Right to sue; In the course of employment (proceeding to and from work).

Transcription

1 SUMMARY 892/91 DECISION NO. 892/91 Brunino v. Principe PANEL: McCombie; Thomspon; Nipshagen DATE: 11/05/92 Right to sue; In the course of employment (proceeding to and from work). Two defendants in a civil action applied to determine whether the plaintiff's right of action was taken away. The issue was whether the plaintiff was in the course of employment at the time of a motor vehicle accident. The plaintiff was waiting for his supervisor at an intersection shortly after 8 o'clock in the morning. This was the usual practice. The supervisor would then tell the plaintiff what work site to attend. The Panel found that the plaintiff was in the course of employment. The accident occurred after 8 o'clock, the time agreed upon to be available. The plaintiff was paid from 8 o'clock. The plaintiff's right of action against the two defendants was taken away. [11 pages] Cases Considered: Meyer v. Ontario (Workers' Compensation Board), 38 O.A.C. 398 refd to Cross-reference: Decision No. 892/91I

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 892/91 B E T W E E N: 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 District Court of Ontario at the City of Brampton as Action No /89. ROBERT BRUNINO and GREEN ACRES LANDSCAPING CO. FRANK PRINCIPE and DAVID PRINCIPE MICHAEL RENZETTI Applicants in this application and Defendants in the District Court of Ontario Action. Respondents in this application and Plaintiffs in the District Court of Ontario Action. Interested party in this application and Defendant in the District Court of Ontario Action. VITULLO BROS. PLUMBING CO. LTD. Interested party in this application.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 892/91 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 District Court of Ontario at the City of Brampton as Action No /89. B E T W E E N: ROBERT BRUNINO and GREEN ACRES LANDSCAPING CO. Applicants/Defendants FRANK PRINCIPE and DAVID PRINCIPE Respondents/Plaintiffs MICHAEL RENZETTI Interested Party/Defendant VITULLO BROS. PLUMBING CO. LTD. Interested Party WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 892/91 This Section 17 1 Application was heard on March 6, 1992, and April 23, 1992, before a Panel consisting of: N. McCombie : Vice-Chair, G.M. Nipshagen: Member representative of employers, P.J. Thompson : Member representative of workers. THE SECTION 17 APPLICATION This application arises as a result of a lawsuit brought by the Plaintiffs, Frank Principe and David Principe, against the Defendants, Robert Brunino, Green Acres Landscaping Co. ("Green Acres") and Michael Renzetti. The application was originally scheduled to be heard on December 4, 1991, but for reasons outlined in Decision No. 892/91I, the hearing was adjourned so that Vitullo Brothers Plumbing Co. Ltd. ("Vitullo Bros."), the employer of the Plaintiff, Frank Principe, could be notified of the issues involved. As was pointed out in the interim decision, if it is determined by the Tribunal that Frank Principe's right to sue has been taken away by the Act, then his remedy would be to apply for workers' compensation benefits. Such a claim would be assessed against Vitullo Bros. On reconvening, the parties were represented as follows: B.G. Hartley, barrister and solicitor with Gilbert, Wright and Flaherty, for the Applicants/Defendants, Brunino and Green Acres; M. Marchioni, barrister and solicitor with Lecce and Marchioni, for the Respondents/Plaintiffs. On April 23, R. Barrett replaced Mr. Marchioni; R. Besunder, barrister and solicitor with Paroian, Raphael, for the Interested Party/Defendant, Michael Renzetti; C. Vitullo, the office administrator, represented Vitullo Bros. On April 23, Ms. Vitullo was represented by D. Rotundo with Gambin Associates. 1 The section numbers used in this decision are those of the Workers' Compensation Act R.S.O. 1990, c. W.11. This was the operative version of the statute at the time of the hearing. Section 17 was formerly known as section 15.

