A recent “right to sue” decision from the Workplace Safety and Insurance Appeals Tribunal (Decision No. 1375/20, 2021 ONWSIAT 270) considered whether a slip and fall accident that occurred in a parking lot was “reasonably incidental” to the worker’s employment and therefore, covered under the Workplace Safety Insurance Act (“WSIA”).

The case involved the applicant, Mr. Li, who was injured in a slip and fall accident in a parking lot on December 28, 2012. At the time of the accident, Mr. Li worked as a manager in the bakery department of a supermarket which is named in the decision as “S. Ltd.” Mr. Li worked a fixed schedule from 7 am – 7pm, six days per week and earned a fixed salary of $1,000.00 per week.

On the date of loss, Mr. Li left work around 7 pm and on his way home he drove to a wholesale bakery to order some products for his employer. The bakery was situated in “strip mall” that shared a common area parking lot with the neighbouring businesses in the mall. While at the bakery Mr. Li tried some samples, ordered some products, and “talked shop” with employees of the bakery. He did not purchase anything for himself and would not have gone there other than to purchase products for S. Ltd. The entire visit lasted about 30 minutes. As he left the bakery and headed towards his vehicle he slipped on a patch of ice in the parking lot.

In December 2014, Mr. Li commenced an action for damages in the Ontario Superior Court against Applied Stretch Technology (“Applied”), Colliers International (“Colliers”) and Willand Ltd o/a Willand Grounds Maintenance (“Willand”). Applied was the owner of the property, Collier was the property manager of the premises and Willand was responsible for maintaining the property. All three of these companies were Schedule 1 Employers. S.Ltd. was also deemed to be a Schedule 1 Employer despite having an inactive account at the time of the accident.

The three companies then commenced a section 31 application requesting an order that Mr. Li’s right of action with respect to the accident on December 28, 2012 be taken away.

At the hearing, the only issue to be determined was whether, at the time of his slip and fall, Mr. Li was in the course of his employment. If that question was answered in the affirmative, then Mr. Li’s right to sue would be taken away.

Mr. Li argued that he was not in the course of his employment at the time of his slip and fall for the following reasons:

  • The incident occurred after the end of his normal workday;
  • The accident occurred off of the premises of S. Ltd and even outside the premises of the bakery, in a parking lot that was not under the care and control of either S Ltd or the bakery;
  • it would be unfair to burden Mr. Li’s employer, S. Ltd, with the costs of a WSIB claim resulting from an accident that S. Ltd had no ability to prevent.

The Panel disagreed with Mr. Li’s submissions and concluded that he was in fact “in the course of his employment” at the time of the accident. The Panel held that in determining whether Mr. Li was “in the course of his employment” the decision-maker should focus on the activity of the worker at the time the injury occurred. Furthermore, the Panel noted that “one must consider the overall character of the activity being performed at the time of the injury and determine whether it was primarily work-related or primarily personal.” Considering this, the Panel held:

It is clear, in our view, that even though his employer may not have explicitly instructed Mr. Li to go the Bakery that night, his trip to the Bakery was reasonably incidental to his employment. The only reason Mr. Li was at the Bakery on the evening of December 28, 2012 was to carry out tasks related to his job as the bakery manager at S Ltd. But for his job as the bakery manager, he would never have found himself at the Bakery that night. In fact, under questioning from the Panel, Mr. Li indicated that he would not have gone to the Bakery that night had it not been to purchase products for his employer.

While we acknowledge that Mr. Li was on salary and was not paid for his time at the Bakery, a number of Tribunal decisions have found that a worker may be engaged in an activity reasonably incidental to his employment even though the activity is not being performed with the expectation of remuneration (see e.g., Decision Nos. 1575/04, 2237/06, 736/01, 62/89, 999/94, and 316/99). Board policy also does not identify payment as a factor to consider, but rather the nature of the work, the nature of the work environment, and the customs and practices of the particular workplace. (emphasis added)

