Highlights of Noteworthy Decisions

Decision 573 19
B. Kalvin
  • Casual employment
  • Right to sue

The spouse of L brought a civil action against the owner of an apartment building and the handyman who was working for the owner. The defendants applied to determine whether the plaintiff's right of action was taken away.

There were sewage problems in the building. The owner tried to contract the work out to a plumber but the plumber told him that the blocked drain belonged to the city. The city worker attempted to unblock the drain using a snake but the snake broke. For reasons that are unclear, the city appears to have then walked away from the problem. The owner then attempted to hire a company specializing in drain repairs but the drain company advised that it would not be available until the following week. At that point, the owner decided to do the work himself, using his handyman. The owner rented an excavator for the handyman. The handyman had never previously operated an excavator in relation to his duties for the owner.
L had been staying with the superintendent of the building as a guest. L was watching the work. When it was determined that the handyman would need some help, the owner approached L and asked if he would help out, offering to pay him $12 per hour. L agreed. L died when the pit being excavated collapsed on him.
The Vice-Chair found that the work being done at the time of the accident was work the owner would normally have contracted out. It was only after unsuccessful attempts to contract out the work that the owner assigned the work to his handyman and L.
Referring to Decision No. 1989/19, the Vice-Chair found that not all forms of maintenance or repair done by an enterprise or worker are necessarily part of the industry of the apartment building operator. The Vice-Chair concluded that L was a person whose employment was "of a casual nature" and who was engaged in work that was "otherwise than for the purposes of the employer's industry." Accordingly, L came within s. 11(1)(a) of the WSIA and was not a person who was entitled to benefits under the WSIA. Accordingly, his right of action was not taken away. It followed that the rights of action of the spouse was also not taken away.