The right of action was taken away since the parties were in the course of employment at the time of the accident. [10 pages]

Transcription

1 DECISION NO. 270 / 93 SUMMARY Right to sue; In the course of employment (parking lots); Legal precedent (consistency). The defendant in a civil case applied to determine whether the plaintiffs right of action was taken away. The defendant and the plaintiffs were workers of the same employer. They were involved in a motor vehicle accident in the employer's parking lot as they were leaving after completion of their shift. The issue was whether the parties were in the course of employment at the time of the accident. There were two lines of Tribunal decisions regarding accidents in parking lots. One line of cases treated the location of the accident in the employer's parking lot as a determinative factor. The other line of cases considered work-relatedness and predominant risk. In the interests of consistency in adjudication, the Panel should follow the trend of the Tribunal's cases, which was to treat the location as a determinative factor. This approach should not exclude an examination of personal and employment factors to determine whether there was reason not to apply the premises test in the circumstances of any particular case. The Panel found no reason to depart from the premises test in this case. The right of action was taken away since the parties were in the course of employment at the time of the accident. [10 pages] PANEL McGrath; Rao; Chapman BDG Claims Services Division Manual, s. 3(1), p. 47, Directive 21

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 270 / 93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Brampton as Action No / 89. B E T W E E N: MEHAR GILL Applicant in this application and Defendant in the Ontario Court (General Division) Action. - and - HARNEK SINGH GILL, SAITO GILL, NAVRAJ GILL, RAVINDER SINGH GILL, SURJIT KAUR GILL, AMANDEEPE GILL and PWANDEE GILL Respondents in this application and Plaintiffs in the Ontario Court (General Division) Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 270 / 93 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Brampton, as Action No / 89. B E T W E E N: MEHAR GILL Applicant / Defendant - and - HARNEK SINGH GILL, SAITO GILL, NAVRAJ GILL,

4 RAVINDER SINGH GILL, SURJIT KAUR GILL, AMANDEEPE GILL and PWANDEE GILL Respondents / Plaintiffs WORKERS' COMPENSATION ACT SECTION 17 APPLICATION WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 270 / 93 This Section 17 Application was heard on April 30, 1993, by a Tribunal Panel consisting of: J. McGrath : Vice-Chair, S.L. Chapman: Member representative of employers, F. Rao : Member representative of workers. THE SECTION 17 APPLICATION This application arises out of a motor vehicle accident which occurred on August 16, 1987, on the parking lot of Mega Blow Moulding Ltd., located at 212B Wilkinson Road, in the City of Brampton, Ontario. The Plaintiffs' action was commenced in the Ontario Court (General Division) as Action No / 89. The Plaintiffs Harnek

5 Singh Gill, his wife Saito Gill ("Saito") and their nephew Navraj Gill ("Navraj") claimed damages for personal injuries resulting from this accident, but only Saito and Navraj are alleged to have been in the course of their employment at the time. It is acknowledged that Harnek Singh Gill was not in the course of his employment at the time of the accident and therefore his claim does not fall within the Tribunal's jurisdiction pursuant to the Workers' Compensation Act. The Plaintiffs Ravinder Singh Gill and Surjit Kaur Gill, parents of Navraj Gill, claim damages pursuant to the Family Law Act (FLA). The Plaintiffs Amandeepe Gill and Pwandee Gill, both infant sons of Saito and Harnek Gill, claimed damages in respect of personal injury sustained as a result of the accident and also as dependents of their injured parents pursuant to the FLA. Subsequent to the commencement of litigation the personal injury claims of the infant Amandeepe and Pwandee Gill were settled. Their FLA claims remain outstanding. The Defendant / Applicant in this matter is Mehar Gill ("Mehar"). The Plaintiffs / Respondents were represented by L. Bleta, barrister and solicitor with the firm of Argiris and Associates. The Defendant / Applicant was represented by B.G. Hartley, from the law firm of Gilbert, Wright and Flaherty. The employer was provided with notice of this application but it was agreed between the Tribunal and the parties that it was unnecessary for them to attend because there did not appear to be any contentious issue involving the employer. The Defendant and the Plaintiffs Saito and Harnek Gill were assisted by an interpreter in the Punjabi language. The Defendant's husband and her nephew, as well as a friend of the interpreter attended as observers. THE EVIDENCE The Panel had before it documentary materials found in statements filed by the Applicant and Respondents. We also heard testimony under oath by Navraj Gill and Harnek Singh Gill for the Plaintiffs and Mehar Gill for the Defendant. The parties agreed at the commencement of the hearing to limit the witnesses to these three people.

