FD: FD: DT:D DN: 650/91 STY:N. Turk Investments Ltd. v. Opar PANEL: Hartman; Ferrari; Chapman DDATE: ACT: KEYW: Right to sue; In the course of

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1 FD: FD: DT:D DN: 650/91 STY:N. Turk Investments Ltd. v. Opar PANEL: Hartman; Ferrari; Chapman DDATE: ACT: KEYW: Right to sue; In the course of employment (parking lots). SUM: The defendants in a civil case applied to determine whether the plaintiff's right of action was taken away. The plaintiff fell on ice in the parking lot of an industrial plaza. The plaintiff brought the action against her employer and the against the owner of the plaza. The plaintiff fell on her way to work in a portion of the parking lot that was under the control of the owner of the plaza. It was not a section of the lot that was designated for the employer. The accident occurred about 10 feet from a back exit from the employer' premises. This was not the usual entrance to the employer's premises. The predominant risk to which the plaintiff was subject was that of the general public and users of the paved area. This area was not under control of the employer. The Panel found that the plaintiff was not in the course of employment. Since the plaintiff was not in the course of employment, her right of action was not taken away against either her employer or the owner of the property. [14 pages] PDCON: TYPE: DIST: DECON: Decision No. 733/87 (1988), 8 W.C.A.T.R. 183 consd; Decisions No. 411/87 refd to, 1266/87 consd, 543/90 consd BDG:Operational Policy Manual, Document no IDATE: HDATE: TCO: KEYPER: XREF: COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 650/91 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c.539, as amended. AND IN THE MATTER OF an action commenced in the District Court of Ontario at the District of York as Action No /85. B E T W E E N: N. TURK INVESTMENTS LIMITED, AMPHENOL CANADA INC., carrying on business as AMPHENOL CANADA, ALLIED CANADA INC., and LUCIANO MARTELLI, carrying on business as MARTELLI LANDSCAPING MAINTENANCE Applicants in this application and Defendants in the District Court of Ontario Action. - and - MARIA OPAR AND PETER OPAR Respondents in this application and Plaintiffs in the District Court of Ontario Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 650/91 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the District Court of Ontario, at the District of York, as Action No /85. B E T W E E N: N. TURK INVESTMENTS LIMITED, AMPHENOL CANADA INC., carrying on business as AMPHENOL CANADA, ALLIED CANADA INC., and LUCIANO MARTELLI, carrying on business as MARTELLI LANDSCAPING MAINTENANCE Applicants/Defendants - and - MARIA OPAR AND PETER OPAR Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 650/91 This Section 15 Application was heard in Toronto on September 5 and October 4, 1991, by a Tribunal Panel consisting of: R.E. Hartman: Vice-Chairman, S.L. Chapman: Member representative of employers, M. Ferrari : Member representative of workers. THE SECTION 15 APPLICATION This application arises out of an action commenced in the District Court of Ontario as Action No /85. In that action, Maria Opar and Peter Opar are suing N. Turk Investments Limited, together with Amphenol Canada Inc. and Martelli Landscaping Maintenance, for damages resulting from a fall on March 23, At the hearing on September 5, 1991, the Applicant, N. Turk Investments Limited ("Turk") was represented by J. Dunn, counsel. A co-applicant, Amphenol Canada Limited ("Amphenol") was represented by W.G. Scott, counsel. A third co-defendant, Martelli Landscaping Maintenance ("Martelli") was notified but was not participating. The respondents, Maria and Peter Opar, were present and represented by D.M. O'Leary, counsel. H. Koba was present as an interpreter in the Ukrainian language. Present as observers were A.W., A. Balevi, Tribunal Counsel Office, and G.S., student-at-law. N. Turk, president of N. Turk Investments, attended as a witness for the Applicant, Turk. The hearing was reconvened, on October 4, 1991, for oral submissions from Messrs. Dunn, O'Leary and Scott. THE EVIDENCE The following documents were marked as exhibits: Exhibits #1, #2, #3: Section 15 Statement and book of authority prepared by Turk, together with supplementary statement of law; Exhibit #4 Exhibit #5 Exhibits #6, #7 Exhibit #8 : Examination for Discovery transcripts brief submitted by Turk; : a Section 15 Statement prepared by the co-applicant, Amphenol. : the Section 15 Statement and book of authorities for the Respondents, Mr. and Mrs. Opar; : articles of incorporation for Turk;

