Court File and Parties

CITATION: Chen v. Workplace Safety and Insurance Appeals Tribunal, 2021 ONSC 1149

DIVISIONAL COURT FILE NO.: 01/19

DATE: 20210216

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: SHU LIN CHEN, Applicant

AND:

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, SARGENT FARMS Limited and blue chip building restoration limited, Respondents

BEFORE: Swinton, Pattillo and Boswell JJ.

COUNSEL: Daniel J. Holland, for the Applicant

Michelle Alton, for the Respondent Tribunal

Victor T. Bulger, for the Respondent Sargent Farms Limited

Deborah J. Lewis, for the Respondent Blue Chip Building Restoration Limited

HEARD at Toronto (by videoconference): February 9, 2021

ENDORSEMENT

Swinton J:

[1] The applicant seeks judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal dated December 1, 2017 (2017 ONWSIAT 3686) that held she was barred from proceeding with a civil action against the respondents Sargent Farms Limited (“SF”) and Blue Chip Restoration Limited (“BC”).

[2] The applicant was injured on February 3, 2014 when she fell in a parking lot owned by SF and maintained by BC. She had just gotten out of a car and was proceeding to the entrance of her workplace, a poultry processing plant owned and operated by SF.

[3] A worker who is injured in an accident arising out of and in the course of employment is entitled to benefits under the insurance plan established by the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (“WSIA”) (see s.13(1)). Pursuant to s. 26(2), those benefits are in lieu of a right of action against the employer, and s. 28(1) provides that a worker employed by a Schedule 1 employer cannot sue any Schedule 1 employer with respect to their injury or disease.

[4] The work force at SF’s plant is composed of individuals employed by SF as well as those employed by two other companies. The applicant was employed by a numbered company, 1480364 Ontario Inc. (“148”). SF, BC and 148 are all Schedule 1 employers pursuant to the WSIA. After the applicant commenced a civil action against SF and BC, they brought an application pursuant to s. 31 of the WSIA to determine whether her right to commence an action had been taken away by s. 28(1) of the WSIA.

[5] The applicant argued before the Tribunal that her employer was 148, as 148 paid her wages. Therefore, her civil action against SF and BC was not barred pursuant to s. 28(1) of the WSIA. She relied on Board Policy No. 15-03-04, which states that a worker who is injured in a parking lot while on the way to or from work is in the course of employment if the parking lot is owned or leased by his or her employer. Here, SF was the owner of the parking lot, not 148.

[6] The key issue before the Tribunal was whether the applicant was in the course of her employment at the time of the injury. If so, her civil action was barred. SF argued that the applicant was employed by it because of the control it exercised over her employment.

[7] The Tribunal considered the evidence of the relationship of the applicant with both SF and 148. While she received her wages from 148, and that company paid workers’ compensation premiums and made source deductions, the Tribunal concluded that SF was “de facto” her employer or “in substance” her employer. The Tribunal based this conclusion on the evidence that SF made the decision to hire and fire all workers, including those employed by 148. SF carried out training, determined when an individual could take time off, made decisions about discipline and termination, calculated the compensation owing to the individual from its time cards, and reimbursed 148 for the wages paid.

[8] Ultimately, the Tribunal concluded (at para. 41),

… most of the substantive control over the numbered company’s employees was exercised by SF Limited. On this basis, I conclude that, at the time of the accident, although the numbered company was the [applicant’s] named employer for the purposes of payroll, as well as a few other related functions, SF Limited was in the position of being the [applicant’s] employer, in substance.

The Tribunal then concluded that the applicant had been in the course of her employment at the time of the accident, and her civil action was barred.

[9] The Tribunal subsequently rejected an application for reconsideration in a decision dated July 3, 2018.

[10] All the parties agree that the standard of review in this case is reasonableness.

[11] The applicant argues that the Tribunal decision was unreasonable because there was an absence of evidence to explain the arrangement between 148 and SF. Without such evidence, counsel argues that the Tribunal did not have a foundation to find SF to be the de facto employer, and it should have treated the two corporations as separate entities.

[12] In my view, the applicant has failed to demonstrate that the decision of the Tribunal was unreasonable. The lack of evidence about the arrangement between 148 and SF does not render the Tribunal’s decision unreasonable. Its task was to determine whether the applicant was in the course of her employment at the time of her injury. I note that s. 124(1) of the WSIA provides that the Tribunal shall make its decision “based upon the merits and justice of a case.”

[13] The Tribunal carefully analyzed the relationship of the applicant and each corporate entity. It concluded that SF extensively controlled the employment of the applicant and was “in substance” her employer. As well, the Tribunal concluded that workers of SF and 148 should be treated the same way when determining whether an accident occurred in the course of employment. The evidence supports the conclusion that SF was, in substance, the employer of the applicant, and the Tribunal’s reasons for its conclusion were logical and transparent.

[14] The applicant submits that it is unfair and unjust to prevent her from proceeding with a tort action. However, the bar to her action arises from the WSIA, particularly s. 28(1). A worker of a Schedule 1 employer who is injured in the course of her employment is barred from pursuing a tort action against Schedule 1 employers because of what is known as the “historic trade-off”: the legislation gives such workers access to the no fault workers compensation scheme in return for the bar to civil proceedings against employers (Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890 at paras. 25-26).

[15] As the applicant has failed to show that the Tribunal decision was unreasonable, the application for judicial review is dismissed.

[16] The Tribunal does not seek costs. Costs to SF are fixed at the agreed amount of $4,260 and to BC the agreed amount of $3,000.

Swinton J.

I agree _______________________________

Pattillo J.

I agree _______________________________

Boswell J.

Released: February 16, 2021