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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 2506 18
10/17/2018
R. Nairn

  • In the course of employment (parking lots)
  • In the course of employment (personal activity)
  • In the course of employment (reasonably incidental activity test)
  • Right to sue

The plaintiff in a civil case was injured in a motor vehicle accident in the employer's parking lot. The defendant applied to determine whether the plaintiff's right of action was taken away. The issue was whether the plaintiff was in the course of employment at the time of the accident.
The accident occurred at 3:00 pm, which was 90 minutes prior to the start of the worker's shift at 4:30 pm. The plaintiff arrived early on a regular basis in order to play dominoes with co-workers in the employer's lunch room.
An accident will generally be considered to have occurred in the course of employment if it occurred during work hours or during a reasonable period before starting or after finishing work. In determining whether or not the 90 minutes was a reasonable period before the worker's start time, the Vice-Chair was of the view that the activity being performed by the worker must also be taken into account.
In this case, the activity of playing games in the employer's lunch room was not reasonably incidental to employment. In essence, it was a social activity in which some of the employer's workers participated prior to starting work.
If a worker is injured in an employer's parking lot for reasons reasonably incidental to employment, the worker will be regarded as being in the course of employment. In this case, the plaintiff was in the parking lot 90 minutes before the start of his shift so that he could play dominoes with co-workers. Thus, the plaintiff's reasons for being in the parking lot at that time were not reasonably incidental to employment.
The plaintiff was not in the course of employment at the time of the accident. His right of action was not taken away.