5 2 Exhibit #9 Exhibit #10 : a letter from the Tribunal Counsel Office to the parties, dated April 30, 1991, enclosing a diagram of the site drawn by a WCB investigator on January 28, 1985; : a lease agreement, dated January 4, 1984, between Turk and Amphenol; Exhibit #11 : Memo #1 from the WCB claim file, dated January 29, 1985; Exhibit #12A-12E : originals of five photographs copied in Exhibit #6; Exhibit #13 : a photograph of the easterly wall of Unit #15; Exhibit #14 : an extract from the WCB claim file, Memos #10 and #11, dated November 1984; Exhibit #15 : a July 6, 1984, letter from Dr. Wolf to Dr. P. Matzko, regarding Mrs. Opar; Exhibit #16 : WCB's Operational Policy, Document # Also before the Panel were sections 1 to 3 of the Occupier's Liability Act and a list of transcript references relied on by Mr. O'Leary. In addition to the above documentary evidence, the Panel heard sworn testimony from Mr. Norman Turk and Mrs. Opar. Both were questioned by their representatives and the Panel. THE NATURE OF THE CASE On March 23, 1984, at approximately 6:50 a.m., Mrs. Opar was walking across a parking lot adjacent to a single story building at 20 Milford Drive in Scarborough. This was an industrial plaza owned by Turk. It had 16 units and the employer of Mrs. Opar, Amphenol Canada Inc., leased and occupied Units #11 to #16. It is the submission of the Applicant Turk that Mrs. Opar fell about seven feet from the fire exit door of Units #14, #15 or #16, and that this area was kept free of ice and snow by an Amphenol employee. Therefore, she was on her employer's premises and within the course of her employment. It was submitted that Turk also had employees in the course of their employment at the time of the fall and therefore section 8(9) should apply to take away Mrs. Opar's right to bring an action against Turk. It is the submission of the Applicant Amphenol, that its premises did not extend to the area of Mrs. Opar's fall. It was submitted that this area was under the control of Turk and/or Martelli since Turk maintained the "common outside area", a term defined in the lease between Amphenol and Turk. However, Amphenol contended that Mrs. Opar's injuries were sustained "while she was performing an activity incidental to her employment, i.e. arriving at work at the appropriate hour and in an area adjacent to the premises of her employer which is an accepted means of access to those premises". Therefore,

6 3 Amphenol argued Mrs. Opar was entitled to benefits under the Act and could not bring an action against her employer. In the alternative, Amphenol sought a declaration that no damages were recoverable against it by reason of section 8(11) for any portion of negligence caused by it. Specifically, Amphenol asked that any order of the Tribunal: include a proviso that should the (Tribunal) determine that Mrs. Opar is not entitled to benefits under the Act because she was not injured on the premises of her employer, and should a civil court make the inconsistent finding that Amphenol is liable to Mrs. Opar because Mrs. Opar fell in an area occupied or controlled by Amphenol, or a finding that Amphenol and Turk and/or Martelli were jointly negligent and are jointly liable to Mrs. Opar, Amphenol shall be entitled to re-attend before the Board (Tribunal) for a re-determination that Mrs. Opar and her dependents are entitled to benefits under the Act in accordance with the factual findings of the court. It was the position of the representative for the Respondent, Mrs. Opar, that it was a well established principle that an accident occurring while an employee is travelling to or from work is not compensable. He cited the WCB's determination in 1984, following an investigation of the accident site by the WCB, that Mrs. Opar's accident was not covered by the Act. It was submitted that there was no new evidence submitted by the Applicant since the WCB's investigation except for Mrs. Opar's statement, at her Examination for Discovery, that she fell at a point closer to the fire exit door than previously stated. It was argued that the area adjacent to that door was outside Amphenol's control and did not form part of her "employer's premises", an exception to the "going and coming" rule set out in WCB policy. As well, it was submitted that no worker of Martelli and/or Turk was in the course of his/her employment at the material time as required by section 8(9). Even if the Tribunal found Mrs. Opar to be in the course of her employment, it was submitted that she would still have a right of action under section 8(1) as against Martelli and Turk. In summary, at issue is Mrs. Opar's right to bring an action against Amphenol, Turk and Martelli. THE PANEL'S REASONS This case raises the apportionment or sphere of risk intended to be covered by workers' compensation legislation. The Panel will review briefly the background information with respect to the circumstances of the fall on March 23, 1984, which gave rise to the civil action in this application. We will then make factual findings and determine the status of the parties to that action, if any, under the Workers' Compensation Act.

