Highlights of Noteworthy Decisions

Decision 2071 12 R2
S. Martel
  • Abuse of process
  • Employer (sufficient connection to Ontario)
  • Independent operator (truck driver)
  • Out of province (substantial connection)
  • Parties (participation)
  • Reconsideration
  • Right to sue
  • Worker (sufficient connection to Ontario)
  • Worker (test)

Pursuant to Decision No. 2071/12R, the Vice-Chair reheard the application of the defendants in a civil case to determine whether the plaintiff's right of action was taken away regarding a motor vehicle accident in Ontario involving two trucks on November 18, 2007.

The plaintiff was an Ontario resident employed by a Schedule 1 employer. The defendant transport company was based in Manitoba. The driver was a resident of Manitoba. The owner of the truck was also in the truck at the time of the accident.
There was a preliminary issue regarding the status of the truck owner to participate in the application. The original application under s. 31 of the WSIA listed the transport company and the driver as the applicants. It did not list the truck owner. This may have resulted from the fact that the statement of the applicants was filed before the plaintiff filed a Statement of Claim. The plaintiff submitted that it would be an abuse of process to allow the owner to participate.
The Vice-Chair found that there was no abuse of process in this case. First, the Tribunal application arising out of the accident has not been finally litigated. Secondly, the owner never expressly indicated that he was not participating. The Tribunal has granted a new hearing on the merits of the application. It is not a misuse of resources to allow the owner to join the application formally, as a new hearing must be held in any event.
The Vice-Chair found that the truck owner was an independent operator and not a worker of the transport company at the time of the accident. There are many factors to consider in determining worker or independent operator status. Recent Tribunal decisions have emphasized intention of the parties and capital investment. The truck owner had originally been a worker of the transport company but he bought his own truck with his own money. He then operated his own truck and bore the risk of profit and loss. The parties also intended that their agreement be one where the owner was an independent operator.
The defendants submitted that they did not need to establish a substantial connection to Ontario, in that the test of substantial connection only applies to a person seeking compensation from the WSIB. However, the Vice-Chair found that, while the majority of Tribunal decisions have had to consider a plaintiff's substantial connection to Ontario, that does not necessarily mean that the substantial connection of the defendants is not relevant. The Vice-Chair concluded that the provisions removing the right to sue apply only where the plaintiffs and defendants establish a substantial connection to Ontario.
The employer's connection to Ontario may be a factor, among others, that can be considered in determining a worker's connection to Ontario. However, the focus should be on the connection between the worker and the province. The fact that an employer conducts a significant amount of business in Ontario does not mean that all of its workers are subject to the provisions of the Ontario workplace insurance legislation.
In this case, the transport company did a considerable amount of business in Ontario. The driver was injured on his first trip through Ontario. However, he was not primarily hired to operate in Ontario. He was hired because he spoke French and could drive to Quebec for pick-ups and deliveries, with possible stops along the way in Ontario. The driver's contract was made in Manitoba, he was paid in Manitoba, his usual place of employment was Manitoba and the transport company paid premiums to the Manitoba Board.
The Vice-Chair concluded that the driver did not have a substantial connection to Ontario.
The right of action was not taken away as against the truck owner or the driver. Section 28(1) of the WSIA provides that a worker cannot commence an action against a Schedule 1 employer. Section 28(3) provides that subsection (1) applies only if the workers were acting in the course of their employment. Since neither of the personal defendants were workers under the WSIA, s. 28 did not remove the plaintiff's right of action against the transport company. Accordingly, the plaintiff may continue the action against all of the defendants.