Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 86
FSCO A14-000053
BETWEEN:
ROY MUNROE
Applicant
and
GORE MUTUAL INSURANCE COMPANY
Insurer
REASONS FOR DECISION ON A PRELIMINARY ISSUE
Before: Stuart J. Mutch
Heard: March 12, 2015
Appearances: David Cavanaugh for Mr. Munroe Karen Marie Power for Gore Mutual Insurance Company
Overview:
Roy Munroe was injured in a motor vehicle accident on December 19, 2012 (“the accident”). Disputes arose between Mr. Munroe and his insurer, Gore Mutual Insurance Company (“Gore”), concerning his entitlement to accident benefits payable under the Schedule1 and Mr. Munroe applied for arbitration at the Financial Services Commission of Ontario (“FSCO”) under the Insurance Act.2
Issues
At the pre-hearing, Gore raised a preliminary issue: Was Mr. Munroe employed within the meaning of the Schedule at the time of accident?
Result:
Mr. Munroe was employed within the meaning of the Schedule at the time of the accident.
Background
The accident occurred at 5:30 a.m. on December 19, 2012, when Mr. Munroe was struck by a car while crossing a street in Belleville.
The question in this hearing is whether Mr. Munroe’s relationship with LRTS, a temporary employment agency, as it stood on December 19, 2012, constitutes employment for the purposes of the Schedule.
Gore takes the position that Mr. Munroe was not employed at the time of the accident because he had no permanent position and was working a series of temporary jobs, through an employment agency, on a sporadic basis.
Mr. Munroe takes the position that he was employed because:
- He had an ongoing relationship with a LRTS through which he obtained temporary employment on a sporadic, but steady basis;
- LRTS withheld amounts from his paycheques for taxes, CPP and EI, as would any employer;
- He had not severed his relationship with LRTS and they had not issued a Record of Employment in the year before the accident;
- He was on his way to LRTS to enquire about work availability when the accident happened.
Mr. Munroe is 50 years of age. In February 2012 Mr. Munroe moved from the Toronto area to Belleville. In April 2012 he applied for assistance through Ontario Works. Shannon Tummon, a caseworker with Ontario Works, testified that Mr. Munroe was on a “deferment” at the time of the accident, that is, he was not required to search for employment or be employed because of medical problems. As well, Mr. Munroe had applied for, and began receiving income support under the Ontario Disability Support Program (“ODSP”) commencing in October 2012.
Both Ontario Works and the ODSP permit recipients to be employed. According to Mr. Munroe if his employment earnings exceeded $300 per month, the amount in excess would be deducted from his Ontario Works payments.
Mr. Munroe testified that he could not manage on Ontario Works payments and in March 2012 he applied for employment through the Belleville branch of an agency known as Labour Ready Temporary Services (“LRTS”). LRTS provides temporary, on-demand labour to different industries. Mr. Munroe had registered with LRTS in 1999 when he resided in Toronto. I will use the more neutral term “candidates” when I refer to those who enter into a contractual relationship with LRTS.
Patrick Trudeau, a multi-branch manager at LRTS, testified as to the nature of the relationship candidates have with LRTS. A candidate enters into a contract with LRTS and then may attend at, or phone into LRTS to enquire about available work. It is within the candidate’s discretion to accept work offered by LRTS. Mr. Trudeau advised that assignments range between four hours and three weeks. He further advised that if 30 days pass with no work undertaken by a candidate, LRTS issues a Record of Employment, as part of their agreement with Human Resources Development Canada. Mr. Trudeau stated “After 30 days of inactivity we consider the employee to have resigned” and a Record of Employment (ROE) is “automatically issued”. Under cross-examination Mr. Trudeau advised that LRTS regards itself as a temporary employer and that it makes deductions from candidate’s paycheques and remits them to the appropriate authority.
Mr. Trudeau testified that the only record he has of ROEs issued to Mr. Munroe was one issued in December 2011, while Mr. Munroe was still residing in Toronto and another after the accident. Mr. Trudeau did not present a record of Mr. Munroe’s attendances at LRTS. However an Employee Verification Report spanning the period December 1, 2011 to April 23, 2013 shows him being paid for work assignments commencing April 27, 2012 and ending December 3, 20123 for a total of 56 working days totalling 442.65 paid hours.4 His T4 for 2012, issued by LRTS, shows employment income as $4,760.75, the same amount that appears on the Employee Verification Report.5
Mr. Munroe testified that he would attend at LRTS once per month and work for a week or two. The Employee Verification Report would suggest that, at times, Mr. Munroe attended and worked more frequently than that, particularly in the months of May, September and October. There was a 56 day gap from May 18 to July 11 where no income is recorded.
Analysis
The Schedule does not provide a definition of “employed” or “employment”. Counsel provided me with two FSCO arbitration cases that deal with the issue of employment. The reasoning in these cases suggests that whether a person is employed for the purposes of the Schedule depends upon the intentions of the putative employee and employer and upon the facts in each case.
