Highlights of Noteworthy Decisions

Decision 653 22
2022-10-24
E. Kosmidis
  • In the course of employment (personal activity)
  • In the course of employment (travelling) (overnight accommodation)
  • Right to sue (injury for which benefits are payable)

This right to sue application was granted in part. The respondent's action against Blue Mountain Corporation was taken away pursuant to section 26 of the WSIA. It was not taken away against the co-defendant, who was sued in his personal capacity as owner of the chalet where the injury occurred, and was not a worker or executive officer of a schedule 1 employer.

The applicants relied on OPM Document No. 15-03-05, "Traveling", which provides that workers are considered to be in the course of employment when staying in a hotel as a condition of employment. It also states that when the conditions of the employment require the worker to travel away from the employer's premises, the worker is considered to be in the course of the employment continuously, except when a distinct departure on a personal errand is shown.
The Tribunal has concluded that activities such as sleeping, eating and using the bathroom are considered reasonable acts where the worker is covered during overnight accommodations. In Decision No. 625/17, an individual retiring to their bedroom to sleep was deemed reasonably incidental to employment as "sleeping is a basic necessity of life". In this case, the worker was injured while walking back to her bedroom to sleep after smoking outside. The respondent's activity of walking to her bedroom to sleep was therefore considered reasonably incidental to her employment.
Furthermore, in determining whether activities are reasonably incidental to employment, the Tribunal applies a broad test that considers the totality of the event (see Decision No. 1886/04). Tribunal decisions have found that workers can move in and out of the course of employment, such as when they take a break to complete personal errands, and then return to their work duties (see Decision No. 869/99). However, workers engaging in brief interludes of personal activity are often still considered to be in the course of employment.