- In the course of employment (employer's premises) (construction site)
- In the course of employment (proceeding to and from work) (car pool)
- Right to sue
This right to sue application brought by the applicants (defendants) concerned an action brought by the respondent (plaintiff), who alleged he was injured in a motor vehicle accident that occurred on October 26, 2020, due to the negligence of the defendants. The worker was injured in the accident while driving to a carpool location on his way to a construction site. The issue in this case turned on whether the plaintiff was a worker in the course of his employment when he was injured on October 26, 2020.
The Vice-Chair denied the application. The respondent's right of action was not taken away by the WSIA.It usually took the worker around 45 minutes to get to the carpool parking lot. The plaintiff testified that he had to be at the carpool parking lot no later than 6:20 or 6:30 a.m. to secure his ride to the job site. Carpooling was the worker's choice. He used the carpool every day to get to the job site. His employer was not involved in his decision to carpool, and his employer had no role or involvement with the carpool. The carpool was arranged between the workers on the job site. The carpool van was provided by a construction company. The van would hold five to six people and its occupants frequently differed. The van would take him to the job site, which he had been working at for about one year. The accident occurred while on his way to the carpool location.OPM Document No. 15-03-05, "Travelling" states in part: "As a general rule, a worker is considered to be in the course of the employment when the person reaches the employer's premises or place of work, such as a construction work site, and is not in the course of employment when the person leaves the premises or place of work." In reading the relevant policies together, the Vice-Chair found that an employer's premises includes a place of work where a worker is entitled to be and includes a construction worksite (OPM Document No. 15-03-03). The place of work does not have to be controlled or owned by the worker's employer if the worker is entitled to be at that location. Furthermore, an employer may have more than one place of work depending on the circumstances.The Vice-Chair found that the plaintiff was commuting to his place of work, which was the construction worksite, when he was injured on October 26, 2020. A worker is normally not considered to be in the course of employment when travelling to or from their place of work. The plaintiff was also not travelling on his employer's business at the time as set out in OPM Document No. 15-03-05. Decision No. 83/19 endorses the principle that construction workers travelling to a fixed worksite are not in the course of employment and are commuting to a work site like any other worker who commutes to and from a regular place of work. The Vice-Chair agreed that Decision No. 83/19 distinguishes construction workers travelling to a construction worksite from the determination that they are travelling on the employer's business.The plaintiff was not in the course of his employment when the motor vehicle accident occurred, and, as such, his right of action against the applicants was not taken away by the WSIA.