The Tribunal’s decision evinces a clear line of reasoning. It applied the place, time and activity criteria and found that the applicant exercised an element of control over the respondent and that the respondent’s actions provided a benefit to the applicant. The Tribunal’s line of reasoning focused on the relevant Policy and its factual findings concerning the acts which led to the respondent’s injury. The Tribunal was clear in stating the basis for its decision. The Tribunal’s conclusion that the respondent was injured during the course of his employment follows from the reasons that it provided.
[75] The applicant argues at para. 86 of its factum that nothing the respondent did was “uniquely a ‘paramedic duty’”. However, this assumes that the Policy requires engaging in conduct that is unique to that employment which it does not. Of course, it is reasonable to compare the activities that the respondent was engaging in when he was injured with his normal duties as a paramedic when applying the activity criterion in the Policy. The Tribunal did this and concluded that the respondent was “engaged in an activity of the very sort that his job required”. Also in this regard, the applicant’s argument that the respondent’s activities could have been performed by a skilled bystander was rejected by the Tribunal.
[76] The applicant objected to the Tribunal’s reference to “paramedic duties” and “paramedic activities” because the Tribunal did not explain what those duties were. It is obvious that the Tribunal was referring to the activities that a paramedic performs during his employment.
[77] I also reject the submission that the Tribunal’s decision results in the unintended consequence of exposing Simcoe to liability for injuries to off-duty paramedics virtually any place in Ontario.
[78] The place criteria in the Policy is described as follows:
If a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment.
A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.
If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.
[79] The Tribunal concluded that the respondent performs paramedic activity in any location in Simcoe in which a medical emergency might arise. Specifically, there was evidence before the Tribunal that the respondent performed paramedic activity in Collingwood, and it was Collingwood where the respondent was injured. During the respondent’s cross-examination by counsel for the applicant, the following exchange occurred:
Q. Okay, but you didn’t have any experience before this day in Collingwood.
A. Experience of what?
Q. Experience of having a code 4 call in Collingwood where all three services showed up.
A. Oh, yes, I worked there. We have had calls where everybody showed up.
Q. You have worked in Collingwood before?
A. Oh, yes. Many times.
See Record of Proceedings, Vol. 3, pp. 1556-57.
[80] This evidence shows that the respondent was injured in a place where he had performed work-related duties in the past which in turn supports the Tribunal’s conclusion that the respondent was injured in a place where on-duty paramedics in Simcoe are expected to carry out their work-related duties. Accordingly, the Tribunal’s decision in this regard was reasonable.
[81] If the evidence disclosed that the provincial ambulance dispatcher sent paramedics employed by Simcoe to places outside the County and if the respondent had been injured outside of Simcoe in one of those places, it would have been the responsibility of the Tribunal, pursuant to section 126 (1) of the Act, to apply the “place” criteria in the Policy to that evidence. Liability, if there was any, would not be due to unintended consequences of the Tribunal’s decision in this case; it would be due to the application of Board policy to the evidence. In short, the applicant’s complaint about its exposure lies with the Policy and not with the Tribunal’s decision.
Issue 4: The Ambulance Act and Ministry Policy
[82] The fourth ground upon which judicial review is urged is as follows:
The decision conflicts with Ministry policy and allows paramedics to choose when to enter the course of their employment, contrary to the Ambulance Act.
[83] There is no merit in this submission. The Decision under review does not permit paramedics to choose when to enter the course of their employment.
[84] In effect, the applicant submits that the Tribunal’s decision conflicts with the Ambulance Act. The applicant submits that a person is not a paramedic according to the Ambulance Act unless authorized by the Medical Director of the Base Hospital Program to perform controlled acts described in Schedule 1 of the Regulation. The respondent was off duty when he was injured and was at that moment not authorized by the Medical Director of the Base Hospital Program to perform controlled acts.
[85] The applicant’s submission suggests that by concluding that the respondent suffered an injury in the course of his employment, the Tribunal was finding him to be a paramedic as defined in the Ambulance Act at the moment when he was injured.
[86] The applicant’s submission misstates what the Tribunal was doing.
[87] The Tribunal was applying the Policy. While doing that, it had to apply the “activity” criterion in that document to what the respondent was doing when he was injured. When the Tribunal applied the activity criterion, it concluded that the respondent “was engaged in an activity of the very sort that his job required, that is, providing assistance in a medical emergency.”
[88] This conclusion is consistent with the description of the activity criterion in the Policy which 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.… In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as … the nature of the activity….
[89] There was evidence to support the Tribunal’s conclusion that when the respondent suffered his injury he was engaged in an activity of the very sort that his job required. Specifically, the respondent testified that he did the following:
• Assisted in carrying the patient up a few steps to get him out of public view so that they could work on him;
• Took the patient’s history from the patient’s wife (taking a patient’s history is an EMS protocol);
• Acted quickly because he knew that the patient was “vital signs absent” and that therefore it was an emergency;
• Informed the on-duty paramedics that the patient was “vital signs absent”;
• Cleared the patient’s airway which was clogging up;
• Applied monitoring electrodes to the patient’s heart;
• Went to the ambulance and got the backboard;
• Secured the patient to the backboard;
• Assisted in putting the patient and backboard on the stretcher;
• Assisted in lifting and carrying the stretcher; and
• Used the trigger switch to drop the wheels of the stretcher and assisted in pulling the stretcher towards the ambulance so that the on-duty paramedics could load the patient into the ambulance.
[90] Finding upon this evidence that the respondent was “engaged in an activity of the very sort that his job required” is a finding of fact; it is not a finding that the respondent was a paramedic as defined by the Ambulance Act when he was injured. The Tribunal was not interpreting or applying the Ambulance Act.
[91] The Policy required that the Tribunal ask itself whether what the respondent was doing when he injured himself was the very sort of thing his job required. The Tribunal asked itself that question and answered in the affirmative. The Tribunal’s line of reasoning focused on the relevant Policy and its factual findings concerning the acts which led to the respondent’s injury. The Tribunal was clear in stating the basis for its decision. The Tribunal’s conclusion that the respondent was injured during the course of his employment follows from the reasons that it provided.
Conclusion
[92] The Tribunal’s decision is reasonable. This application is dismissed. The parties are not seeking costs, so none will be ordered.
MARROCCO A.C.J.S.C.
I agree _______________________________
KITELEY J.
I agree _______________________________
QUIGLEY J.
Released: 20180301
CITATION: The Corporation of the County of Simcoe v. Workplace Safety and Insurance Appeals Tribunal, 2018 ONSC 1319
DIVISIONAL COURT FILE NO.: 245/16
DATE: 20180301
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MARROCCO A.C.J.S.C., KITELEY & M.G. QUIGLEY JJ.
BETWEEN:
THE CORPORATION OF THE COUNTY OF SIMCOE Applicant
– and –
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL Respondent
– and –
KENNETH PRIESTMAN Respondent
REASONS FOR JUDGMENT
Released: 20180301