FD: FD: DT:D DN: 613/90I2 STY:Barton v. Air Ontario Inc. PANEL: Moore; Jackson; Apsey DDATE: ACT: KEYW: Right to sue; In the course of

Transcription

1 FD: FD: DT:D DN: 613/90I2 STY:Barton v. Air Ontario Inc. PANEL: Moore; Jackson; Apsey DDATE: ACT: KEYW: Right to sue; In the course of employment (travelling); Jurisdiction, Tribunal (right to sue) (dependants). SUM: The plaintiffs in a civil action applied to determine whether their right of action was taken away. The plaintiffs were relatives of a worker who was killed in a plane crash. The worker was on his way to Winnipeg to attend a conference. He was expected to attend the conference. Attendance at another event the day before the conference was optional. The worker arranged to go to Winnipeg a day earlier in order to attend to some personal matters. The Panel found that the worker was in the course of employment, regardless of when the flight took place. He was exposed to the risk of travelling no matter which date he chose to travel. After receiving further submissions, the Panel will determine whether the plaintiffs are dependants of the worker. [10 pages] PDCON: TYPE: DIST: DECON: Decision No. 123 (1986), 2 W.C.A.T.R. 66 consd; Decision No. 490/88I (1988), 9 W.C.A.T.R. 332 refd to; Decisions No. 479/87I consd, 965/87 refd to, 847/88 refd to IDATE: HDATE: TCO: KEYPER: R. Poirier, a lawyer; C. McCall, a lawyer; W.D. Millar, a lawyer XREF: Decision No. 613/90I (1990), 19 W.C.A.T.R. 199 COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 613/90I2 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11, as amended. AND IN THE MATTER OF an action commenced in the Supreme Court of Ontario at Thunder Bay as Action No. 1935/89. B E T W E E N: CHRISTOPHER BARTON and KEVIN BARTON, minors by their Litigation Guardian, DIANE BARTON and the said DIANE BARTON and RUDY BARTON SR. Applicants in this application and Plaintiffs in the Supreme Court of Ontario Action. - and - AIR ONTARIO INC. and CANADIAN AIRLINES INTERNATIONAL, CANADIAN PARTNER and ONTARIO EXPRESS LIMITED Respondents in this application and Defendants in the Supreme Court of Ontario Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 613/90I2 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 Supreme Court of Ontario, at Thunder Bay, as Action No. 1935/89. B E T W E E N: CHRISTOPHER BARTON and KEVIN BARTON, minors by their Litigation Guardian, DIANE BARTON and the said DIANE BARTON and RUDY BARTON SR. Applicants/Plaintiffs - and - AIR ONTARIO INC. and CANADIAN AIRLINES INTERNATIONAL, CANADIAN PARTNER and ONTARIO EXPRESS LIMITED Respondents/Defendants WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 613/90I2 This application, which was originally brought pursuant to section 15 of the pre-1990 Act, was heard in Thunder Bay, on July 6, 1992, by a Tribunal Panel consisting of: J.P. Moore: Vice-Chair, R.H. Apsey: Member representative of employers, F. Jackson: Member representative of workers. A hearing of this application took place on August 21, 1990, and gave rise to Decision No. 613/90I, under a different panel. THE APPLICATION PROCEEDINGS This application under section 17 of the Workers' Compensation Act (section 15 of the pre-1990 Act) arises out of an airplane accident that occurred on March 10, That accident resulted in the death of Rudy Barton Jr. An action was commenced in the Supreme Court of Ontario by the Applicants, the family of Rudy Barton Jr., against the Respondents, on August 24, The Respondents are: Air Ontario Inc., Canadian Airlines International, Canadian Partner and Ontario Express limited. This application was brought by the Plaintiffs who seek a declaration pursuant to section 17 concerning their right to bring the legal action in question. The Applicants were represented by R. Poirier, a lawyer. The Respondent, Air Ontario, was represented by C. McCall, a lawyer. The other Respondents in the application were represented at the hearing by W.D. Millar, a lawyer. THE EVIDENCE Documentary evidence presented at the hearing of August 21, 1990, and described in Decision No. 613/90I as Exhibits #1 through #6, were before this Panel. In addition, the Panel had before it the following material: Exhibit #7: two "house letters" dated March 6, 1989; Exhibit #8: travel documents; Exhibit #9: an invoice dated March 3, 1989; Exhibit #10: a letter from the Plaintiffs' counsel, dated August 25, The Panel heard testimony under oath from W. Mowat, the regional sales manager for the deceased worker's employer, at the time of the events in

