- Collective agreement
- Independent operator
- Right to sue
- Worker (contract of service)
This action concerned whether the right of action of the plaintiff/respondent against four defendants was taken away pursuant to section 31 of the WSIA. The plaintiff was contracted to act in a film being shot in Ontario. A scene was changed on the day of the shoot to remove a dog from the scene. However, while the plaintiff was filming, the dog jumped up on the plaintiff and bit her on the face. She filed an action with respect to the injury she suffered on that day and the alleged sequelae to her health.
The applicant/defendant was a film and television production company, which had applied for and received optional WSIB coverage for its cast and crew at the relevant time. The coverage was applicable to cast and crew, including actors, but not to stunt performers. The Vice-Chair granted the application. The respondent's right of action against all four defendants was taken away by the Act.The Vice-Chair determined that the defendant production company was a Schedule 1 employer with respect to its actors on the film who had the status of workers at the time of the accident. The plaintiff's stay in Ontario was in excess of the 11 day threshold, and she was covered by the WSIA under these provisions despite being a U.S. resident. The plaintiff was in the course of her employment at that time. The plaintiff was not excluded from coverage as she was not a stunt performer. The plaintiff was a worker under Ontario law when she was injured in the course of the film production, and not an independent contractor. The plaintiff's relationship with the defendant production company was governed by a Collective Agreement which set out the rights and obligations of the parties. The plaintiff was a member of SAG-AFTRA, which is the bargaining agent for actors in the U.S. There was an interjurisdictional agreement (the Memorandum of Agreement) applicable to SAG members which provided that Canada's Alliance of Canadian Cinema Television and Radio Artists (ACTRA) would be the entity to enforce the collective agreement for the purposes of the Canadian film. The plaintiff signed and was bound by a Deal Memorandum to work on the film, which incorporated the terms of the SAG and ACTRA Collective Agreements, and was applicable to SAG performers working outside the U.S.The detailed provisions of the Collective Agreement in this case were consistent with worker status and not with independent operator status. The production company retained control over who performed the work, and how the work was done, set out aspects of the compensation arrangements, and specified the grievance procedures for any disputes. The Agreement provided for detailed provisions respecting the roles of the performers. The remittance of payments for pension, health, and welfare by the defendant production company on behalf of the plaintiff was consistent with an employment situation. The plaintiff was covered by the WSIB insurance that the defendant production company was required to obtain from the Board for the accident that took place during the course of her employment. As the plaintiff was a worker of a Schedule 1 employer and was in the course of her employment when she was injured, her right to sue the defendant production company for that injury was taken away by the Act. Her right of action against the three individual applicants was also taken away, including against the director of the film (considered a worker), an employee/worker, and the executive producer. Section 28 of the WSIA takes away the right of a worker of a Schedule 1 employer to sue both another worker of a Schedule 1 employer and the executive officer of that employer.