Highlights of Noteworthy Decisions

Decision 484 21
E. Kosmidis
  • Board Directives and Guidelines (parking lots)
  • In the course of employment (parking lots)
  • Right to sue

The applicants were the defendants in civil actions brought by the respondent arising out of a motor vehicle accident between the respondent and one of the applicants in March 2012. The respondent and the applicant were employees of the same employer, and the accident occurred at 5:30 a.m. on the employer's parking lot as they arrived to start a 6:00 a.m. shift. The applicants applied for a determination that the respondent's right to sue was taken away by section 31 of the WSIA.

The application was granted.
The applicant and the respondent were in the course of their employment at the time of the accident. Under OPM Document No. 15-03-03, On/Off Employer's Premises, and OPM Document No. 15-03-04, Employers Premises, Parking Lots, Roads, Plazas, Malls, Boundaries, an employer controlled parking lot is considered the employer's premises and workers who enter the lot are considered to be in the course of their employment. Being in an employer's parking lot in order to start work is incidental to one's employment obligations. The parties arrived in the parking lot at a reasonable time before the start of their shift and there was no evidence that they were in the lot for any reason other than starting their work shift.
There is an exception in the policies that provides that workers are not in the course of their employment when using an instrument of added peril such as an automobile for personal reasons, unless the condition of the lot causes the accident. In order for this exception to apply, the use of the instrument of added peril must have been for personal reasons. In OPM Document 15-03-04, the "Guideline" for parking lots that the condition of the lot must cause the accident is qualified by the opening paragraphs of the policy requiring that the use of the automobile be for personal reasons. It is only when the worker's use of an instrument of peril such as an automobile is for personal reasons that the condition of the employer's parking lot becomes a relevant consideration.