5 2 question. The Panel also heard testimony under oath from the deceased worker's widow. Submissions were made at the hearing by Mr. Poirier, Ms. McCall and Mr. Millar. THE NATURE OF THE CASE On March 10, 1989, Rudy Barton Jr. was travelling to Winnipeg, Manitoba on a flight operated by Air Ontario that originated in Thunder Bay, Ontario. The airplane on which Mr. Barton was a passenger crashed and Mr. Barton was fatally injured. As a result of this accident, a legal action has been commenced against Air Ontario and other defendants. The plaintiffs brought this application in order to clarify the status of the legal action commenced by them against Air Ontario. We note that the status of the action as against other defendants named in the action is not before us. In Decision No. 613/90I, the Panel ruled that, at the time of the accident in question, Air Ontario was a Schedule 1 employer. At the hearing giving rise to the present decision, the issue was whether the worker's claim against Air Ontario was barred by subsection 10(9) of the Act (formerly section 8(9)). Subsection 10(9) reads in part 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 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,... As we noted above, the Panel, in Decision No. 613/90I, ruled that Air Ontario was a Schedule 1 employer. The Plaintiffs' counsel did not dispute that the workers of Air Ontario were in the course of their employment when the accident happened. It was also not disputed by the plaintiffs that the employer of Rudy Barton Jr. was a Schedule 1 employer. The unresolved issue was whether Rudy Barton Jr. was in the course of his employment at the time of the happening of the accident that caused his death. THE PANEL'S REASONS (i) The facts The deceased worker, Rudy Barton Jr., was a branch manager for his employer. Mr. Barton lived in Marathon, Ontario. The employer arranged a conference for branch managers in Winnipeg. The conference was to take place on Sunday, March 12, Two in-house letters were sent to Mr. Barton on March 6, The first letter set out the agenda for the meeting, an agenda which suggested the meeting would last from

6 3 9:00 a.m. to approximately 5:00 p.m. The second letter described the accommodation arrangements made by the employer for Mr. Barton. The accommodation arrangements included accommodation on Friday and Saturday, March 10 and 11, That letter also indicated that Mr. Barton was to pay for his room and submit an expense claim for Saturday night only. The extra night's accommodation was arranged for Mr. Barton because Mr. Barton was to be a participant in a company-sponsored curling bonspiel. The bonspiel was taking place on Friday evening and Saturday and had been arranged by the employer's social committee. All expenses associated with the bonspiel were paid by the participants. The employer's involvement consisted of providing a trophy and making arrangements for accommodation. Mr. Mowat also testified that the branch managers' meeting was schedule to overlap with the bonspiel in order to enable some of the branch managers who otherwise could not have done so to participate in the bonspiel. Mr. Barton left for Winnipeg on Thursday, March 9, According to the testimony of Mrs. Barton, Mr. Barton wanted to get to Winnipeg early so that he could purchase hockey tickets for a team that he coached in his home town. Consequently, he took a flight from Marathon on the evening of March 9 to enable him to catch the early morning flight from Thunder Bay to Winnipeg on March 10. Mr. Barton was scheduled to take a 7:00 a.m. flight on March 10 on Canadian Partner Airline. However, the arranged flight was canceled and Mr. Barton arranged to fly from Thunder Bay to Winnipeg on an Air Ontario flight. Mr. Barton died as a result of the accident involving that flight. The evidence established that Mr. Barton's employer paid his air fare from Marathon to Winnipeg. Attendance at the Sunday meeting was "expected". Attendance at the bonspiel was optional. Mr. Barton was apparently paid for Friday, March 10. Mr. Mowat testified that it was common for branch managers, who were paid monthly, to take time off in lieu of extra time previously worked. Mr. Mowat testified that taking Friday, March 10 off in lieu of working on Sunday, March 12 would have been acceptable to the employer. Mrs. Barton conceded that Mr. Barton would not have gone to Winnipeg either for the bonspiel or to purchase the hockey tickets had the employer not paid his air fare to Winnipeg. (ii) Was Mr. Barton in the course of his employment at the time of the happening of the accident? In the Panel's opinion, Mr. Barton was in the course of his employment at the time of his fatal accident. Previous Tribunal decisions have indicated that the test in cases such as this is whether the worker was where he was at the time he was injured or killed because of his employment. That is, at the time of his injury, did the worker have the status of "worker". In the present case, the evidence establishes conclusively that Mr. Barton was travelling to Winnipeg because his employer expected him to attend a conference. Mr. Barton was on a flight to Winnipeg because of that conference. Although Mr. Barton had some choice concerning how and when he would travel, there was a clear expectation on the part of the employer that Mr. Barton was to be in Winnipeg by a certain date. Consequently, in our opinion, Mr. Barton was where he was at the time of his accident because of his employment. He was, therefore, in the course of his employment during his travel.

