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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 521 16 R
3/16/2017
S. Martel

  • Evidence (reply)
  • In the course of employment (employer's premises)
  • In the course of employment (plazas and malls)
  • Reconsideration (new evidence)
  • Right to sue

The plaintiff in a civil case was a worker at a restaurant, which was located in a plaza. The plaintiff completed his shift, left through the back door of the restaurant, walked through the plaza's parking lot and onto snow-covered grass in order to reach a path he took to get to the bus stop. He was injured when he slipped and fell on a snow-covered sign that had fallen onto the grass. The plaintiff brought the action against his employer and the owner of the plaza. The employer applied to determine whether the plaintiff's right of action was taken away as against the employer. In Decision No. 521/16, the Vice-Chair found that the plaza owner was responsible for clearing snow in the parking lot. The owner also arranged for cutting of grass in the summer in the area where the plaintiff was injured. The sign belonged to the employer and related to additional parking for the restaurant. The presence of the sign, which was owned and erected by the employer, suggested an element of control by the employer. Since the plaintiff was injured when departing from work in an area that he alleged in his Statement of Claim was controlled by the employer, his right of action against his employer was taken away. The plaintiff applied for reconsideration of Decision No. 521/16, on the basis of new evidence, namely, a proposed Fresh as Amended Statement of Claim. The original Statement of Claim alleged that the store had ownership, management and control of the area. The Fresh as Amended Statement of Claim alleged that store was a tenant leasing from the owner, that the store had control and management only of the store area and that the owner owned the store and the parking lot, and that the store put up the sign improperly and without authorization. The Vice-Chair stated that pleadings are not evidence. Even if the Fresh as Amended Statement of Claim was evidence, it was being submitted as reply evidence in response to the original decision and, as such, should not be admitted. Further, the allegations relied on examinations for discovery that were held prior to the original hearing. Regardless of the different wording, the Fresh as Amended Statement of Claim still alleged an element of control by the store and the owner. The Vice-Chair also noted that the original decision did not rely solely on the allegations of control in the original Statement of Claim. The Vice-Chair also considered other evidence regarding the sign and the parking lot from the store's vice-president of operations. The application to reconsider was denied.