WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 808/15

WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL DECISION NO. 808/15 BEFORE: J. Josefo: Vice-Chair HEARING: April 23, 2015 at Toronto Oral DATE OF DECISION: May 13, 2015 NEUTRAL CITATION: 2015 ONWSIAT 1038 APPLICATION FOR AN ORDER REMOVING THE RIGHT TO SUE APPEARANCES: For the applicants: For the respondents Savvidis (also known as Michaels) and Pickles: For the co-applicants: For the interested party, Bekteshi: For the interested party Rogers: Interpreter: G. Campisi, Barrister and Solicitor Self-represented (did not appear) E. Pullan, Barrister and Solicitor L. Chien, Barrister and Solicitor T. Inkster (did not appear) Not applicable Workplace Safety and Insurance Appeals Tribunal Tribunal d appel de la sécurité professionnelle et de l assurance contre les accidents du travail 505 University Avenue 7 th Floor 505, avenue University, 7 e étage Toronto ON M5G 2P2 Toronto ON M5G 2P2

Decision No. 808/15 REASONS (i) The right to sue application and co-application: The parties, their counsel, and the underpinning civil litigation [1] This is an application under section 31 of the Workplace Safety and Insurance Act, 1997 (the WSIA ) by the applicants Community Homes Solutions Limited ( Community ) and Davis, an executive of Community. The co-applicants are the Byng Group ( Byng ), Doe, Byng, and Settino, all of whom are associated with Byng. The respondents are Savvidis and Pickles. [2] Rogers, then the general manager of Community, is an interested party. Bekteshi is also an interested party in this proceeding. [3] The applicants Community et al are represented by Ms. Campisi. The co-applicants Byng et al are represented by Mr. Pullan, while Ms. Chien represents Bekteshi. [4] The self-represented respondents Savvidis and Pickles neither filed materials nor appeared for this proceeding, despite repeated notice of their obligation to, respectively, file materials and to attend, subject to a decision being made in their absence. Rogers, represented by Mr. Inkster, also did not appear for reasons which became clear as the hearing progressed. [5] This application arises out of a civil action commenced in Toronto under court file #CV- 11-00436519-00. The plaintiffs in that within action are Savvidis and Pickles. The defendants are Community, Byng, Bekteshi, Rogers, Doe, Byng, Settino and Davis. In the course of submissions at the hearing, I was informed that the Court Registrar has dismissed the within civil action. Yet both Ms. Campisi and Mr. Pullan informed me that, based upon discussions Mr. Pullan had with Savvidis, Savvidis intends to retain new counsel and will seek to revive the dismissed civil action. Thus, it was submitted that the application should proceed in the event that the civil action is revived, given that it is expected that an attempt to revive it will be made. [6] While there is an argument that, given that the civil action was dismissed, this proceeding is moot, I have decided to rule on the issues raised. I have done so because a Registrar s proforma dismissal of an action (for delay, presumably) is subject to appeal. To avoid a waste of time and resources, including at the Tribunal where parties must wait for some time for a hearing date, it is appropriate that this application be addressed on its merits. Further ahead, I also indicate additional reasons why I proceeded with a decision on the merits. (ii) The facts which underpin this application; agreement on certain facts [7] The civil action and within application arise out of a sexual assault committed upon Savvidis by Bekteshi on October 5, 2009. Under cover of correspondence dated March 20, 2014, Ms. Campisi provided the Halton Region Criminal Information Sheet which confirmed that Bekteshi was convicted of committing a sexual assault upon Savvidis on October 5, 2009. The criminal information sheet confirms that while Bekteshi pled not guilty he was, on March 2, 2011, found guilty of the offence for which he was charged. [8] At the time the assault occurred both Savvidis and Pickles were employed by Community. Savvidis was a cleaner for a property owned by Community, located in Oakville, Ontario. Davis was then and is now an executive of Community, while Rogers, as indicated above, was at the relevant time the general manager.