7 4 Mr. Poirier argued, on behalf of the applicant, that there was a substantial "deviation" by Mr. Barton that negated the employment aspect of the trip. In his view, the evidence established that Mr. Barton left early to purchase hockey tickets and to participate in an optional bonspiel sponsored by the employer. In his view, this temporal deviation was significant because it exposed Mr. Barton to greater risk. The greater risk arose out of the simple elongation of his trip. Mr. Poirier also argued that Mr. Barton's reasons for changing airlines, and selecting the fatal flight that he chose, were the result of his personal interests in getting to Winnipeg early to obtain hockey tickets. However, in the Panel's view, these arguments cannot stand in the face of the fact that the narrow issue before us is whether, during the time Mr. Barton was flying to Winnipeg, he was in the course of his employment. In the Panel's view, the answer to that question is yes, regardless of when that flight took place. Mr. Barton was compelled to travel to Winnipeg. Mr. Barton had the option of choosing how and when he got to Winnipeg. However, once he was embarked on whatever mode of transportation he took, as long as he proceeded in a straightforward way to his destination, he was in the course of his employment. The Panel was referred to two previous Tribunal decisions which have discussed this issue. In Decision No. 479/87I (May 29, 1987), the Panel stated, at pages 6 and 7: On these facts, we find that Mr. Walkey was engaged in a trip that had both a personal and a business reason... It was a dual purpose trip. With respect to such trips, Decision No. 420 of this Tribunal adopted the test applied by American courts which is stated as follows: Injury during a trip which serves both a business and a personal purpose is within the course of employment if the trip involved the performance of a service for the employer which would have caused the trip to be taken even if it had not coincided with the personal purpose. It was Mr. Bryant's submission that this particular trip would not have been taken at this particular time except for the personal aspect of the trip. In his submission, the worker was exposed to different risks because of the change in the timing of the trip than he would have been exposed to had the trip taken place the next day. In our view, this argument is addressed by the following passage from a decision by Judge Cardozo in the case of Marks' Dependents v. Gray, 25 1 N.Y. 90, 167 N.E. 181 (1920): The test in brief is this: if the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own...if however the work has had no part in creating the necessity for travel, if the journey would have gone forward though

8 5 the business errand had been dropped, or would have been canceled upon the failure of the private purpose, though the business errand was undone, the travel was then personal, and personal to risk. In this case, had the personal reason for the trip been canceled, it would still have been necessary for the worker to make the return trip to his home in Burlington. In our view, the work of the employee created the necessity for travel, including the return trip, and in our view, this brings the worker within his course of his employment notwithstanding that there was also a personal aspect to the trip... Moreover, we agree with Mr. Fursman that it would be wrong to characterize a change in the timing of the trip on the facts of this case as creating a different risk. In our view, the risk to which Mr. Walkey was exposed is the risk of highway driving. That is the risk to which he would have been exposed on Friday afternoon or evening and is the very risk to which he was exposed on his trip when the accident occurred. In the Panel's view, the same analysis can be made in the present case: the risk to which Mr. Barton was exposed - travelling on an aircraft - was the same risk regardless of the date on which he chose to travel. We note also the following excerpt from Decision No. 123 (November 5, 1986). At page 4 of that decision the Panel stated: In these circumstances, we are of the view that, provided they were travelling to the conference in a straight forward manner which we have already concluded was the case, they should be considered to be in the course of their employment while en route to and from the conference. Nor are we persuaded that they took themselves out of the course of their employment because they initially planned to attend a social function. The social function was closely connected with the conference. While it wasn't necessary for them to attend the social function, there was evidence that the social function enhanced the value of the conference. Moreover, had the social function not been scheduled, there would still have been an obligation to get to the conference. The present case, in our view, falls squarely within the parameters described in the above two cases and buttresses our view that Mr. Barton was in the course of his employment at the time of his fatal injury on March 10, 1989.

