- Independent operator
- In the course of employment (takes self out of employment) (sleeping)
- Out of province (substantial connection)
- Right to sue
- Worker (test)
The applicants brought this application seeking an order that the respondent was barred from suing with respect to a February 10, 2020 motor vehicle accident, under the WSIA. The left back corner of the applicant's trailer struck the right back top corner of the respondent's trailer. The respondent had been asleep in the sleeper of this truck when the collision occurred.
The Vice-Chair denied the application. The respondent did not have a substantial connection to Ontario at the time of the accident. His right to sue the applicants was not removed by the WSIA.The Vice-Chair found that the respondent was a worker of a schedule 1 employer at the time of the accident. In addition, he was in the course of employment when the accident occurred. Tribunal cases have held that cases in which a truck driver is sleeping when the accident occurs, and thus in the mandatory rest period, continue to be in the course of employment in any event, as they are in a truck owned by the employer, during a rest period that is mandated by law as part of their employment, and are in the truck at that location only for the purposes of their employment. Whether they are paid for that activity, or considered on "duty," is not determinative.While the respondent was a worker in the course of his employment, he was a non-resident and did not have a substantial connection to Ontario when the accident occurred on February 10, 2020, as per OPM Document No. 12-04-12: "Non-Resident Workers." The respondent traveled through Ontario as a corridor to the USA and thus a substantial connection was not established. The respondent's primary destination was the USA. The Vice-Chair accepted that the respondent traveled through Ontario for the purposes of picking up and delivering in Quebec and the USA. His activities in Ontario while doing so, such as fueling and buying coffee, were incidental to that travel but did not involve commercial activities advancing his employer's goals (see Decision No. 612/92). The Vice-Chair noted that the respondent's payment structure, in that he was paid a per mile rate, did not define when was working or in the course of his employment. The Vice-Chair therefore did not accept that a totaling up of the number of hours of driving time equated with "days worked." As noted in Decision No. 612/92, "working" is not the same as being "in the course of employment."