7 4 (i) Background information (a) Location of accident As stated, Mrs. Opar was employed by Amphenol, a small manufacturing industry, which leased premises in an industrial mall at 20 Milford Drive in Scarborough. This mall is located on the south side of Milford Drive, a street which runs east and west. The mall itself is L-shaped, with the short end of the L facing east. All units spanned the width of the building. The entrances to all units were on the west side, each with a raised platform leading to double glass doors. On the eastern side of the building, each unit had a garage-type door and a single metal door, called a fire exit door, with no raised platform or step. The unit doors formed a pattern of two fire exit doors, side by side; two garage/receiving doors, two fire exit doors, etc. On the south end of the property is a railway track. There is no car or pedestrian access from the south. The property is fenced on the west side. The north end of the mall faced Milford Drive. Other than some landscaping at the north end, the remainder of the property was paved with driving and parking areas surrounding the building in a U-shape. The pavement of the parking lot on the east side extends to the east wall of the building. Mr. Turk advised that there was no fence along the east lot line which divided two properties owned by Turk, #10 and #20 Milford. The paved areas of these two properties ran together with no distinction except for painted lines. It is not disputed that the fall occurred somewhere on the paved area east of the easterly wall of the building. The exact location, however, of the fall is disputed. The Panel had before it various statements as to the location of Mrs. Opar's fall, which included outside the fire exit doors to Units #14, #15 or #16, or at varying distances from the building. Memo #1 of the WCB file records a conversation with Mrs. Opar on January 28, 1985, in which she states that she fell "approximately 7' from the back door from the accident employer's last unit." In a letter from Dr. Wolf, a treating doctor, dated July 6, 1984, Mrs. Opar apparently described the accident to him as follows: "She fell on some ice when opening a door a work." According to Mrs. Opar's testimony at the hearing, she fell near the fire exit door of an Amphenol unit, probably Unit #14. Mrs. Opar has been consistent in this recollection at least since December 12, At her Examination for Discovery on that date she indicated, by gesturing, a distance which was estimated by those in attendance as approximately ten feet. She indicated a similar distance by gesture, at the hearing before the Panel. The Panel had before it the transcript of the examination for discovery of Mr. J. Ross, general foreman for Amphenol. He did not recall employees parking in front of the easterly doors because the back parking lot had a slope on it and most preferred parking on the front or west side of the units, where the cafeteria, cloak rooms, and punch clock were located. Employees without cars, however, often used the easterly door as it was on a more direct route to and from the bus stop. According to Mr. Ross, Mrs. Opar's accident was reported to H.S., her foreman, around 9:30 a.m. on March 23, 1984, and H.S.'s "understanding was that she fell in the parking lot somewhere around the area of Units #13 or #14 away from the wall". When asked at the

8 5 examination for discovery to indicate the distance "away from the wall", Mr. Ross said he went to the fire exit door with H.S. who gestured a distance which appeared to Mr. Ross to be "30-40 feet away from the wall". (b) Owner of 20 Milford The property at 20 Milford was owned by Turk. Turk was in the business of purchasing lands, erecting buildings for sale or lease, primarily leasing. Leased properties were then managed or maintained by Turk. As president of Turk in 1984, Mr. Turk "did everything", buying the land, supervising the subcontractors, leasing, going to see about any complaints, etc. He said that all work was subcontracted, including maintenance. Mr. Turk's two brothers, with ostensibly the same duties as he had, were also directors and drew money from Turk, which Mr. Turk characterized as wages, but on his testimony appeared more probably dividends. He stated that the office was run by a person named Carol who was self-employed and received money semimonthly with no deductions. She would receive calls from tenants, pay bills, and call contractors as needed. (Her successor had a slightly different arrangement with the company but she was not with the company on the date of the accident.) (c) Property leased to Amphenol In the lease agreements of January 1982 and January 1984, the premises leased are outlined in red on a sketch, and consist only of the building units. "Demised premises" are defined in the lease to include the portion of the