Highlights of Noteworthy Decisions

Decision 1383 13
S. Ryan
  • Employer (sufficient connection to Ontario)
  • Right to sue
  • Worker (sufficient connection to Ontario)

The plaintiff in a civil case was a worker of a Schedule 1 employer who was in the course of employment at the time of a motor vehicle accident in Ontario. The defendants were the driver and owner of the other vehicle. The defendant driver lived in New Brunswick. The defendant transport company was a company based in New Brunswick. The defendants applied to determine whether the plaintiff's right of action was taken away.

The issue was whether the defendants had a substantial connection to Ontario such that they fell within the scope of the WSIA. The plaintiff submitted that the out-of-province defendant company, that does not pay premiums under the WSIA, was attempting to shield itself from a civil action by means of the WSIA.
The Vice-Chair referred to Decision No. 382/10, in which it was noted that the objective of the WSIA is, in substance, to secure a civil right within the province. That civil right to be secured is that of an Ontario resident working in Ontario and injured in Ontario to be entitled to benefits under the Ontario WSIA. That decision went on to find that, if an employer has one or more workers engaged in work in or about an industry in Ontario, it is an employer within the meaning of the WSIA regardless of its location.
Board Operational Policy Manual, Document No. 12-04-12, deals with non-resident workers. It provides guidelines to determine whether a worker has a substantial connection to Ontario, the major consideration being the amount of time that the worker spends working in Ontario. Generally, a worker who works in Ontario for 11 or more days in the course of a year usually has a substantial connection with Ontario. The policy also lists other factors to consider.
In this case, there were some indicia that did not support a connection to Ontario, including that the driver and company were not residents of Ontario, the employment contract was not made in Ontario, the driver was not paid in Ontario and the driver qualified for workers' compensation in a jurisdiction outside of Ontario. However, those indicia were outweighed by the time spent in Ontario and the purpose of the trips to Ontario. The driver spent 11 or more days in Ontario in the year preceding the accident. In that year, he was in Ontario on 28 specific dates. The purpose of these trips was to deliver and pick up product for the transport company.
The defendants had a substantial connection to Ontario. Accordingly, the plaintiff's right of action was taken away.