- In the course of employment (access roads)
- In the course of employment (employer's premises)
- Right to sue
The plaintiff in a civil action worked as an underground miner at a mine. His employer had contracted with the mine to provide mining services, including personnel. On February 5, 2013, the plaintiff was involved in a single car accident while driving his own vehicle home following the completion of his shift. The accident occurred on an access road that was the only way into the mine. While the mine did not own the road, it had a right-of-way over the road, as did a few other individuals who used the road to access camps or cottages. The mine contracted with another company to carry out winter maintenance on the road. No other entity, including the municipality or the other easement holders performed any maintenance on the road.
The statement of claim alleged that the plaintiff sustained injuries as a result of the negligence of the mine, as the alleged owner of the road, and/or the company responsible for maintenance of the road. The defendants brought an application for a declaration that the plaintiff's right of action was taken away by the WSIA. The application was granted. The question to be determined was whether the plaintiff was on the employer's premises at the time of the accident. Although the worker was not employed directly by the mine, the premises of the plaintiff's employer and the premises of the mine were to be treated as one and the same for the purposes of the determination. To do otherwise would mean that workers injured in essentially identical circumstances could be treated differently based solely on corporate contractual arrangements outside a worker's control and of which they may be unaware. The Board's policy on employer's premises refers to both "employer-owned private roads" and roads that are "completely controlled" by the employer as being part of the employer's premises. Reading the policy passage as a whole, the policy does not require that the employer (or the mine, in this case) own the road or have complete dominion over the road. Rather the policy emphasizes the elements of control as determinative. Moreover, Tribunal cases dealing with private or access roads have found a road to be considered as part of the employer's premises based on aspects of control rather than outright ownership. In this case, the mine exercised a relatively high degree of control over the road. It was not a public road. Although a few individuals also had rights-of-way over the road, this did not change the fact that the mine exercised primary control over the road. The mine patrolled the road, contracted for maintenance, and advised the contractor regarding road conditions. The mine closed one end of the road, creating only one way to access the mine site, and posted signage indicating the road was private and others using it would be trespassing. The road was therefore part of the employer's premises. As the plaintiff was on the employer's premises at the time of the accident, he was in the course of his employment and his action was barred by the Act.