Highlights of Noteworthy Decisions

Decision 1532 22
L. Petrykowski
  • Supplier of motor vehicle, machinery or equipment
  • Right to sue (gross negligence)

In this right to sue application, the issue in dispute between the parties was whether and how the exception found in subsection 28(4) of the WSIA could apply to the respondents' civil action. The plaintiff was a worker of a Schedule 1 employer in the course of employment at the time of his injury on February 4, 2019. The plaintiff attended the applicant's premises to take possession of a Genie boom (elevated working platform) as a piece of rental equipment. He slipped and sustained injuries outside the building that housed this rental equipment.

The application was allowed. The exception in section 28(4) did not apply. The respondents' right to sue the applicant was removed.
Subsection 28(4) of the WSIA deals with the exception to the prohibition on civil actions when an employer provides a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. The applicant's representative submitted that there must be an issue with the equipment for this exception to apply (see Decision No. 3733/17). There was no problem with the equipment in this case. Further, the law makes it clear that the Genie boom would have to form part of the chain of causation in the injury for the exception to apply. Decision No. 1307/13R required a linkage between the supplied equipment by the employer and the cause of action in a civil lawsuit.
The potential application of subsection 28(4) of the WSIA is to be viewed within the overall context of section 28 of the WSIA, particularly as the exception specifically references subsection 28(1). The removal of the right to sue provided for by subsection 28(1) of the WSIA specifies that this is to be done "in respect of the worker's injury". Therefore, there has to be a significant linkage between the supply of equipment in subsection 28(4) and the "worker's injury" for the exception to apply. The Genie boom did not form part of the injuring process here. The snow and ice conditions outside the building that housed the Genie boom was the cause of the plaintiff's workplace accident. The Vice-Chair found such circumstances to be remote and unrelated to the supply of any equipment by the applicant.