- In the course of employment
- Employer (sole proprietorship)
- Worker
- Right to sue (injury for which benefits are payable)
The issue in this application was whether the plaintiffs' right of action was taken away pursuant to section 31 of the Act, and whether the plaintiff was entitled to claim benefits under the Act for an injury that occurred at a construction site.
The application was granted. It was noted that section 12.2(1) of the Act provides that "every sole proprietor carrying on business in construction" shall be "deemed to be [a worker] to whom the insurance plan applies." Further, section 12.2(2) provides that where a person is deemed to be a worker under section 12.2(1), "the…sole proprietor… is deemed to be the employer for the purposes of the insurance plan". As the plaintiff was a sole proprietor in construction, he was a worker for the purposes of the Act. The plaintiff was also considered an employer in Class G4, which is a classification in Schedule 1 to the Act. It followed that, for the purposes of the Act, the worker was a worker employed by a Schedule 1 employer. As the accident occurred while the plaintiff was working, the Vice-Chair was satisfied that the subject accident occurred when the plaintiff was in the course of his employment.In addition, section 28(1) provides that a worker employed by a Schedule 1 employer is not entitled to commence an action against "any Schedule 1 employer". Since the numbered company/applicant was a Schedule 1 employer, the plaintiff was not entitled to commence an action against the numbered company/applicant. In addition, the plaintiff, in his capacity as a sole proprietor, was also a Schedule 1 employer. Section 28(1) also provides that a Schedule 1 employer is not entitled to commence an action against another Schedule 1 employer. This provided an additional basis for determining that the plaintiff was not entitled to commence an action. Furthermore, the co-plaintiff's Family Law Act claim was also taken away.The Vice-Chair found that even if the plaintiff had not registered or paid premiums to the Board at the time of the accident, this would not be relevant as he was compulsorily covered under s.12.2 of the Act. Even if premiums have not been paid to the Board, the Tribunal has found that the conditions are still met for taking away the right to sue in such cases (see Decision No. 292/17).