6 The following documents were marked as exhibits: Exhibit #1: Applicant's Statement and Statement of Authorities; Exhibit #2: Respondents' Statement and Statement of Authorities; Exhibit #3: correspondence attached to TCO memo dated April 15, 1993; Exhibit #4: correspondence attached to TCO memo dated April 19, 1993; Exhibit #5: correspondence attached to TCO memo dated April 27, 1993; Exhibit #6: sketch of parking lot of the employer prepared by Navraj Gill. In the statement of facts of both the Applicant and Respondents, there was no dispute as to the fact that the accident occurred on the parking lot premises of the employer of both the Applicant and Respondent. The Plaintiff, Navraj Gill, produced for the hearing a sketch showing part of the factory and the parking lot of the employer which both parties agreed could be used as a reference, and indeed was marked as Exhibit #6. A letter from the employer confirming that it was a Schedule 1 employer for the Respondents Saito and Navraj and the Applicant Mehar had been supplied and formed part of the evidence. It was therefore determined by the Tribunal Counsel Office prior to the hearing that it was not necessary for the employer to attend. However, during the course of the hearing the Panel found that all three witnesses were unclear as to whether the driveway part of the parking area formed part of the "premises of the employer", and after hearing all the oral evidence, the hearing was concluded. Arrangements were agreed upon to obtain confirmation from the employer as to precisely what constituted the employer's premises, and for subsequent written submissions from both parties. After many futile attempts to contact the employer company, which had since changed ownership, the Panel requested submission from the parties.

7 The Panel has had the opportunity to review the written submissions from the representatives of the Applicant and Respondent. THE NATURE OF THE APPLICATION The issues before the Panel are as follows: 1. Have the rights of Saito Gill and Navraj Gill to bring the Ontario Court (General Division) action for damages for personal injuries been taken away by Part 1 of the Act, and more specifically by section 10(9) of the Act? 2. Does the Tribunal have the jurisdiction to deal with the FLA claims of Amandeepe Gill, Pwandee Gill, Ravinder Singh Gill and Surjit Kaur Gill? THE PANEL'S REASONS (i) Facts not in dispute 1. On Sunday, August 16, 1987, at approximately 4:05 p.m., a motor vehicle accident took place in the parking area outside the Mega Blow Moulding Limited building in Brampton, Ontario. 2. The Applicant, Mehar, and the Respondents, Saito and Navraj, all worked for the above-noted company, a Schedule 1 employer. 3. The parking area consisted of four parking places in front of the building, back from the public sidewalk, and spaces for cars against a fence which separated the employer's premises from the neighbouring premises. The distance between the fence and building was approximately 66 feet and delivery trucks would use this side drive to reach the loading docks at the rear of the building for delivery and pick-up. The door through which the workers entered and left the plant was also along this side of the building. 4. Mehar's car was parked in the first space parallel to the

8 front of the building. 5. Saito and Navraj (aunt and nephew) were driven to work that morning and picked up after work at the side exit door by Saito's husband Harnek Singh Gill. Saito's two sons were already in the car with her husband. 6. All three parties had just completed a full day's shift at 4:00 p.m. and had left the building at the same time. 7. All three parties, that is Saito, Navraj and Mehar, were workers of a Schedule 1 employer. 8. Mehar backed up her car across the front of the building just as Saito's husband was driving forward along the side of the building and beyond, towards the exit from the parking lot onto the street, when the collision between the two vehicles took place. 9. Although we were unable to obtain the information from the employer post-hearing with respect to the ownership and / or exclusive use of the parking area around the front and one side of the building, the Panel is satisfied, from the evidence of all the witnesses, that the parking area was used exclusively by the employer company for its employees, visitors, and deliveries, all related to the business of the employer. This was not seriously questioned by any of the parties. It is therefore considered to be the employer's premises. 10. The Panel therefore finds as fact that the accident occurred on the employer's premises. (ii) The submissions from the parties (a) For the Applicant Essentially the position of the Applicant Mehar is that she and the two Respondents Saito and Navraj had all just completed their work shift, had gone directly to the employer's parking lot, she to get in her car and the two Respondents to get into the car driven by Saito's husband, and the accident occurred before any of

9 them were able to exit the employer's premises. The Applicant relied on WCAT Decision Nos. 531 / 90, 674 / 89, 738 / 87, and 606 / 92. In Decision No. 531 / 90, the workers involved in an accident in the employer's parking lot had just arrived on the employer's premises to begin their work shift. The Panel found that the "primary activity" and purpose for both workers being in the employer's parking lot at the time of the accident was for their employment. In Decision No. 674 / 89 a collision occurred in the employer's parking lot between two workers, one of whom was arriving to start a shift and the other of whom was leaving having completed a shift. The Panel in that case reviewed the two lines of previous WCAT decisions and concluded that "activities of leaving and arriving at work generally fall within the course of employment when the worker is on the employer's premises". With both starting and finishing a work shift the Panel in Decision No. 674 / 89 found that the worker's activities were "reasonably incidental to their employment and temporally connected to their work". In Decision No. 738 / 87, the Panel held that arriving at work was "necessarily incidental to ones employment" when the accident occurred on a road-way in front of a hospital to which the public had access but which in fact was the hospital's premises. The Panel went on to state that "arriving at work is no less incidental to employment if it occurs by driving a car or taking a bus". Decision No. 606 / 92 involved an accident between a worker driving his car in the employer's parking lot to leave work after finishing a shift and another worker who was a pedestrian on his way to eat lunch. The Panel agreed with the test applied in Decision No. 531 / 90 and found the driver of the car was still in the course of his employment. (b) For the Respondents The Respondents submit that the important tests to apply are "the predominant-risk" test as referred to in WCAT Decision No. 733 / 87, a "work-relatedness" test as used in Decision No. 3 / 90 and the specific factors outlined in Decision No. 547 / 87.