5 2 THE EVIDENCE At the first day of hearing, the Panel considered the following exhibits: Exhibit #1: Applicants' Section 17 Statement; Exhibit #2: Applicants' Book of Authorities; Exhibit #3: Respondents' Section 17 Statement; Exhibit #4: Section 17 Statement of Michael Renzetti; Exhibit #5: correspondence among the parties and the Tribunal. Following the first day of hearing, the Panel directed that further evidence be provided. This was done and the following additional exhibits were considered: Exhibit #6: photocopies of weekly and daily time sheets involving Frank Principe; Exhibit #7: a copy of the Collective Agreement between Local 46 of the Plumbers and Steamfitters Union and the Independent Plumbing and Heating Contractors Association. On the first day of hearing oral evidence was given by Frank Principe, Robert Brunino and Ms. Vitullo. On the final day of hearing, submissions were made by Messrs. Hartley, Barrett and Besunder. THE NATURE OF THE CASE The lawsuit and this Section 17 Application arise out of a motor vehicle accident which occurred on August 21, For the purposes of this application, the facts surrounding the accident are not in dispute and can be summarized as follows: 1. On the morning of August 21, 1987, the Plaintiff, Frank Principe, was sitting in his parked car close to the intersection of King Knoll Drive and Windmill Boulevard in a new subdivision in Brampton. 2. At approximately 8:10 a.m. a vehicle driven by Robert Brunino went through the intersection and struck a vehicle being driven by Michael Renzetti. 3. As a result of this collision, the Renzetti vehicle struck Mr. Principe's vehicle. 4. Mr. Principe claims that he suffered injuries as a result of this accident.

6 3 5. As a result, he commenced a lawsuit, alleging negligence against all the Defendants. His father, David Principe, is also a plaintiff in this action pursuant to the Family Law Act ("FLA"). 6. At the time of the accident, Frank Principe was a worker for Vitullo Bros. He had made arrangements with his employer that he would meet his supervisor at this intersection. He would then receive instructions and proceed to the day's job site by foot or in his supervisor's vehicle. 7. At the time of the accident, Robert Brunino was a worker for Green Acres Landscaping Co. ("Green Acres"). He was en route, with two co-workers, from the Green Acres offices to model homes in the area. 8. At the time of the accident, Michael Renzetti was not in the course of his employment. 9. Both Vitullo Bros. and Green Acres were Schedule 1 employers at the time of the accident. It was agreed by the parties, that the major issue before the Panel is whether Mr. Principe was in the course of his employment at the time of the accident. If Mr. Principe was in the course of his employment, and his right of action is taken away, the Mr. Besunder is seeking an order pursuant to section 10(11) limiting the liability of Michael Renzetti. While there had been some Tribunal decisions referred to suggesting that the Tribunal also had the jurisdiction to deal with FLA claims, these decisions were rendered prior to the Ontario Court of Appeal decision in Meyer v. WCB 38 O.A.C. 398 (C.A.). That decision ruled that the Board - and, therefore, the Appeals Tribunal - does not have the jurisdiction to rule on the right of action of a non-dependant family member. This decision has been followed in subsequent decisions of the Tribunal. The parties agreed that there was no reason it should not be followed in this case and, therefore, we will not deal with the right of action of David Principe. Any further reference to Mr. Principe will be to Frank Principe. THE PANEL'S REASONS (i) The background findings As indicated, there was no dispute that the two employers involved in this case were Schedule 1 employers. This fact was confirmed in correspondence from the WCB, dated January 15, 1992, and the Panel accepts that both Vitullo Bros. and Green Acres were Schedule 1 employers at the time of the accident. There was also little dispute that the Defendant driver, R. Brunino, was in the course of his employment at the time of the accident. However, for reasons which are understandable, Mr. Marchioni in his opening statement, did not want to totally concede this point without any evidence. Mr. Brunino appeared at the March 6 hearing and testified. That evidence indicated that he was employed as a lawn maintenance labourer with

