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WSIA - 'Course of Employment'. Colella v. Ng
In Colella v. Ng (Div Court, 2024) the Divisional Court considered a JR from "decisions of the Workplace Safety and Insurance Tribunal ... that resulted in a determination that the Applicant ... was barred from proceeding with a civil action claiming damages for negligence from the" respondent employer.
Here the court considers whether the applicant was acting "in the course of employment" at the time of the accident:[18] The Tribunal’s determination of whether or not Colella was barred from bringing a claim against the City hinged on the question of whether Colella was “in the course of employment” when he was struck by the truck driven by Ng as provided for in the Act.
[19] In making the determination as to whether Colella was in the course of employment, the Tribunal referred to the WSIB Operational Policy Manual 15-02-02 (the “OPM”) which provides some guidance on when an accident will be found to be in the course of employment. The OPM provides that the determination of that question will depend primarily on the circumstances relating to place, time and activity surrounding the accident.
[20] The undisputed fact is that Colella was near, but not at, his place of work when he was injured.
[21] It is also undisputed that the accident occurred during Colella’s regular work hours, albeit on a break.
[22] The interpretation and application of the “activity surrounding the accident” criterion depends on a consideration of whether Colella’s brief trip to and from the bank should be considered to have been in the course of his employment.
[23] The Tribunal considered the facts submitted in light of all these factors and concluded that Colella’s activity was in the course of employment when the accident occurred. In doing so, it relied upon all the evidence, including the fact that Colella had been issued a cell phone by the City that he was required to carry at all times during his workday and to answer when it rang, even while on a break. Colella’s employment responsibilities therefore required him to be reachable by telephone in order to address any job-related issues that arose, even while on a break or at lunch.
[24] As a result of this analysis, the Tribunal found that the City retained control over Colella while he walked to and from the bank when the accident took place. It noted that Colella’s short walk from his office to the bank and back was only a brief interlude that happened in close proximity to his place of work and while he remained in potential contact with his office and clients, as was expected of him. Accordingly, his activity was found to be within the course of his employment.
....
[39] The Tribunal ultimately determined that the City retained control over Colella during his lunch break by requiring him to carry and answer a cell phone at all times if contacted for work-related purposes. The Tribunal recognized the comparative novelty of the case and considered the earlier case law and its possible application to the specific facts of the case. The Tribunal addressed all of the cases dealing with the concept of retained authority relied on by Colella and found on the facts before it that the City did retain authority over him even while offsite and on a break. The Tribunal concluded that Colella was therefore in the course of employment at the time of the accident. . Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal
In Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered a JR by an employer in a WSIA case, here where a successful claimant employee had been injured while driving home from work under the influence of alcohol.
In these quotes the court considers the effect of alcohol-consumption on whether the claimant was "in the course of his employment" at the time:(2) Did the Tribunal unreasonably conclude that Mr. Vaughan was still in the course of his employment when the accident occurred?
[16] Interpaving argues that it was unreasonable to conclude that Mr. Vaughan was still in the course of his employment when the accident occurred, because (1) the Tribunal should have inferred, on the evidence, that he stopped to purchase beer after he left work, and (2) because his decision to drink to excess severed the nexus between of employment.
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[20] With respect to the second argument, the Tribunal concluded that the extent of Mr. Vaughan’s alcohol consumption was not relevant to the determination of whether he was in the course of his employment when the accident occurred. This was not an unreasonable determination, given the Tribunal’s findings of fact about the circumstances in which the accident occurred.
[21] Interpaving relies on Decision No. 625/17, 2017 ONWSIAT 2325 (CanLII) to argue that Mr. Vaughan’s intoxication necessarily implied that he could not be in the course of his employment. Decision No. 625/17 does not stand for the broad proposition that the quantity of alcohol or drugs consumed alone may sever the employment nexus. In fact, at para. 29, it explicitly endorses that “drinking, in and of itself, is not sufficient for a panel to conclude that a worker's accident did not arise out of and in the course of his employment”. The panel in Decision No. 625/17 recognized that the circumstances surrounding the drinking and the accident must be considered.
[22] In Decision No. 625/17, a worker was staying at a hotel on a work trip and had begun drinking after the end of the workday, when he did not expect to do any more work duties until the next day. In these circumstances, the worker was found not to be performing work duties in the lead-up to the injury. These facts are readily distinguishable from the facts found by the Tribunal in this case.
[23] The Tribunal found that Mr. Vaughan was engaged in work duties, driving two coworkers from the site, when he was injured. The Tribunal did not review each of the factors considered in Decision No. 625/17. It was not required to do so, however, so long as its determination on this point, and the analysis underlying the determination, were reasonable. They were, in my view.
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