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Established in 1985, the Workplace Safety and Insurance Appeals Tribunal (WSIAT) is the final level of appeal to which workers and employers may bring disputes concerning workplace safety and insurance matters in Ontario. WSIAT has always been separate from and independent of the Workplace Safety and Insurance Board.

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  Decision 1138 12
5/31/2013
R. McCutcheon

  • In the course of employment (distinct departure test)
  • Right to sue
  • In the course of employment (professional development activity)

Two teachers employed by a school board attended a workshop run by the union. They travelled about 40 kilometres to attend the workshop. After the workshop, the two teachers went shopping at a location about seven kilometres away from the workshop location. More than two hours later, they died in a motor vehicle accident when their car was in a collision with a tractor-trailer. The family members of the passenger in the vehicle brought an action against the estate of the driver. The defendant applied to determine whether the plaintiff's right of action was taken away. The defendant submitted that the teachers were workers in the course of employment at the time of the accident. Participation in the workshop was voluntary. Only 25 teachers of about 1,200 teachers employed by the school board attended the workshop. The participants were required to pay their own $50 registration fee. The workshop took place during work hours. The teachers received full pay. Under terms of the collective agreement, the union reimbursed the school board for costs of paying replacement teachers during the absence of the teachers to attend the workshop. According to Board policy, the concepts of requirement and obligation are essential to establishing that a worker was in the course of employment while travelling away from the employer's premises. In this case, teachers were not required to attend the workshop. It may have been instructive from a professional perspective but it was not a mandatory professional development program. Fundamental to the employment relationship and course of employment inquiry is whether the employer had some role in the activity being performed at the time of the accident. In this case, the school board had no role in arranging or organizing the workshop. Its only role was to allow the teachers to attend without loss of pay or benefits. The employer had no direction or control over the workshop, such as content, location or timing. Furthermore, the fact that a worker undertakes professional development does not necessarily place that professional development in the course of employment where the employer has no direction or control. The Vice-Chair concluded that the teachers were not in the course of employment. Even if the Vice-Chair had found that they were in the course of employment while attending the workshop, the Vice-Chair would have found that they made a distinct departure from the course of employment after the workshop ended when they deviated substantially from regular duties for the length shopping trip. The plaintiffs' right of action was not taken away.