- In the course of employment (personal activity)
- Right to sue
- Worker
On November 8, 2019, RM fell down a flight of stairs that was accessed by an establishment, a bar at the time. RM passed away following the accident. At the time of the accident, the owner of the establishment was on a medical leave and had arranged for RM to assist in running the establishment in the afternoons/evenings. The defendants sought a declaration that the plaintiffs were statute barred from pursuing the civil action. The application was dependent on finding that RM was a worker within the meaning of the WSIA at the time of his accident and that he was in the course of his employment.
The application was denied. Benefits under the WSIA are limited to workers, their survivors or spouse, and child or dependent as set out in section 26(2) of the WSIA. A survivor under section 2 of the WSIA is defined as "a spouse, child or dependent of a deceased worker". There was no evidence to indicate that the worker's parents, sister or niece met the definition of a survivor within the meaning of the WSIA. Their claims were not statute barred under section 31 of the WSIA.The claim of RM's spouse was also not statute barred. The Vice-Chair found that RM was not involved in a work-related activity at the time of the accident; and therefore, the question of whether RM was a worker within the meaning of the WSIA was moot. The Vice-Chair considered the following factors in making this finding: a) the bar was closed to the public at the time of the accident; b) the individual that RM was socializing with at the time of the accident was not a patron of the bar/establishment; c) RM was not required to socialize with the individual in question as part of his work duties; d) RM was not permitted to consume alcohol during his shifts; and, e) the excessive consumption of alcohol within a short period of time was a significant contributing factor, if not the predominant cause, for the accident. The activity that RM was engaged in at the time of the accident did not constitute a "brief interlude" within the meaning of WSIB policy. The evidence did not demonstrate, on a balance of probabilities, that RM intended on returning to any work-related duties or leaving the property that night due to a high level of intoxication. The nature of the activity RM was engaged in at the time of the accident was entirely personal. Moreover, the consumption of alcohol, which was not permitted during his shift, represented a significant deviation from the worker's regular employment activities. RM had also likely only started consuming alcohol after he had closed the bar for the night. The Vice-Chair did not find that there was any work-related nexus between his activity at the time of the accident and his work duties.