building occupied by the tenant and also "the tenant's proportion of area of any common parts of the building such as hallways, electrical and meter rooms." "Common outside areas" are defined exclusively to mean "all of the lands described in "Schedules (a) and (b) not for the time being covered by any building (other than any service building for the general benefit of all tenants of said lands) and shall include any improvements thereon and thereto such as tool sheds, lighting standards, parking signs, lawns, sidewalks, parking areas, etc." Amphenol is given "the exclusive use and rights of all parking areas surrounding the said units,... as outlined in Schedule B." Schedule B delineates 14 "exclusive use" parking spaces along the westerly fence, and 20 parking spaces abutting the southerly wall of Unit #16. Ten parking spaces along the west wall of Units #15 and #16 are delineated but not labelled "exclusive". No parking spaces are allocated, exclusive or otherwise, along the easterly wall of the building. However, there are 13 exclusive parking spaces at the eastern property line between #10 and #20 Milford. A term of the agreement provides that tenants are to keep "the entrance ways and all steps and platforms leading thereto clear of all snow, ice and debris." The tenant agrees to pay the landlord as "common expenses": As additional rent, by monthly installments to be reasonably fixed from time to time by the landlord, its proportionate share of the costs of cleaning, snow removal, gardening, supervision, the cost of the security system for the sprinklers, water, utilities, including lighting, sewage, maintenance fee, policing, painting or the outside of the entire building and service rooms and

9 6 maintenance, including repairs, maintenance and replacements of paving, curbs, walkways, landscaping and drainage as may from time to time becomes (sic) reasonably necessary and other costs which may reasonably be incurred with respect to the common outside areas and facilities as herein defined. The agreement further provides that the common outside area, as distinct from the demised premises, is to be maintained at the sole discretion of Turk. Essentially, Turk maintains the area as it sees fit throughout the year and then apportions the year's costs to all the tenants at the end of the year. General liability insurance is to be kept by the tenant for damages or injuries "arising out of the use, maintenance and repair of the demised premises and/or the business of a tenant or any sub-tenant...and may at tenant's sole option exclude coverage for negligence by the landlord or its agents or servants." Amphenol also indemnifies the landlord for damages "injury or loss suffered or sustained by any person or persons in or about the demised premises...save to the extent that the same may have been caused or contributed to by the negligence of the landlord, its servants or agents." (d) WCB consideration of accident It should be noted that Mrs. Opar originally received compensation benefits for a six month period of lost time resulting from the fall, based on an Employer's Report which described the accident as occurring in the "company back parking lot". It was not until November 1984 that Amphenol contacted the Board redefining the area as a shipping/receiving area used for trucks and stating that while it had designated parking areas on the east side of the building, the area in which she fell was in the general parking area not the exclusive parking area. A WCB Memo to File documents a WCB call to Amphenol on November 7, 1984, in which Amphenol advised that Mrs. Opar's "accident occurred in a parking lot which is not leased, owned or maintained by the employer" and in the "general parking area and not in a designated parking area". The WCB concluded that in order for Mrs. Opar's claim to be allowed, since the accident occurred before the commencement of her shift, it must be established that her employer had "full and complete responsibility of the parking lot or have control and supervision". It concluded after investigation that the site of the fall was "not under (Mrs. Opar's) employer's control", and initial entitlement was denied. (e) Evidence regarding control of the parking lot area where Mrs. Opar fell The maintenance of the paved areas at 20 Milford was under the primary control of Turk. That Turk recovered its costs through the lease is a factor which does not diminish this control. In exercising this power to maintain the area, Turk hired subcontractors. With respect to snow removal, Martelli held the contract with Turk which covered the period from November 1, 1983, to March 31, Under this contract, Martelli would plow the parking area and the driveways coming in from Milford Drive when there was an accumulation of two inches of snow. (The sidewalks or raised area on the western side of the

