In a recent Right to Sue Application (Decision No. 229/23), the Workplace Safety and Insurance Appeals Tribunal addressed a potential grey area in the legislation that appeared to arise when applying the exception under section 28(4) of the Workplace Safety Insurance Act (WSIA).
In Decision No. 229/23, JM was on a work retreat with her colleagues when she was injured while operating a snowmobile. JM was participating in a guided tour on a trail in the Haliburton wilderness at the time the accident occurred. JM had rented the snowmobile from Haliburton Sled Rental (HSR). The guided tour was being conducted by an employee of HSR named MA. While on the tour, JM lost control of the snowmobile and suffered serious injuries. She sued HSR for damages. HSR then commenced a Right To Sue Application before the Tribunal to have JM’s civil action taken away pursuant to Section 28(1) of the WSIA.
There was no dispute that JM was a “worker” for a “Schedule 1 Employer” who was in the course of her employment at the time of the accident. Also, the parties agreed that HSR was in fact a “Schedule 1 Employer” and MA was a “worker”. As such, it would appear that all of the conditions to bring a successful Right to Sue Application had been satisfied. However, the issue at the hearing was whether the exception under section 28(4) of the WSIA applied. It reads as follows:
(4) Subsections (1) and (2) do not apply if any employer other than the worker’s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment.
Essentially, the exception under section 28(4) allows a “worker”, who falls under section 28(1) or (2) of the WSIA, to commence an action against another “Schedule 1 or 2 employer” or “worker” if the injury arose out the operation of motor vehicle, machinery, or equipment supplied by an employer, other than the “worker’s” employer, who did not also supply “workers” to operate the motor vehicle, machinery, or equipment.
The Tribunal explained the rationale of the exception under section 28(4), citing Decision No. 275, April 7, 1987:
It draws a distinction between a situation where an employer merely supplies a vehicle and a situation in which that employer also supplies workers. If the employer also supplies workers section 14 and 8(9) [now Section 28 (4)] apply and the employer is immune from suit for an injury for which benefits are payable under the Act, and he can be relieved of any portion of assessment which is otherwise liable to be charged against him. These things do not apply where the employer is merely supplying machinery. Without the essential element of the supply of a worker, who can be injured under the Act, section 8(9) does not apply. Why would this be? It seems clear that the reason is that the Workers’ Compensation Act is a statute which provides for the compensation of injured workers. It does not provide for the resolution of disputes that relate only to the supply of equipment or a plan for financing automobiles through leasing. It is not a statute which concerns itself with property damage or questions of negligence in the provision of leased vehicles. (emphasis added)
HSR argued that Section 28(4) did not apply because it had supplied a worker (i.e., MA) with the rented snowmobiles. MA was tasked with demonstrating the use of the snowmobiles to JM and the other snowmobilers on the tour. Also, MA acted as a tour guide for the group of snowmobilers. As such, it was argued that section 28(4) did not apply because HSR was “providing a worker who may be injured.” HSR argued that this differed from previous decisions involving car rental companies because in those cases the company had no further role after handing over the keys to the vehicle; whereas, in this case, HSR continued to be involved with the operation of the snowmobile even after it was rented. HSR argued that applying section 28(4) to guided tours involving motor vehicles created a grey area that was never contemplated by the legislature. In fact, there was no prior case law on point.
The Tribunal acknowledged the novelty of HSR’s argument, but concluded that this scenario did not fall within a grey area. The Tribunal held that the language of the section 28(4) was not ambiguous:
Although MA was arguably a worker, he was not supplied to operate the snowmobile rented to JM. MA was seated on and in control of a different snowmobile at the time of JM’s accident. JM was the sole operator of the snowmobile at the time of the accident.
The rental of motor vehicles, equipment or machinery for leisure, business, construction or other purposes is commonplace in Ontario; I do not find that this is an ambiguous situation which the Legislature failed to consider. It is notable, in this regard, that the statutory language of the exception has not changed significantly between the Pre-1985 Workers’ Compensation Act, the Pre-1989 Workers’ Compensation Act, the Pre-1997 Workers’ Compensation Act, and the Workplace Safety and Insurance Act.
The Tribunal held that it was immaterial as to whether MA was within proximity of the accident when it happened. MA was not operating the snowmobile that JM was riding when the accident occurred. As such, a plain reading of section 28(4) means that it applies to this particular case and the JM’s civil action is not taken away by section 28(1).
Even though this decision was not particularly ground-breaking, it did provide some rare insight into the rationale of section 28(4), which is often overlooked and misunderstood due to its dense and somewhat confusing language.
Furthermore, there is dearth of recent case law on this section which actually explains the intent and purpose of Section 28 (4), which is evident by the fact cases from the late 1980s were being cited. Considering the lack of contemporaneous case law on this matter, we were due for a remake, unlike Liam Neeson’s The Grey.
Decision No. 229/23, 2023 ONWSIAT 319 (CanLII).
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.