Highlights of Noteworthy Decisions

Decision 83 19
14/05/2019
R. McCutcheon
  • In the course of employment (travelling)
  • Legal precedent (consistency)
  • Right to sue

The plaintiff in a civil case was a passenger in a company-owned vehicle driven by the defendant, at the time of an accident in October 2014. The plaintiff brought the action against the driver and their employer. The defendants applied to determine whether the plaintiff's right of action was taken away.

The plaintiff and defendant were travelling from London to Windsor to perform cleaning services at a location in Windsor. The defendant first went to the employer's premises to get the van, and he loaded at least one piece of cleaning equipment on to the vehicle. The defendant then proceeded to pick up the plaintiff from the plaintiff's home in the company vehicle. They then proceeded to Windsor. The accident occurred near the work location. They were not remunerated for travel time. They did not make any distinct departure on their way to the job site.
The Tribunal has followed the courts in adopting the modern rule of statutory interpretation, which requires that the words of an Act be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme and object of the Act. The Vice-Chair also referred to a decision of the Alberta Court of Appeal applying that to the workers' compensation legislation, and stating that generally the Act is to be given a broad liberal interpretation, which allows compensation to be provided to as many workers in as many circumstances as the legislative scheme will reasonably permit.
Board Operational Policy Manual, Document No. 15-03-05, on travelling, states, under the heading of "Travel on employer's business," that when conditions of employment require a worker to travel away from the employer's premises, the worker is considered to be in the course of employment continuously except when a distinct departure on a personal errand is shown. Under the heading of "Proceeding to and from work," the policy states that a worker is considered to be in the course of employment when the conditions of employment require a worker to drive a vehicle to and from work for the purpose of that employment, and that the course of employment extends to a worker going to and from work in a conveyance under the control and supervision of the employer. Thus, the policy establishes that travel away from an employer's premises changes the nature of travel from a commute to travel on the employer's business.
The Vice-Chair clarified that the reference to going to and from work in a conveyance under the control and supervision of the employer falls under the heading of "Proceeding to and from work," and is intended to expand the scope of entitlement rather than restrict it. The provision does not restrict the scope of entitlement for travel away from an employer's premises.
Tribunal decisions regarding travelling have taken two main approaches: decisions adopting a straightforward interpretation of the Board policies; and decisions emphasizing the 10 factors listed in the multi-factorial approach taken in Decision No. 165/96, with less emphasis on the terms of Board policy. The former approach results in broader coverage under the WSIA, whereas the latter approach results in narrower coverage.
The Vice-Chair stated that it was desirable to achieve a consistent approach for the sake of predictability for the parties and for cohesion in the Tribunal's jurisprudence. The Vice-Chair found it appropriate to adopt the first approach, which engages in the straightforward application of the terms of the relevant Board policy. This approach results in broader coverage, consistent with the large and liberal interpretation that should be applied to remedial legislation such as the WSIA. This approach also is simpler that the multi-factorial approach, and tends to produce consistent results. Further, this approach prevents distinctions being made on an arbitrary basis.
The Vice-Chair noted that workers such as community service workers or other workers whose jobs require travel to one or more clients have usually been found to be in the course of employment while travelling to and from their first and last client, whereas construction workers and landscapers have often been found not to be in the course of employment. The Vice-Chair was of the view that the broader approach of the Board policy avoids such anomalous results. Any distinctions based on occupation ought only to be made on a principled basis, such as for transport truck driving or courier delivery, which inherently require travel as a work task.
Applying the Board policy, the Vice-Chair concluded that the plaintiff and defendant driver were in the course of employment at the time of the accident. The plaintiff's right of action was taken away.