10 7 building remained the tenant's responsibility under the lease.) Ice removal was not specifically covered. Martelli would salt the area on request a few times a year. According to Mr. Turk, Martelli's obligation was to do the job, not to inspect to see whether the job needed doing. He said that on occasion tenants would call and ask for salt and were given Martelli's telephone number directly. Mr. Turk said the building was designed to have only westerly entrances. According to the examination for discovery of John Ross, the general foreman of Amphenol, Amphenol "took it upon itself" to remove the snow and ice in front of the easterly door used by its employees. Mr. Ross testified that an Amphenol employee would shovel snow and throw ice melter "like a person throws seeds, probably eight or ten feet" from the rear easterly door. Essentially, it was said to be the employer's practice to clear the easterly area "whenever it was necessary". The Panel did not have direct testimony from the person responsible for this clearing nor did it have information as to what specifically was or was not done on March 23, 1984, regarding ice or snow removal. (ii) The Panel's conclusions (a) Location of fall The Panel accepts the evidence of Mrs. Opar that she fell on the pavement about ten feet from the wall of her employer's premises. Whether this was in front of the fire exit door to Units #14, #15 or some other unit was unclear. (Units #14 and #15 are side by side. If, however, she fell by the door of Unit #13 she would be 30 or more feet from Units #14 and #15's exit doors.) The Panel prefers the direct testimony at the hearing of the Respondent, Mrs. Opar. The Panel notes that the testimony of Mrs. Opar, that she fell ten feet away from the rear door of Units #14 or #15 is a statement against interest. In summary, the location of the fall, accepted by the Panel for the purposes of this application on a balance of probabilities, was approximately ten feet from a fire exit door of her employer's premises, occasionally used for entry. (b) Was Mrs. Opar in the course of her employment at the time of the fall? A general compensation law rule is that persons travelling to and from work are not covered by the Act. An exception was created by the WCB to this "going and coming" rule by Operational Policy Manual, Document # , which provides that workers are in the course of employment "upon entering the employer's premises at the proper time, using an accepted entrance" but are not in the course of employment "when they leave the premises unless for work". The employer's premises are defined as "the building, plant or location of work, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways and private roads." For injuries in parking lots to be compensable, WCB policy provides that the parking lot must be owned or leased by the employer and the condition of the

11 8 lot must cause the accident (when driving, but not when walking). Dealing with plazas and malls, the policy states that workers are not in the course of employment "in public parking areas not under the employer's control." An exception exists where workers are injured "in parking spaces regulated and allocated by the employer." The focus of the WCB's exception to the general rule is on the employer's sphere of risk and what is a reasonable extension of it. However, the extension of risk to designated parking areas but not to the surrounding areas puts a strain on the logic somewhat as an employer's physical control over a parking space is often no more than that over the non-designated areas of a parking space. A shift is made from physical control to legal control. Here Mrs. Opar fell in a "non-designated area", both legally and physically outside her employer's control. The Applicants submit that Mrs. Opar's risk could not be described as that of the general public because the fall occurred in an area remote from residential homes and on an industrial mall site which was not frequented by the public other than those doing business or working for the companies in that mall. The Applicants referred to Decision No. 1226/87 as identical to this case. In that case, there was a pathway leading from the parking lot to Science Centre North, a building open to the public for educational and recreational purposes. A worker employed by a gift shop in the building, fell on this pathway. It was determined that since the worker's sole purpose for being on the premises was to fulfill her work obligations, and since she took the most direct route and had parked in an area designated as employee parking, she was in the course of her employment even though she was not on her employer's premises, but on those of Science Centre North. The Panel in Decision No. 1226/87 noted that it would have been physically impossible for the worker to be on her employer's