7 4 Green Acres in the summer of His daily routine involved going to the Green Acres shop at between 7:00-7:30 a.m. to load machines and equipment onto the Green Acres truck, then proceed to the day's job site. He indicated that he was paid from the time that he started at the shop, including travel time from the shop to the job site. On August 21, 1987, he stated that he had already been to the shop and was en route to a model home in the Green Park subdivision accompanied by two co-workers when the accident occurred. While there was some dispute as to the exact time of the accident, the earliest estimate was that it happened at 8:10 a.m. Mr. Brunino testified that following the accident, he phoned his boss then proceeded to his job site as planned, some three minutes away from the accident site. We are satisfied on the evidence that there is little question that Mr. Brunino was in the course of his employment at the time of the accident. He had already started his working day at least 40 minutes prior to the accident and was getting paid and, he was in an employer owned vehicle on his way from his employer's premises to his job site. There is no evidence of any departure for personal reasons. We are, therefore, in agreement that the question before us turns on whether Mr. Principe was in the course of his employment at the time of the accident. (ii) Mr. Principe's evidence Mr. Principe indicated that he was hired as a summer student by Vitullo Bros. at the end of the 1986/87 school year. His duties involved assisting the plumbers in finish plumbing at the Green Park subdivision in the Brampton area. The usual procedure for other workers was to arrive at the Vitullo Bros. shop in Concord, between 7:30 and 7:45 a.m., load the day's material and equipment, then proceed to the job site. Mr. Principe, however, had a special arrangement. Because his residence was close to the Green Park job site, it did not make sense for him to travel from Brampton to Concord, then return to Brampton to start work. As a result, it was agreed that he would be at the corner of King Knoll Drive and Windmill Boulevard by 8:00 a.m. He would meet his supervisor at this intersection and be given directions as to where he was to work. Mr. Principe testified that normally the supervisor he was working with was "Nick" and that Nick would usually arrive between 8:00 and 8:30. Sometimes the house he would be assigned to was within walking distance of the intersection, and sometimes he would accompany Nick, in Nick's vehicle, to a more distant location within the subdivision. This was the practice that was followed on the morning of the accident. (iii) Was Frank Principe in the course of his employment? Shortly after the accident, Mr. Principe received a telephone call from J. Smith, an agent with an insurance company. This telephone call was

8 5 recorded, with Mr. Principe's knowledge and permission, and a transcript of the conversation included in Mr. Hartley's material. While the transcript is not dated, Mr. Hartley suggested that the conversation occurred on November 9, There are a number of differences in the information provided by Mr. Principe to Mr. Smith and that provided at the hearing. For example, Mr. Principe told Mr. Smith that the accident occurred at 8:25. He indicated at the hearing that the time was closer to 8:10. We note that the evidence of Mr. Brunino was that the accident occurred at around 8:10. We also note that the police report of the accident indicates an accident time of 8:10. That report also indicates that the police arrived at the accident scene at 8:18. We, therefore, accept the time of the accident as being 8:10. Of more significance, when Mr. Smith asked whether he was paid from 8:00 a.m., while he was waiting for the supervisor, Mr. Principe responded: A. It starts from 8:00 o'clock. That's when I arrive and whatever time it takes for my boss to get there I am still paid. Q. If it takes 5 minutes fine, if you sit there for an hour you are still paid? A. Yes. At the hearing, Mr. Principe testified that his paid day did not start until he actually started working at the job site; he was not paid for the time spent waiting for Nick. He stated that if he waited for an hour for Nick, and did not start work until 9:00 a.m., he would only be paid from 9:00. Ms. Vitullo also testified that her understanding was that generally the workers would not be paid until they reached the actual job site and began working. The question of when his paid work day started is, of course, a significant factor in determining whether or not Mr. Principe was "in the course of his employment" at the time of the accident. And there is a discrepancy between what was told to Mr. Smith and the evidence before this Panel. Mr. Hartley argued that the telephone interview took place at a time much closer to the events, while Mr. Marchioni raised a question concerning the fact that at the time of the telephone interview, Mr. Principe was a minor. In the Panel's view, the discrepancy in Mr. Principe's recounting of events is not significant, as there is revealing documentary evidence, from Vitullo Bros., a party which is aligning itself with Mr. Principe's position. That evidence - the time sheets - suggests, contrary to the evidence given by Ms. Vitullo, that he was normally paid from 8:00 on. The daily time sheets were completed by the supervisor and turned in to the office. These time sheets indicate the hours worked each day and on what job. With only two exceptions, these time sheets show that Mr. Principe worked at least eight hours a day.

