- In the course of employment (reasonably incidental activity test)
- Right to sue (statutory accident benefits)
- Worker (contract of service) (family member)
- In the course of employment (public road)
The applicants sought a determination that the right to sue them was barred by virtue of section 28 of the WSIA. On April 3, 2018, the respondent had been driving a school bus when he was struck from behind by a grain truck, driven by the applicant. The issue to be decided in this case was whether the applicant was a worker of his family's farm and whether he was in the course of his employment at the time of the accident.
The application was granted. The applicant was a worker in the course of his employment at the time of the April 3, 2018 accident. The respondent was barred by the WSIA from proceeding with his civil action.Subsection 2(1) of the WSIA defines a "worker" as "a person who has entered into or is employed under a contract of service or apprenticeship…" Decision No. 1305/11 provides guidance on the question of whether family members can be recognized as workers for the purposes of the WSIA when they perform activities associated with a family business. The analysis asks: was the injured person at the place where the accident occurred in order to further the commercial interests of another party? And, did some form of pecuniary benefit flow to the injured party from the arrangement? These questions were answered in the affirmative in the present application.The Vice-Chair found that the applicant maintained his status as a "hands-on" worker at the family farm even though he reached the general age of retirement (65) and had been recieving pension benefits. He was still performing productive work on the farm, working around six hours per day and six days per week. This was not done on a voluntary basis. This was his job, akin to full-time employment, albeit within the context of a family farming operation. Rather than receiving a traditional wage reported on a T4 slip for income tax purposes, the employer (farm) paid his living expenses, including internet, hydro, heat, phone, insurance and vehicle fuel/tires. This was a significant monetary and pecuniary benefit to the applicant. He expected this remuneration as part of an informal "contract of service" for his work. An employer-employee relationship was established between the farm and the applicant. The Vice-Chair determined that the worker was in the course of his employment at the time of the accident under OPM Document No. 15-02-02. Decision No. 165/96 also sets out 10 factors to consider in determining whether a worker is in the course of their employment. The Vice-Chair found that these factors were relevant in determining whether a worker was in the course of employment. The applicant picked up the grain truck on the date of accident for work-related purposes. This was a work-related activity, which was reasonably incidental to the nature of his employment. Although the accident occurred away from the employer's premises on a public highway, this did not preclude a finding that the applicant was in the course of his employment at the time since it "occurred in a place where [he] might reasonably have been expected to be while engaged in work-related activities" within the meaning of OPM Document No. 15-02-02. The applicant was the only person who held a special DZ license necessary to operate the grain truck. The worker's presence at the particular location where the accident occurred was entirely connected to what was expected of him due to his employment obligations on April 3, 2018.