Highlights of Noteworthy Decisions

Decision 130 16
G. Dee (FT)
  • Corporation (piercing corporate veil)
  • In the course of employment (distinct departure test)
  • Right to sue
  • Worker (test)

The plaintiff was a truck driver who was injured in a motor vehicle accident. He brought an action against the driver of the other vehicle. The defendant applied to determine whether the plaintiff's right of action was taken away.

The defendant driver was a worker in the course of employment. The issues in the case were whether the plaintiff was a worker and, if so, whether he was in the course of employment.
The plaintiff received payments from two corporations that did not operate at arms length from each other. One of the companies was a truck servicing company that was owned by the plaintiff's sister and her husband. The other company was a trucking company that was owned by the sister's husband. The plaintiff had incorporated and had his own trucks. He provided services to the truck servicing company as its service co-ordinator. He received the same amount of payment every month, paid to his corporation. Tools and equipment needed for his work as the service co-ordinator were provided by the truck servicing company.
The Vice-Chair found that the plaintiff was a worker of the truck servicing company. The fact that the plaintiff had incorporated was evidence of an intention to be independent but the substance of the relationship between the plaintiff and the truck servicing company had to be considered. His activities for the truck servicing company were completely integrated with the business of that company. He received the same payment every month, regardless of hours worked. The tools and equipment were provided by the company. He could not sub-contract the activities he performed as the service co-ordinator.
The plaintiff invested in equipment and had the opportunity for profit and loss in his role as a truck owner in his dealings with the trucking company but this did not alter the nature of his relationship with the truck servicing company.
The plaintiff was a worker. However, the plaintiff was not in the course of employment at the time of the accident. There was a distinct departure for personal activity to pick up his nephew from his nephew's school and take him to meet some friends. Since the plaintiff was not in the course of employment, is right of action was not taken away.