Highlights of Noteworthy Decisions

Decision 1758 19
J. Dimovski
  • Right to sue
  • Schedule 1 employer
  • Statutory interpretation (principles of)
  • Supplier of motor vehicle, machinery or equipment (purchase or rental basis)

On November 30, 2015, the plaintiff fell off a mast-climber work platform (a "mast-climber") while performing welding work at a construction site of a multi-level residential building. The applicants submitted that the respondent's right to commence an action has been taken away by section 28(1) of the WSIA.

The right to sue application was granted in part. The right to sue against GA Masonry Limited was not taken away.
As the respondent was a worker employed by a Schedule 1 employer and was in the course of his employment when he sustained his injuries, the worker would not have a right to commence an action in accordance with the WSIA. The question became whether the exception set out in section 28(4) applied to allow the respondent to maintain his action. The exception contained in section 28(4) reads as follows: "(4) Subsections (1) and (2) do not apply if any employer other than the worker's employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment."
It was submitted that the wood planking used as the platform on the relevant mast-climber was not machinery or equipment and thus, the exception in s.28(4) did not apply. The Vice-Chair found that the planking provided a central purpose which was to provide a moveable platform for workers to perform work. Therefore, the wood planking was an essential component which rendered the mast-climber operable for its central purpose. The Vice-Chair stated that the wood planning was a pivotal component of the machinery or equipment at issue in this application, such that it could not be recognized as divisible in order to avoid the ambit of s.28(4).
Next, it was noted that informal arrangements to permit the use of machinery or equipment, that appear to confirm a right to use equipment akin to a rental or lease agreement, satisfy the criteria set out in s.28(4). It is the substance of the relationship as opposed to form which determines whether a vehicle, equipment or machinery has been transferred under an agreement akin to a purchase, lease or rental agreement. Accordingly, the applicant G&A did supply the mast-climber on a rental basis. However, it also supplied workers to operate the mast-climber, which excluded it from the exception. The worker was considered an operator of the equipment (mast-climber) he used on the day he was injured. He was provided training to operate the mast-climber based on the additional risk introduced to his work environment, in spite of any possible negligent acts in assembling or operating the equipment or machinery.