premises, which was the gift shop, without first having been on the premises of Science Centre North which totally surrounded her employer's premises. That Panel felt that the worker may have been subject to the same risks as the general public while on the Science Centre North's premises, but those risks were completely unavoidable by her even though inclement weather conditions may have kept away the public at large. That option was not available to the worker who had no choice if she was to fulfill her employment obligations. The Applicants also relied on Decision No. 733/87. That Panel noted: There is no legislative guidance for the interpretation of the phrase "in the course of employment" in section 8(9). It is only under the WCB policy, that the determination of whether one "in the course of employment" when going to or coming from work depends on whether the employee has reached the "employer's premises". The fall occurred on a paved area of property owned by Turk Investments which had a contract with Martelli for the clearing of snow. The fall occurred outside a unit occupied by Amphenol, the worker's employer. She was on her way to work, taking the most direct route and fell about ten feet from a rear fire exit door used for an entrance by some employees. What is the

12 9 appropriate allocation of risk? Was the risk more properly characterized as employment-related as Mrs. Opar was in that spot by reason of her relationship with Amphenol? While she was on the site by reason of her employment, she could have entered by either door. She chose the back route which appears to have been less stringently maintained and clearly not designed for entry. This was done with the full apparent consent of her employer who took some voluntary steps to clear a small area in front of the door. In Decision No. 543/90, an entitlement case, the worker fell on some ice in a parking lot which was not controlled by the employer. No specific arrangements had been made with the employer for her to park in this parking lot and she had no exclusive or other right to park in that location. Certain spaces had been allocated by the employer for its use in this parking lot, but this worker was not part of that arrangement. It was argued that since the employer was aware of the worker's practice, it condoned her action. The Panel in Decision No. 543/90 disagreed with the Panel in Decision No. 1226/87 to the extent that it did not find that entitlement followed when a person was in a location "with good intent to fulfill her work obligations". It was felt that this was contrary to the principle that a worker is not compensated for accidents outside the workplace resulting from risks which are common to the general public. Any worker leaving home and heading for work can be considered to be doing so "with the clear intent to fulfill work obligations". The Panel added: The test is whether or not the accident occurred while the worker was fulfilling an obligation toward the employer under conditions controlled by the employer at the time of the accident....in many aspects, the circumstances of this case are not different than those examined in the case considered by the Panel in Decision No. 369/87 (September 10, 1987) where the majority found that a worker injured in the parking lot of the plaza where she was employed as an office worker was not entitled to compensation benefits. The employer was a tenant in the building and, indirectly, was contributing to the maintenance of the parking lot. However, no parking space was allocated to the worker by the employer and the risks encountered in the parking area were considered common to the general public using the plaza parking lot. The majority of the Panel in that case held the worker "did not enter the sphere of her employment" till she entered the actual place of employment. In this case, the worker fell at least ten feet from the point at which her employer's premises began. The employer's decision to sprinkle salt and/or shovel an area immediately adjacent to its rear fire exit door is not enough, in itself, to extend its premises. Indeed, Amphenol was itself ambivalent about this action. In its communications with the WCB, it stated that this area was not controlled by it but, for the purposes of this application, it was. On the basis of the general rule, and the Board's policy setting out exceptions to it, the Panel cannot conclude that Mrs. Opar's fall occurred in the course of her employment. Mrs. Opar was not in a parking lot area

