Highlights of Noteworthy Decisions

Decision 1779 19
J. Smith
  • Board Directives and Guidelines (in the course of employment) (multi-storey buildings)
  • In the course of employment (multi-storey buildings)
  • Right to sue

The plaintiff in a civil case worked for an employer occupying premises in a multi-storey building. She parked in the parking garage, and was injured in two accidents in April 2013 and June 2013, in the parking garage elevator, once when the doors closed on her and once when the elevator lurched. The plaintiff brought the action against the elevator maintenance company, as well as the building owner and property management company. The defendants 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 the accidents.
Board Operational Policy Manual, Document No. 15-03-04, defines an employer's premises. The Vice-Chair interpreted the policy generally to mean that an employee is considered to be in the course of employment upon entering the employer's premises. An employer's premises includes parking lots if owned or leased by the employer, common areas for entering or exiting the building at street level, and escalators, elevators and stairs to areas occupied by the employer or common areas from a public concourse to the main floor lobby. The policy specifically refers to elevators which are not on the main floor of the building and that do not lead to the employer's premises, providing that workers entering the building on any but the main floor or floor occupied by the employer are not in the course of employment until entering the elevator/stairs leading to the floor of the employer's premises.
In this case, both accidents occurred in the elevator servicing the underground parking lot to the main floor of the building. That elevator did not lead to, or provide access to, the employer's premises on the sixth floor.
The Tribunal is not required to apply Board policy in right to sue applications. However, it is important to maintain consistency with findings that might have been made had the case come to the Tribunal by way of appeal from a Board decision regarding entitlement. Therefore, Board policy continues to be relevant in right to sue applications.
As such, in consideration of Document No. 15-03-04, the Vice-Chair found that the plaintiff was not in the course of employment when either accident occurred. Accordingly, the plaintiff's right to sue was not taken away.