Highlights of Noteworthy Decisions

Decision 214 21
J. Dimovski
  • Board Directives and Guidelines (in the course of employment) (personal activity)
  • In the course of employment (personal activity)
  • In the course of employment (reasonably incidental activity test)
  • Right to sue

The applicants were the defendants in a civil action brought by the respondent arising out of an accident on November 23, 2016. The respondent worked in a fast-food restaurant and her shift began at 6:00 a.m. She was walking in the employer's parking lot from her vehicle to the restaurant at 5:35 a.m. when she was struck by the applicant driver. The applicants brought an application for a declaration that the worker's right of action was taken away by the WSIA.

The application was denied.
Board policy and Tribunal decisions provide that a worker will be in the course of employment when the worker was at work or on duty at the time of the accident. The factors of time, place, and activity are considered. A worker engaged in work-related duty or activity reasonably incidental to employment will generally be considered to be in the course of employment.
The respondent was not in the course of her employment at the time of the accident. She had a fixed start time of 6:00 a.m. and was not expected to log in prior to that. Her arrival at the workplace 25 minutes before her scheduled shift was for personal reasons of having breakfast and a cigarette before starting her shift. She regularly arrived at work 25 to 35 minutes early for this reason. These activities were not reasonably incidental to her employment.