- In the course of employment (personal activity)
- Right to sue
The right to sue application was not granted.ST was shot in his left eye by a BB gun at his place of his employment. ST and his parents, N. and D. Thompson, as plaintiffs, filed an action against the defendants: KM, CW, the fast food restaurant, Prime Enterprises Inc. o/a Wendy's #6431 (PE), and the place where the BB gun had been purchased: Bass Pro Shops Canada ULC (BPS). P. Guido (PG), who had bought the BB gun with KM was also listed as a defendant in the action.The Vice-Chair noted that there was no dispute that BPS and PE were Schedule 1 employers at the time of the accident. In addition, there was no dispute that ST, KM and CW were workers employed by PE at the time of the accident. Furthermore, there was no dispute that CW was a shift manager in the course of her employment at the time ST was shot. It was noted that, at the time of the accident, CW was engaged in employment duties which involved closing the restaurant for the evening, including counting money.The Vice-Chair acknowledged that PE permitted its workers to enter its premises to check their work schedules when off shift, and while not being paid. It was also acknowledged that ST was injured on the employer's premises when he was shot. It was noted that these two criteria supported that there was an employment nexus to support that ST was injured in the course of employment.In addition, it was submitted by the applicants that the private room in the back of the restaurant where ST and KM stated they wanted to socialize could be viewed as an employment perk which was not condoned by the employer. In Decision No. 295/08, a worker was found to be in the course of employment when he attended a barbeque on the employer's premises for a purely social function. The Vice-Chair was satisfied that the case was distinguishable from the facts of this application. In Decision No. 295/08, the employer arranged the barbeque to foster better communication and working relationships. In the circumstances of this application, the employer did not make any such arrangements. It was noted that both ST and KM decided to attend the restaurant to socialize on their own initiative without employer input. While employees may have used the room for socializing, which may have been perceived as a perk by the workers, the Vice-Chair was satisfied that there was no evidence to support that the employer had made arrangements for ST and KM to do so during the relevant time.The Vice-Chair concluded that, in the circumstances of this application, the criterion of place was not sufficient to presume ST's injury occurred in the course of employment. It was emphasized that all three criteria must be satisfied. It was further pointed out that, unlike the situation in Decision No. 956/89, the incident in question in this application did not occur within a reasonable period of time after finishing work. In this application, ST and KM decided to attend the employer's premises on their own time, and did it for both work-related and for personal and/or secondary reasons. The Vice-Chair noted there was an absence of evidence of significance supporting that ST and KM were engaged in checking their work schedule when the accident occurred. This was also fortified by the police statement taken at the scene which stated the same. It was noted that ST and KM were socializing at the time, one of the personal non-employment reasons they entered the employer's premises. Thus, the Vice-Chair was satisfied that ST and KM were not engaged in an activity reasonably incidental to their employment at the time of the injury. Accordingly, it was found that both ST and KM were not in the course of their employment at the time of the injury. As such, the Vice-Chair concluded that ST's right of action was not taken away.