- Dependants
- In the course of employment (personal activity)
- Member of the family
- Right to sue
The issue in this application was whether the respondent's right of action was taken away by section 31 of the WSIA. The parents of the plaintiff had commenced a civil action which alleged negligence on the part of the defendants for a November 2021 workplace accident that claimed the life of the plaintiff. The plaintiff had been working as a security guard when he was struck and killed by a shunt truck. His employer and the driver of the truck were named among the defendants.
The Panel granted the application. The respondent's right of action was taken away by the WSIA.The plaintiff's employer pled guilty to an offence under the Occupational Health and Safety Act (OHSA). The employer pled guilty to failing, as an employer, to take every precaution reasonable in the circumstances for the protection of a worker contrary to section 25(2)(h) of the OHSA. The Panel found that both the plaintiff and driver of the truck were employees of a Schedule 1 employer and in the course of their duties at the time of the accident. The plaintiff's right of action was removed by operation of section 31 of the WSIA. The plaintiff's parents were dependants within the meaning of the WSIA and therefore entitled to claim benefits under the plan. Thus, the respondent's action, and all actions and/or crossclaims flowing from their action, were statute barred. As the employer was convicted of an offence under the OHSA, it would be an abuse of process to re-litigate the findings of the Ontario Criminal Court of Justice (see Decision No. 531/15). The Panel adopted the approach of Decision No. 1002/16, that it is not sufficient to acknowledge the finding of guilt or conviction. Rather, the Panel is required to demonstrate an understanding of the essential elements of the offence and adopt, in their entirety, the facts relied on by the trial judge to conclude that the essential elements of the offence have been satisfied beyond a reasonable doubt. The Panel was bound by the conviction and the conviction's underlying factual underpinnings, including that the worker was believed to be applying and/or removing the gladhand lock at the time of the accident.The Panel found that even if the unlocking of gladhand locks was not a regular part of the plaintiff's duties, it would, nonetheless, be ancillary to his duties. Unlocking gladhand locks was not a personal activity. Rather, this was a duty associated with the work to be performed on the job site. There was no other information of significance to indicate that the worker had taken himself out of the course of employment, that he was was performing any personal activity at the time of the accident, or that his actions constituted a significant deviation from his regular work duties. The plaintiff was in the course of his employment at the time of the accident, as was the driver of the truck. The plaintiff's right to sue was taken away by the operation of the WSIA. This extended to his estate (see Decision No. 1396/08).Further to Decision No. 1384/06, the Panel accepted that the finding of guilt under the OHSA did not remove the protections provided under the WSIA, as articulated in the case of Pasiechnyk v. Saskatchewan (Worker's Compensation Board) and reiterated in Decision No. 3096/17.