Highlights of Noteworthy Decisions

Decision 808 22
J. Smith
  • In the course of employment (takes self out of employment) (intoxication)
  • Intoxication
  • Right to sue (injury for which benefits are payable)

The issue in this application was whether the Respondents' right of action was taken away pursuant to section 31 of the WSIA. The Plaintiff had been struck by a bulldozer driven by the Defendant who was under the influence of alcohol at the time.

The application was granted. The Defendant was in the course of employment when the June 19, 2017 accident occurred. As such, the Plaintiff's right of action was removed. The Family Law Act (FLA) action was also barred under s.27(2).
The Vice-Chair noted that, according to Tribunal jurisprudence, the analysis in such decisions should consider whether the worker's intoxication was to such a degree that it overwhelmed the contribution of the work-related factors in resulting in the accident. For instance, in Decision No. 635/89, the Panel found that the worker's conduct, while culpable, was not the sole or primary cause of the accident, and thus the worker was in the course of employment when the accident occurred. The Vice-Chair noted that the analysis requires a weighing of the contribution of the worker's intoxication to the work accident against the contribution of the work activities.
The Vice-Chair found that the Defendant's level of intoxication may have contributed to the work accident on June 19, 2017, but it was not the sole cause. The Defendant was in the performance of his duties operating the bulldozer when the accident occurred, and the evidence did not suggest that he was incapable of performing this duty because of intoxication. In addition, there were multiple additional factors which contributed to the accident, including a malfunctioning feature of the vehicle. It was determined that the work-related factors were significant contributing factors in the work accident, and were not overwhelmed by the Defendant's level of intoxication. Decision No. 712/90 has held that the analysis must ensure that the work-relatedness of the activity in right to sue applications is established and not presumed.
Lastly, it was submitted that the worker was convicted of a criminal offence and that he should not be protected from civil action resulting from that crime. The Vice-Chair distinguished the cases provided from the present application, in that there was an element of intent to harm established in each of those criminal convictions, which removed the perpetrator of that harm from their employment. The Vice-Chair did not agree that a dismissal of this application was "get out of jail free card" as the Defendant had served the sentence for his conviction, and it is not the Tribunal's mandate to impose punishment.