In Joyce and Co-operators General Insurance Company6 the Applicant was a Registered Nurse who provided home care nursing for terminally ill patients and who, at the time of the accident, worked for two companies on an “as-needed” basis. Her situation was similar to Mr. Munroe’s in that her employer had no obligation to provide her with work and she had no obligation to accept it. She had not worked for about 10 weeks prior to the accident and described her work in the year before the accident as “nominal”. The arbitrator found her to not be employed at the time of the accident. The decision was reversed on appeal. Director’s Delegate Naylor stated: “the fact that the employer has no obligation to guarantee work or that the employee has the discretion to work…are not determinative of employment status. Each case must be determined on its own particular facts”.7 Ms. Joyce worked 93 days in the 52 weeks before the accident. Mr. Munroe had worked 56 days in the same period. Mr. Munroe claims he only called in once a month but in the months just before the accident he worked 13 out of a possible 19 weekdays in September, 17 days out of a possible 22 in October and 9 out of a possible 22 in November. He had put in 4 hours of work on December 3, 2012, the last recorded work before the accident. He had worked every month from April to December except for June. Director’s Delegate Naylor noted that “had there been evidence that Ms. Joyce had removed herself from case-assignments for a significant period, the result in this case might have been different”. Mr. Munroe in the instant case admitted that there were times when he did not make himself available for assignment, in order to give himself “a chance to rest”. I do not have a record of the period Mr. Munroe did not make himself available, however beginning August 24, 2012 there was no gap in his employment that exceeded 8 days until the 15 day hiatus between December 3 and the accident. I do not view these gaps as significant, particularly when I consider the Applicant’s physical and mental difficulties, as outlined in his ODSP Self Report Form.8
In Madore and Co-operators General Insurance Company9 Arbitrator Macintosh wrote that the state of being employed depends on the intentions of the employer and the employee and the expectations between them. Mr. Madore was involved in an accident on March 19, 1992. Mr. Madore had stopped working for his employer, Purolator, on January 25, 1991, and received no payment from them after May 22, 1991. Purolator had granted Mr. Madore a leave of absence because of illness but they expected him to return. By May or June 1991 Mr. Madore had resolved not to return and on June 27, 1991 began to receive UIC benefits, which were predicated upon unemployment. Arbitrator Mackintosh found this to be inconsistent with a continued intention to remain employed as a driver courier, despite the fact that Mr. Madore made what she described as a “pro forma” bid on his regular courier delivery route in June or July 1991. The decision was upheld on appeal to the Director’s Delegate.
Like Mr. Madore, Mr. Munroe had taken steps that would seem to be inconsistent with an intention to be employed. Included in the documentary evidence is a self-reporting form, referred to earlier, and completed by Mr. Munroe for Ontario Disability Benefits in July 2012. It is evident from the application that Mr. Munroe considers himself disabled and unable to work due to a variety of medical issues. In spite of that, Mr. Munroe continued to work on a fairly steady basis after making that report, as outlined previously. In my view, the ODSP application does not take away from the fact that Mr. Munroe was working for wages, irregularly, but steadily until the accident.
Mr. Munroe’s situation is very much “on all fours” with that of Ms. Joyce in the case described above. Their respective work assignments were temporary in nature. The Director’s Delegate noted that Ms. Joyce was persistent in seeking work from the employer. As stated earlier, I do not have a record of the number of times Mr. Munroe sought employment at LRTS. Nonetheless, the Employee Verification Report shows that in the five-month period leading up to the accident Mr. Munroe never had more than a one month gap in employment assignments. At the time of the accident Mr. Munroe had not worked for just over two weeks. The uncontradicted evidence of Mr. Munroe is that he had resumed his contact with LRTS 14 days after the last day worked and 4 days before the accident and that he was in fact on his way to their offices when he was involved in the accident. To my mind, this demonstrates a clear intention to be employed. There was no evidence that LRTS had issued a Record of Employment to Mr. Munroe during the period commencing April 2012 to the date of the accident, and no other evidence that they had severed their relationship with him. The evidence indicates a mutual intention to continue an employee/employer relationship.
Taking all of the evidence into account, I find that Mr. Munroe was employed within the meaning of the Schedule at the time of the accident.
Expenses
If the parties cannot agree on entitlement to, or the amount of expenses of the proceeding they may request an appointment to determine expenses in accordance with Rule 79.1 of the Dispute Resolution Practice Code.
April 22, 2015
Stuart J. Mutch Arbitrator
Date
Financial Services Commission des Commission services financiers of Ontario de l’Ontario
Neutral Citation: 2015 ONFSCDRS 86
FSCO A14-000053
BETWEEN:
ROY MUNROE
Applicant
and
GORE MUTUAL INSURANCE COMPANY
Insurer
ARBITRATION ORDER
Under section 282 of the Insurance Act, R.S.O. 1990, c.I.8, as amended, it is determined that:
- Mr. Munroe was employed within the meaning of the Schedule at the time of the accident.
April 22, 2015
Stuart J. Mutch Arbitrator
Date
Footnotes
- The Statutory Accident Benefits Schedule — Accidents on or after September 1, 2010, Ontario Regulation 34/10, as amended.
- R.S.O. 1990, c.I.8, as amended.
- Document Brief, Part 2, Tab C4, Page 4
- Docment Brief, Part 2, Tab C4
- Document Brief, Part 2, Tab 5
- Joyce and Co-operators General Insurance Company (FSCO P96-00014, March 4, 1997), Appeal
- Ibid, paragraph 17
- Exhibit “2” Tab 3, page 115
- (OIC A-004305, August 24, 1994)