9 6 (iii) Who is affected by this ruling? There are four plaintiffs in the court action giving rise to this application: the deceased worker's widow, his two children, and his father. Subsection 10(9) of the Act indicates that the right of action of a worker and his "dependants" can be barred by the subsection. On August 16, 1990, prior to the commencement of the hearings in this application, the parties were sent a letter from J. Sajtos of the Tribunal Counsel Office advising them of previous Tribunal decisions which had ruled that the Tribunal had jurisdiction under subsection 10(9) to take away the rights of action only of those parties to the action who were "dependants" as defined by the Act (see Decisions No. 490/88I, 847/88 and 965/87.) That definition reads as follows: "Dependants" means such of the members of the family of a worker as were wholly or partly dependant upon the worker's earnings at the time of his or her death or but for the incapacity due to the accident would have been so dependant. The effect of the foregoing is that the present Panel can only take away the rights of action of the Plaintiffs listed in this action who were dependant on the worker at the time of his death. In the letter of August 16, 1990, the parties were informed that this matter would be an issue for determination by the Panel. At the time of the hearing of the application, no evidence was adduced by either side as to the dependant status of the Plaintiffs. The Applicants' (Plaintiffs') Statement included several statements of fact pertaining to the Dependant status of the Plaintiffs. Subsequent to the hearing of the application the parties were invited by the Panel to make further submissions on this point. Counsel for the Applicants submitted that the worker's widow and his two children were Dependants under the Act, but that the worker's father was not. The Respondents indicated in their reply to the Panel that in their view, the matter had been resolved in the letter of August 16, As things stand, the Panel feels that it is unable, at this point, to rule on the question of who is affected by our ruling as to the employment status of the late worker. The Applicants appear satisfied to have a ruling based on the alleged facts contained in the Applicants' Statement and the Panel is satisfied with the Applicants' position in this regard. However, the Respondent appears not to have addressed the issue in a manner that sets out their position. If the Panel were to rule as submitted by the Applicants' counsel, the right of action of the deceased worker's father would continue to exist while the right of action of the deceased worker's widow and two children would be barred. In our view, it is incumbent upon the Respondent to indicate to the Panel what submissions and/or evidence it wishes to adduce on this issue.

10 7 Consequently, the Panel will delay issuing a final decision in this application pending final submissions from the parties on the question of the effect of our ruling on the employment status of the deceased worker. THE DECISION The Panel declares as follows: 1. the deceased worker, Rudy Barton Jr., was in the course of his employment at the time of his fatal injury on March 10, 1989; 2. the legal actions commenced by the dependants of Rudy Barton Jr. are barred by subsection 10(9) of the Act; and 3. the question of who constitutes a dependant of Rudy Barton Jr. for the purposes of the Workers' Compensation Act will be addressed in a further decision upon completion of submissions by the parties on this question. The parties are to have four weeks from the date of this decision to provide such evidence and submissions as they feel are necessary to enable the Panel to resolve this matter. The parties are then to have a further two weeks to file reply submissions. Counsel for the interested third party, Canadian Airlines, is to be giving copies of the parties' submissions and may have two weeks to file reply submissions. Upon receipt of the parties additional evidence and submissions, the Panel will issue a final decision. DATED at Toronto, this 9th day of October, SIGNED: J.P. Moore, R.H. Apsey, F. Jackson.