Mr. Li argued that his case was similar to the case in Decision No. 381/10 where Nancy Taylor was injured after a slip and fall accident that occurred in a parking lot outside of her work premises. In that case, Ms. Taylor worked at a grocery store that was situated in a strip mall. After finishing her shift, Ms. Taylor sat on a park bench located in the mall parking lot and waited for a friend to pick her up to drive her home. Once the friend arrived, Ms. Taylor tripped as she stepped off the sidewalk into the parking lot. The Vice-Chair in that case determined that Ms. Taylor’s right of action was not taken away because she was not in the course of her employment at the time she fell, noting that Ms. Taylor was injured after work hours, was outside of her work premises, and was injured while walking to a friend’s car that was located in a parking lot that was not owned or controlled by the Ms. Taylor’s employer.

The Panel in the subject decision concluded that Decision No. 381/10 was distinguishable because Ms. Taylor had finished her shift and did not fall because she was performing an activity for her employer whereas Mr. Li had been performing a work-related task just prior to his fall. 

Commentary

This decision is a good example of how fact driven “right to sue” applications can be. The Panel relied heavily on the fact that Mr. Li’s departure from the bakery and subsequent slip and fall in the parking lot was “reasonably incidental to his employment.” On first blush, it certainly seems that Panel’s decision in this regard is somewhat arbitrary, especially when compared to the outcome in Decision No 381/10 where the Vice-Chair came to an opposite conclusion with substantially similar facts. It appears the Panel distinguished Decision No 381/10 largely because of time and space.

In Decision No 381/10, Ms. Taylor had been waiting for her friend for about 15 minutes before she tripped and fell. Also, the plaintiff “found herself in the location where she fell not because she was performing an activity for her employer but rather, because she was waiting for a ride home after her workday had ended.”

Conversely, in the present case, the slip and fall occurred immediately after Mr. Li left the bakery. Also, in terms of space, Mr. Li was walking across the parking lot because he had just visited the bakery for work-related purposes. The Panel concluded that the purpose of Mr. Li being in the parking lot at the time of the slip and fall was work-related.

With that said, it is arguable that Mr. Li’s work-related activities ceased to exist once he left the bakery given that he did not intend to go back to work; rather, he left the bakery go to home just like Ms. Taylor left her work to go home before she fell, in Decision No 381/10.

The distinction that the Panel makes between Mr. Li’s case and Decision No 381/10 is difficult to discern because there is no obvious indication as to when Mr. Li’s activities were no longer deemed to be work-related. Considering this, it would have been helpful if the Panel provided some examples of when Mr. Li would not have been considered to be in course of his employment.

For instance, it would seem likely that the Mr. Li would not have been in the course of his employment if he fell after visiting another store in the strip mall for personal reasons. It is likely that his work-related activities would have likely ended once he made his way towards the other store in the mall.

However, consider a scenario where Mr. Li traverses the parking lot without falling, is able to get into his vehicle and subsequently crashes his vehicle in the mall parking lot due to ice accumulation. Applying the Panel’s rationale to this scenario, it is quite possible that Mr. Li would still be in the “course of his employment” at the time of the MVA. But, what happens if the MVA occurred on a municipal road adjacent to the mall parking lot?

What happens if Mr. Li after leaving the bakery stops to enjoy a smoke (this is purely hypothetical as there is no indication that Mr. Li is a smoker) after a long day’s work and then slips and falls on the ice 10 minutes later. Is Mr. Li still under the ‘veil of employment’ in this scenario? How far removed from their employment, in either time or space, does one have to be before their actions are no longer “reasonably incidental to their employment”?

The distinction in these types of cases can be razor thin and will likely depend on the particular facts of the case and the trier-of-fact’s interpretation of what is “reasonable”. As such, it is difficult to suggest that this decision will have any precedential value aside from the fact that under certain circumstances the distinction of when an activity is “reasonably incidental” to a worker’s employment is not so obvious.

See Decision No. 1375/20, 2021 ONWSIAT 270 (CanLII

Ryland MacDonald
Ryland MacDonald

Ryland is an experienced litigator in defending insurance claims arising from tort actions and accident benefits disputes, including complicated catastrophic impairment claims, WSIAT disputes, loss transfer and priority disputes.

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