Highlights of Noteworthy Decisions

Decision 1959 15
05/10/2015
B. Kalvin
  • In the course of employment (reasonably incidental activity test)
  • Right to sue
  • In the course of employment (professional development activity)

The defendant in a civil case 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 an accident.

The plaintiff was a worker of a Schedule 1 employer. She was a member of a union. The plaintiff applied to the union to attend the union's convention. The union submitted a leave of absence request to the employer for the plaintiff to attend the convention. The employer granted the request. Attendance at the convention was not a requirement of the plaintiff's job. The union paid for meals and accommodation. The plaintiff was paid by her employer for the days she attended the convention but the employer was reimbursed by the union.
The plaintiff fell on the resort premises where the convention was taking place. The accident did not occur on the employer's premises. The plaintiff was not engaged in an activity that the employer required, controlled or from which it stood to gain. The Vice-Chair found that the worker was not in the course of employment.
The worker was paid by the employer but the employer was reimbursed by the union. Even if the employer was not reimbursed, the worker would not have been in the course of employment. Employers frequently pay their workers for times when they are not in the course of employment, for example, when workers are on vacation or are sick. What is probative is the nature of the activity in which the worker was engaging at the relevant time.
In reaching this decision, the Vice-Chair agreed with the reasoning of Decision No. 1138/12, which had facts similar to this case.
The plaintiff was not in the course of employment at the time of the accident. Her right of action was not taken away.