13 10 allocated to her employer solely for its use. The usual entrance was on the other side of the building. The door used was a fire exit. While entry was condoned and/or accepted by the employer through this door, Mrs. Opar had not, on the preponderance of evidence, come near to utilizing it. The fall in the paved area was in a parking lot neither leased nor owned by the employer. The voluntary sprinkling of ice melter "as necessary", in the Panel's view, is not sufficient to turn this area into an "employer's premises" as contemplated by WCB policy, even if it extended to the area of Mrs. Opar's fall, which the Panel cannot conclude on the evidence before it. The Panel considers that the predominant risk to which Mrs. Opar's was subject at the time of her fall was that of the general public and users of the paved area not demised to her employer under its lease. In WCAT Decision No. 411/87, it was found, on an entitlement appeal, that a worker had left the area of general public risk and entered the sphere of employment because under the terms of a lease and in practice, her employer (a tenant in an industrial mall) had assumed responsibility for the area of the fall. This is not the case here. (c) Right to bring an action against Applicant Turk Turk Investments was not registered with the WCB as a Schedule 1 employer. However, given the Panel's determination with respect to Mrs. Opar's status, it is not necessary to consider Turk's status further. Mrs. Opar's action against Turk may continue as nothing in Part 1 of the Act applies to take away that right. (d) Right to bring an action against Applicant Amphenol The solicitor for Amphenol argued that the whole parking area surrounding its units at 20 Milford Drive was under Amphenol's exclusive use and control for the purposes of the Occupier's Liability Act. Amphenol also submitted that an employer can "maintain" a parking lot without having "exclusive use". As the Panel advised at the hearing, the Panel's authority to determine Amphenol's status stems only from the Workers' Compensation Act. Its status and/or obligations under the Occupier's Liability Act is not for this Panel to determine. Mrs. Opar, in relation to Turk and Martelli, may reasonably be considered a member of the general public. As to her relationship with Amphenol, the statutory language of sections 8 and 14 differ slightly in the phrasing. Section 14 provides: The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to him..., While in the employment of such employer, and no action lies in respect thereof. (emphasis added)

14 11 The solicitor for Amphenol did not argue for the application of section 14. It was his position that Mrs. Opar's accident did arise out of and in the course of her employment and she should receive benefits under the Act. The WCB in this case initially granted entitlement on the basis of its understanding that Mrs. Opar fell in a parking lot controlled by her employer. When advised by Amphenol that the area of the fall was out of its control, the Board then, in applying its policies, determined she was not so entitled. The Panel considered whether the slight difference in phraseology between sections 8 and 14 was of significance in this Section 15 Application on the facts before it and concluded it was not. Mrs. Opar was not in the course of her employment with Amphenol at the time of the fall. At the hearing, Amphenol argued that the Panel's focus should be on the alleged wrong of the employer and whether or not it is correctable by the employer, stating that it was patently unfair for a worker to take the position that she was not in the course of employment and then plead fault on the part of her employer. The Panel notes that in this case it was the employer who took the position Mrs. Opar was not in their employment at the time of the fall. The Panel has considered Amphenol's request for an order with a proviso that should the court find it negligent, Mrs. Opar will be entitled to benefits "in accordance with the factual findings of the Court". The Panel cannot make such an order. Entitlement to benefits under the Act is subject to an appeal process set out in the Act. As far as this Panel is aware, the WCB's decision to deny benefits has not been appealed through a final level at the WCB and is not before this Tribunal. The issue before this Panel was only whether Mrs. Opar's right to bring an action was taken away. Amphenol also argued that Martelli and Turk's rights to counterclaim against it were precluded by section 8(11). Turk's solicitor stated that these actions were not before the Tribunal in this application. THE DECISION The applications are denied. Mrs. Opar's right to bring an action against N. Turk Investments and Amphenol Canada Inc. has not been taken away by the application of Part 1 of the Act. The Panel makes no determination regarding the counter-claims against Amphenol as these were not part of the application before it. Since no party to the action was removed by section 8(9), the exception to joint and several liability set out in section 8(11) does not apply. DATED at Toronto, this 8th day of July, SIGNED: R.E. Hartman, S.L. Chapman, M. Ferrari.