- Board policies (interpretation)
- Independent operator (delivery)
- Right to sue (statutory accident benefits)
- Worker (test)
The respondent in this right to sue application was delivering pizzas for a restaurant on June 14, 2020 when she was involved in a motor vehicle accident. She claimed benefits from the applicant insurance company as a result of the accident. The insurance company brought an application for a determination that the respondent was a worker entitled to benefits under the WSIA.
The application was granted. The applicant presented content from the WSIB's website that directly addressed the circumstances of fast food delivery drivers. However, this content could not be relied upon as legal authority. Statements on the Board's website were not minuted policy as contained in the Operational Policy Manual, nor was there any indication that the content had been formally endorsed by Board administrators, as was the case with Administrative Practice Documents. Consistency in adjudication could not be achieved by reliance on the content of the WSIB website where the responsibility for creation of the content and date of creation was not clear, or where the content could be amended at any time or disappear completely. The respondent was a worker and not an independent operator. Board policy on determining insurable earnings of drivers in the transportation industry states that the Board considers drivers in the fast food business to be workers and not independent owners. As well, the respondent would be considered a worker under the Board's more general policy on determining whether an individual is a worker or an independent operator. During the time she was working, she was fully integrated into the restaurant's business and not operating her own separate business. The restaurant exercised a high degree of control over how she performed her work and she had no opportunity to make a profit or risk of loss. While she drove her own vehicle, this factor was outweighed by factors indicative of an employer-worker relationship.