Highlights of Noteworthy Decisions

Decision 2064 12
28/02/2013
R. McCutcheon
  • Right to sue
  • Worker (contract of service) (family member)

The plaintiff in a civil case was the step-son and brother of co-owners of a convenience store. The plaintiff, who was 18 years old at the time, went into the store to mind the cash register while his stepfather visited a friend in the hospital. The plaintiff was injured in the store. The plaintiff brought an action against the store and the co-owners. The defendants applied to determine whether the plaintiff's right of action was taken away.

The issue was whether the plaintiff was a worker within the meaning of the WSIA. Decision No. 577, an early Tribunal decision, introduced three factors (remuneration, intention, control) for consideration in determining whether an individual is a worker. Family businesses present unique considerations because the arrangements are often casual, unwritten and implied. This is particularly a concern where children of the owners are involved.
A worker is a person who has entered into or is employed under a contract of service. However, the WSIA does not apply to persons whose employment is of a casual nature and who are employed otherwise than for the purposes of the employer's industry. The plaintiff's role in this case was casual in nature. He had been asked to fill in at the store and he did so. Previous attendance at the store was sporadic. The exclusion is only where the person is employed otherwise than for the purposes of the employer's industry. Even when the individual performs a role related to the purposes of the employer's industry, some form of employment relationship must be present to justify workplace insurance coverage and removal of the right to sue. In such circumstances, the three-part approach in Decision No. 577 continues to provide a relevant framework for the analysis.
Regarding remuneration, the plaintiff does not receive wages or other benefits related to his time spent in the store. Regarding intention, there was no evidence that the parties formed a mutual intention to enter into an employment relationship. The plaintiff's attendance at the store was sporadic and he could come and go as he pleased. Regarding control, there was no evidence of control or supervision. The plaintiff was not trained on any of the equipment in the store. In the context of a family relationship, any lack of freedom may arise from familial obligation rather than an employment relationship.
At the time of the accident, the plaintiff was essentially performing a favour for his stepfather. The plaintiff was not a worker within the meaning of the WSIA. His right of action was not taken away.