10 In the latter case, the Panel noted that the location of the accident should rarely be the determining factor and applied a work-relatedness test by reference to the following factors: (a) nature of the activity; (b) time of the accident; (c) control over activity exercise by the employer; (d) relationship to the principle occupational activity; (e) type of equipment involved in the accident. In applying these tests, the Panel in Decision No. 547 / 87 reached the conclusion that a worker exiting a parking lot to go home from work is primarily performing a personal act and not an employment act. The predominant risk question is really whether, at the time of the accident, one is undertaking the risk faced by a member of the driving public, or that faced by an employee at his work place. In applying this test to the facts before it, the Panel in Decision No. 733 / 87, found that the worker's only connection to her work was the fact that she was leaving it. Her predominant risk at that point was as a member of the driving public. (iii) Conclusions The only issue before the Panel is whether the Applicant Mehar and the Respondents Saito and Navraj were in the course of their employment when the accident occurred. (a) Law and policy Section 10(9) of the Workers' Compensation Act states as follows: 10(9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in

11 Schedule 1 or any executive officer or any director or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost record of such individual employer or employers. The Board's relevant policy is found in Directive #21 which provides that an employer's premises include a parking lot controlled by the employer for the use of worker's access to and egress from the work site. In that portion of the policy referring to whether the accident arose out of the employment, the policy provides that when a worker is using an instrument of added peril such as an automobile the accident will not be considered to arise out of the employment except when the accident was caused by the condition of the road or happening under the control of the employer. It is clear that WCAT Panels have taken two different lines in deciding cases of accidents involving workers in the employer's parking lot. The conclusions reached by the Panels in Decision Nos. 733 / 87 and 547 / 87 at first blush appear to be more in line with Board Directive #21. In Decision No. 733 / 87, the Panel notes, however, that there was some question as to whether the accident had occurred on the employer's premises. Decision No. 547 / 87 has not been followed by subsequent WCAT decisions. The Panel in Decision No. 531 / 90 carefully reviewed all the factors outlined in Decision No. 547 / 87 and chose not to follow it, finding it necessary to consider the surrounding circumstances which effect the character of the activities. The Decision No. 531 / 90 Panel also concluded that the use of a motor vehicle for the purpose of entering or leaving an employer's parking lot was not "an instrument of added peril" as referred to in Board Directive #21.

12 This Panel agrees with the conclusions reached in Decision No. 531 / 90. We note also the comments of the Panel in Decision No. 764 / 91, as outlined by the Panel in Decision No. 606 / 92: These competing approaches were discussed by another panel of the Tribunal, in a decision not referred to by the parties, Decision No. 764 / 91 (November 11, 1991). In that case, the plaintiff had completed her shift as a labourer and was walking to her car in the employer's parking lot, when she was struck by a vehicle operated by another worker of her employer, who was exiting the parking lot after completing his shift. The Panel considered the cases referred to above [Decision Nos. 547 / 87, 674 / 89 and 531 / 90], and other Tribunal decisions which have addressed the issues in this case. The Panel concluded that, while it preferred a pure work-relatedness test and not a premises test for resolving this issue, its analysis of the development of the case law and the applicable WCB policy demonstrated a trend towards treating the location of the accident as the determinative factor. The Panel found that the development of the case law had reached the point at which the need for consistency in decision making takes precedence over the preference of a panel for a particular line of decisions. The Panel agrees that the Tribunal's trend is to treat the location of the accident as a determinative factor in "parking lot" cases. In doing so however, the Panel is of the view that this approach should not exclude an examination of the personal and employment factors to establish whether there is reason not to apply the "premises test" in the circumstances of any particular case. In the case before us, the Panel finds no reason to depart from the premises test. All three workers had just completed their shift and were leaving their employment (employment relatedness). It could equally be said that all three workers were going home (personal relatedness). There are no circumstances to tie their activity to the personal or

13 employment realm other than the fact that they were on the employer's premises. In the opinion of this Panel, that fact is sufficient to make the activity work-related. Had the accident occurred on the street outside the parking lot, the parties' activity could then be characterized as personal (driving home on a public road). In the Panel's view, the fact that the Respondents Saito and Navraj were picked up in a car driven by Saito's husband in no way alters the substantive considerations herein (see Decision No. 738 / 87 which dealt in the alternative forms of transportation and is quoted herein). In summary, then, the Panel finds that the accident between the Applicant and the Respondents, who were all employees of a Schedule 1 employer, occurred while all three parties were in the course of their employment. THE DECISION 1. The application is allowed. The right of action of the Respondents Saito Gill and Navraj Gill against the Applicant Mehar Gill is taken away by section 10(9) of the Act. 2. The Panel has no jurisdiction over the FLA rights of the other Plaintiffs herein. DATED at Toronto, this 28th day of March, SIGNED: J. McGrath, S.L. Chapman, F. Rao.