9 6 The evidence was that the normal work day was from 8:00 a.m. to 5:00 p.m. After allowing for unpaid lunch and coffee breaks, this works out to an eight hour shift. We are, therefore, satisfied that Mr. Principe was normally paid from 8:00 a.m., no matter what time he actually began working at the job site. Having found that he was being paid at the time of the accident does not, however, necessarily answer the question of whether he was in the course of his his employment. Mr. Barrett argued that, in awaiting the arrival of his supervisor, Mr. Principe had not yet been assigned any work, had no knowledge of what work was necessary on any given day and, even if he had known, did not have access to the houses to carry out any work. He pointed out that Mr. Principe was not paid for the short time between 8:00 and the accident. It was his position that Mr. Principe, while he was stopped at the time, should still be considered as a travelling worker as he had not arrived at the work site and would not do so until assigned by his supervisor. As a result, he would fall under the general rule that a travelling worker is not in the course of employment unless s/he falls under one of several exceptions. Mr. Besunder supported the position that Mr. Principe had not yet entered the course of employment. Mr. Hartley argued that this worker's situation should be seen as analogous to a worker who has arrived in the employer's parking lot. In his submission, Mr. Principe had stopped commuting and was "at work", the whole subdivision being, in essence, the "work site". (iv) The Panel's conclusions The relevant section of the Act is subsection 10(9), which reads 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, 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. While accidents which do not happen within the easily defined confines of a fixed workplace are often problematic, we are satisfied that Mr. Principe was in the course of his employment when this accident occurred. It has been noted by many decisions that an adjudicator should consider a number of

10 7 factors in determining whether someone is in the course of employment. While no single factor will be determinative, the combination will assist in answering the question. In this case we do not accept the argument that Mr. Principe was not in the course of his work as he had not yet been assigned work that day. There are many cases in which compensable accidents occur prior to a formal assignment to a specific task. Mr. Hartley suggested the analogy of a worker arriving in an employer's parking lot. While we do not totally accept that this worker was in a similar position to the comparison Mr. Hartley suggests, we agree that the boundaries of his employment were broader than the front door of whatever house he happened to be working in. He had arrived, "at work" - that is, at the agreed upon meeting place in the subdivision - and was waiting for his supervisor to arrive and direct him to the day's work. He had no other reason for being there and there is no evidence that he was engaged in any personal activities which would constitute a distinct departure. The accident occurred after the agreed upon time that he should make himself available - 8:00 a.m. This was, in our view, really his "starting time", and most significantly in our view, the records support that this was the time that he was paid from. Taking all the circumstances into account, we find that the worker was in the course of his employment at the time of the happening of the accident, as was the Defendant, Brunino. Therefore, the right of action against Mr. Brunino, and Green Acres, a Schedule 1 employer, is taken away by section 10(9) of the Act. As we indicated, Mr. Besunder submitted that, if we found Mr. Principe in the course of employment, then he was seeking a declaration under section 10(11). That section reads: 10(11) In any action brought by a worker of an employer in Schedule 1 or dependant of such worker in any case within subsection (1) or maintained by the Board under subsection (4) and one or more of the persons found to be at fault or negligent is the employer of the worker in Schedule 1 or an executive officer or director thereof, or any other employer in Schedule 1, or an executive officer or director thereof, or any worker of any employer in Schedule 1, no damages, contribution or indemnity are recoverable for the portion of the loss or damage caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or executive officer or director thereof, or of any worker of any employer in Schedule 1, and the portion of the loss or damage so caused by the fault or negligence of such employer of the worker in Schedule 1 or an executive officer or director thereof, or of any other employer in Schedule 1 or an executive officer or director thereof, or of the worker of any employer in Schedule 1, shall be determined although such employer or executive officer or director or worker is not a party to the action.

11 8 To put this in the context of the current case, this section protects Mr. Renzetti from being held liable for any negligence attributable to Mr. Brunino and/or Green Acres and we so order. THE DECISION The application is allowed. Mr. Principe's right of action against the Defendants, R. Brunino and Green Acres Landscaping, is taken away by the Act. Mr. Renzetti is entitled to the protection of subsection 10(11). We make no finding concerning the action by David Principe. DATED at Toronto, this 11th day of May, SIGNED: N. McCombie, G.M. Nipshagen, P.J. Thompson.