Highlights of Noteworthy Decisions

Decision 1725 22
A. Patterson
  • Worker (test) (organization test)
  • Right to sue (injury for which benefits are payable)
  • Independent operator (contract for service)

This right to sue application concerned a civil action for damages stemming from an accident which occurred on January 22, 2019. The Respondent's welding business, SMdN, was incorporated as a numbered company in the province of Quebec. On January 22, 2019, the respondent was at the applicant's place of business in Ontario, installing equipment on a truck belonging to the applicant. While performing this installation, the box lowered on the respondent's left arm, crushing it and resulting in eventual amputation of the limb. The respondent filed a claim with the CNESST (a Quebec governmental agency analogous to the Board). The claim was accepted and the respondent received benefits in relation to the injury. It was not contested that the respondent was in the course of employment at the time of the accident, or that the applicant was registered as a Schedule 1 employer with the WSIB.

The right to sue application was denied. The respondent's right of action was not taken away by the Act.
As per OPM Document No. 12-02-01, "Workers and Independent Operators", the respondent was found to be an independent operator. The respondent owned his tools and no written employment contract was signed. The respondent's full-time work was a reflection of the success of the applicant's business and consequent need for the respondent's services, rather than an exercise of control by the applicant. The respondent did not work exclusively for the applicant. The Vice-Chair noted that payment on an hourly basis did not reflect an employer-worker relationship but, rather, a straightforward way to calculate the services rendered in the context of an ongoing business relationship. The respondent was not a worker in his relationship with the applicant, as required for the application of the statutory bar set out in section 28(1).
In addition, the respondent was an executive officer of SMdN. Section 11(2) stipulates: "Subject to sections 12 and 12.2, the insurance plan does not apply to workers who are executive officers of a corporation." The respondent's counsel submitted that because the worker did not claim benefits under the WSIA, the statutory bar was not applicable. The Vice-Chair agreed. The worker's decision to claim and receive CNESST benefits did not fall within the ambit of the statutory bar.
The applicant argued that the respondent would be given an opportunity to "seek and receive double recovery." Decision No. 2793/18 noted that this argument is in the nature of issue estoppel and abuse of process. It further noted that because the question was not whether the section 31 application was an abuse of process at the Tribunal, but rather that the civil action was an abuse of process, the Tribunal did not have authority to make a finding that it was. The Tribunal's jurisdiction does not extend to determine whether a civil action should proceed for reasons beyond those set out in sections 27 and 28 of the Act.