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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 188 15
3/23/2015
E. Smith

  • In the course of employment (proceeding to and from work)
  • In the course of employment (travelling)
  • Right to sue

The defendant in a civil case applied to determine whether the plaintiff's right of action was taken away. The issue was whether the defendant was in the course of employment at the time of a motor vehicle accident. The defendant was a community service worker. The worker lived in northern Ontario, about a 50 minute drive from the employer's business office. She attended the homes of a number of clients during the day, using her personal vehicle. She was paid a travel allowance for mileage and time spent travelling from the first client of the day to the last client of the day. She was not paid for mileage or time spent to reach the first client or to travel home after attending the last client. The accident occurred as the worker was travelling home after visiting her last client of the day. Under Board policy, a worker is generally not in the course of employment while proceeding to and from work. However, there are exceptions in the policy. One exception is for travel on the employer's business, where workers are required to travel away from the employer's premises, in which case the worker is considered to be in the course of employment continuously. A second exception relates to proceeding to and from work, where a worker is considered to be in the course of employment when the conditions of the employment require the worker to drive a vehicle to and from work for the purpose of the employment. The Vice-Chair found that the defendant met both exceptions. Regarding the first exception, the defendant was required to travel away from the employer's premises and, therefore, is considered to be in the course of employment continuously. The Vice-Chair agreed with Decision No. 251/09 that this exception applies not only to travel after attending the primary work location but also to travel to and from work sites directly from home. Regarding the second exception, the Vice-Chair was satisfied that it was an implicit term of her contract that she was required to use her car for work. There was no other practical way for the worker to have carried out her job. The employer's policy manual explicitly stated that a worker is not in the course of employment while travelling to and from the first and last clients of the day. This provision may have effect and be binding with respect to the employer's obligation to pay for time and mileage and, perhaps, in other employment-related contexts, but was not binding with respect to workplace insurance entitlement. The question of whether a worker is in the course of employment for workplace insurance purposes is a matter of application of law and Board policy. The defendant was in the course of employment at the time of the accident. The plaintiff's right to sue the defendant was taken away.