- Arising out of employment (added peril)
- In the course of employment (employer's premises)
- Right to sue (statutory accident benefits)
The respondent/plaintiff and the applicant/defendant were employees of a company when the respondent claims to have been injured when he was struck by a vehicle driven by the applicant. The accident occurred prior to the scheduled start of the workdays of both men in a parking lot used by company employees. The applicants sought an order that the respondent's right of action was taken away by the WSIA.
The Vice-Chair granted the application. The respondent's right to bring a civil action against the applicant and the co-applicant was removed by the WSIA.There was no dispute that both the applicant and the respondent were workers of a schedule 1 employer. There was no dispute that they were on the driveway on the premises of their employer where the accident took place shortly before (less than 15 minutes) the start of their work shift because they were there to report to work. Workers who are on the employer's premises within a reasonable time of the start of a work shift will generally be found to be in the course of their employment. Where both workers of a Schedule 1 employer under the WSIA are in the course of their employment at the time of an accident, an injured worker's rights of action against the co-worker and the employer are removed by the provisions of section 26 and 28 of the WSIA.As the applicant was driving a vehicle at the time of the accident, this required consideration of the provisions of OPM Document No. 15-03-04, where individuals who were using an instrument of added peril for personal reasons can be an exception to the general rule that workers on the employer's premises within a reasonable period of time are in the course of their employment. The Vice-Chair concluded that the applicant driving a vehicle at the time of the accident did not remove him from the course of his employment. He was on the employer's premises shortly before the beginning his work shift for the purpose of attending at work. He was using an expected means of travelling to the employer's premises at the time of the accident, and being in a vehicle, as expected, did not remove him from the course of his employment.The respondent argued that, following his accident, the employer did not provide him with the same accommodations that he would have received if he had proceeded with a workers' compensation claim and had not sued. The Vice-Chair stated that he did not have the authority to consider these claims, particularly on the grounds of perceived fairness. It was also noted that it would be unfair to deprive the respondent and his insurer of the protections that they are entitled to under the WSIA as a result of the claimed actions of the employer.