Highlights of Noteworthy Decisions

Decision 890 21
29/09/2021
K. Iima
  • Right to sue (workers of both employers)

The respondent was a maintenance supervisor at a condominium complex. His employer was a maintenance company that had been contracted to provide maintenance and repair services to the complex. In January 2018, the respondent was injured in a slip and fall at the complex, and brought a civil action against the complex. The complex brought an application that the respondent's right of action was taken away by the WSIA.

The application was granted.
Section 28(3) of the Act provides that, if the workers of one or more employers were involved in the circumstances in which the worker was injured, s. 28(1) only applies if they were acting in the course of their employment.
There was no dispute that the respondent's employer and the complex were Schedule 1 employers, or that the respondent was in the course of employment at the time of the accident. The issue was whether the complex's employee was in the course of employment at the time of the accident.
The statement of claim made allegations that the complex's workers were involved in the circumstances in which the respondent sustained the injury. The claim alleged that the complex and its employees were negligent in failing to maintain and clear the area where the respondent fell.
Tribunal case law does not require strict contemporaneity between the actions of the defendant employer's workers and the happening of the accident. Rather, the test is one of work-relatedness. As long as the alleged acts of negligence in the Statement of Claim can reasonably be characterized as work-related activities, s. 28 applies to bar the action.