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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 1055 13
7/23/2013
M. Crystal

  • In the course of employment (horseplay)
  • In the course of employment (takes self out of employment) (misconduct)
  • Misconduct
  • Misconduct (serious impairment)
  • Right to sue

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away. The plaintiff and defendant were working at a construction site. They were good friends. The work environment was laid back. The plaintiff slapped the defendant in the testicles. The defendant then threw bracing wire at the plaintiff. The wire lodged in the plaintiff's back causing injury. Generally, a worker is entitled to benefits under the WSIA if the worker suffers an injury by accident arising out of and in the course of employment. Board policy provides general parameters for determining whether a worker is in the course of employment. There is also a Board policy on fighting, horseplay and larking, and there is s. 17 relating to serious and wilful misconduct. Board Operational Policy Manual, Document No. 15-02-02, regarding accidents in the course of employment, directs consideration of place, time and activity. In this case, the injury occurred at the work site after the plaintiff and defendant had returned to work after their lunch break. In relation to activity, they were generally involved in a work activity, aside from the momentary act of the plaintiff slapping the defendant in the testicles. Document No. 15-03-11, regarding fighting, horseplay and larking, provides that there is no coverage for workers injured while participating in horseplay and larking. The Vice-Chair found that the plaintiff's act of slapping the defendant in the testicles was a serious deviation from the employment function and that it constituted an assault. The work environment was laid back and sometimes included joking behaviour but slapping a co-worker in the testicles was not accepted behaviour in the work environment. The plaintiff's behaviour constituted horseplay and, in keeping with the policy, by that behaviour he took himself out of the course of employment. The Vice-Chair found that the plaintiff's act of slapping the defendant in the testicles was planned and deliberate, and was sufficient to take the plaintiff out of the course of employment within the meaning of the Board policy. Section 17 provides that, if an injury is attributable solely to the serious and wilful misconduct of a worker, no benefits are provided unless the injury results in death or serious impairment. The Vice-Chair found that the plaintiff's action was the triggering or initiating action which set off a chain of events resulting in the injury to the plaintiff. Thus, the plaintiff's action was the sole initiating event and, in that sense, his injury was attributable solely to his action. Further, his standard of care and conduct was extremely low, so that it was foreseeable that consequential injury, including injury to himself, would follow. Some Tribunal decisions have found that s. 17 can only apply in circumstances in which a worker is in the course of employment. The Vice-Chair disagreed, noting that s. 17 applies to disentitle a worker where the injury is solely attributable to serious and wilful misconduct of the worker. By committing this misconduct, the worker had taken himself out of the course of employment. It follows that the worker must be considered not to have been in the course of employment at the time of the injury. Of course, s. 17 does not apply to persons who are participating in activities that are not work-related in any manner, but it does apply to persons who are not in the course of employment as a result of the operation of the section itself. There is a potential inconsistency between the Board policy on fighting, horseplay and larking, and s. 17, when the policy would disentitle the worker but the exception in s. 17 for death or serious impairment applies. In such circumstances, s. 17 must prevail. Section 17 must be interpreted to mean that, when a worker who has taken himself out of the course of employment suffers an injury that results in death or serious impairment, the worker is nevertheless deemed entitled to benefits and, therefore, must be deemed to be in the course of employment. In this case, the plaintiff suffered a serious impairment for which he was still receiving treatment three years after the accident. Therefore, he was deemed to be in the course of employment, and his right of action was taken away.