Page: 2 Decision No. 808/15 [9] Pickles was the live-in superintendent for the same building. Savvidis and Pickles lived together at the relevant time. Pickles claim is thus a Family Law Act claim, derivative to Savvidis claim. [10] It is not in dispute that Community engaged Byng to repair a bathtub in a particular tenant s unit in the Oakville property. Bekteshi, it was confirmed at the hearing by all parties present, was not an employee of Byng. Rather, he was an independent contractor engaged by Byng to repair the bathtub. [11] Bekteshi sexually assaulted Savvidis when she allowed him access to the unit which had the bathtub which Bekteshi was engaged to repair. As a result of the sexual assault, Savvidis and Pickles commenced the above-described civil action against the various parties. Some of those parties, again as identified above, brought this within action asserting that Savvidis (and derivatively, Pickles) have no right to sue but could only claim WSIB benefits. (iii) The Adjournment Request of the Respondents [12] At one time Savvidis and Pickles were represented by legal counsel. Subsequently, that counsel filed an election to act in person form. The Tribunal corresponded with Savvidis and Pickles on numerous occasions. The respondents also received correspondence from various counsel with the requisite materials. The Tribunal reminded Savvidis and Pickles of their obligation to file material and, when such material was not filed in a timely way, informed them that late filing would become an issue at the hearing. [13] On the day prior to the hearing, Pickles wrote to the Tribunal seeking an extension to our scheduled appeal. It was asserted that his wife Savvidis suffered a severe anaphylactic reaction which had required hospitalization and then ongoing treatment at home, including the use of prescribed antihistamines. [14] The other parties opposed what was interpreted to be an adjournment request. The matter was brought to my attention and on April 22, 2015, I stated that while Savvidis may not be in attendance at the scheduled hearing, Pickles, who was a named party in both the within civil action and this application, should attend. [15] At the hearing day Pickles did not attend at the scheduled time. I requested that an employee of the Tribunal s Scheduling Department contact him to determine if he would be attending. That employee, in my presence, spoke to Savvidis who passed the phone eventually to Pickles, who stated that he would not be attending and renewed his request for an adjournment. I instructed the employee who was speaking to Pickles to state that the hearing would be proceeding. I confirmed that ruling in the hearing room to the other parties. [16] I denied the adjournment for a number of reasons. First, there was no medical corroboration that Savvidis, if she had suffered an anaphylactic reaction at some unspecified prior time, was not in any case able to attend the hearing even if she was taking antihistamine medication. Leaving aside her claimed inability to attend the hearing, there was no basis for Pickles not attending. As a party, he could have attended the hearing. [17] All other parties were present and prepared to proceed. This matter concerns an event which occurred, as of the date of this hearing, five and a half years earlier. It is not in the interest of justice that matters be further prolonged and, with the current backlog of cases, it would likely not be for another year until this matter could be rescheduled.

Page: 3 Decision No. 808/15 [18] Additionally, the issues arising on this within application are for the most part a matter of law. I am able to determine the rights of the parties pursuant to the WSIA and the Tribunal s well-established case law which I find applicable to these circumstances. As noted above, the civil action was dismissed. Should the action be subsequently revived from the Registrar s dismissal, this decision sets out the manner and scope in which it would be revived. (iv) Findings of fact, resulting conclusions and Initial Rulings [19] At the hearing I discussed these findings of fact with the parties present: 1. Savvidis was an employee of Community and she was in the course and scope of her employment when the tortious act (the assault) occurred on October 5, 2009. 2. Given my conclusion that Savvidis was in the course and scope of her employment as a cleaner in the building, her action in negligence against the applicants Community and Davis are extinguished pursuant to section 28(1) of the WSIA. Her claims for wrongful eviction and for wrongful dismissal are not barred, for reasons explained below. 3. The action against the interested party Rogers is also extinguished. I was urged to make that ruling even though Rogers did not bring a within application, as Ms. Campisi submitted that he did not bring his within application simply because the civil action had been dismissed by the Registrar, and Rogers did not wish to incur the additional legal costs. I have sympathy for that position and in my view it would be contrary to an efficient use of Tribunal and court resources to compel Rogers to commence his own application, if the result would only be exactly what it is now. Accordingly, the action against Rogers is also extinguished pursuant to section 28 of the WSIA. 4. The action against Bekteshi can proceed because, as is obvious, he was not acting in the course and scope of any employment when he committed the sexual assault. As will be discussed further ahead, even if Bekteshi had been a worker of a Schedule 1 employer at the time, by engaging in a sexual assault he removed himself from the course and scope of employment and thus from the protection of the Act. In any event, Bekteshi was, it was agreed by all parties present, an independent contractor and not an employee of Byng. As such, Bekteshi does not enjoy any protection under the WSIA. The action against him accordingly may proceed. 5. As for the co-applicants Byng Group et al, I heard comprehensive submissions from Mr. Pullan with respect to whether the action against Byng Group ought to be extinguished. I now turn to my consideration of that matter and my discussion of the law generally which led to the above conclusions; and which will lead to my additional conclusions pursuant to the co-applicants. (v) Analysis and conclusions [20] It is helpful to begin with the relevant sections of the Act which governs proceedings such as this. Sections 28 and 29 govern this matter. Section 31 provides the Tribunal with

Page: 4 Decision No. 808/15 jurisdiction to make a determination as to whether a right to sue is or is not removed. Sections 28 and 29 read as follows: Certain rights of action extinguished 28. (1) A worker employed by a Schedule 1 employer, the worker s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. Any Schedule 1 employer. 2. A director, executive officer or worker employed by any Schedule 1 employer. Same, Schedule 2 employer (2) A worker employed by a Schedule 2 employer and the worker s survivors are not entitled to commence an action against the following persons in respect of the worker s injury or disease: 1. The worker s Schedule 2 employer. 2. A director, executive officer or worker employed by the worker s Schedule 2 employer. Restriction (3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment. Exception (4) Subsections (1) and (2) do not apply if any employer other than the worker s employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor vehicle, machinery or equipment. 1997, c. 16, Sched. A, s. 28. Liability where negligence, fault 29. (1) This section applies in the following circumstances: 1. In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker s entitlement to benefits under the insurance plan. 2. In an action by or on behalf of a worker employed by a Schedule 2 employer or a survivor of such a worker, the worker s Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker s entitlement to benefits under the insurance plan. [21] It would appear clear that pursuant to section 28(1) of the Act, a worker employed by a Schedule 1 employer may not commence an action against any Schedule 1 employer or executive or worker employed by a Schedule 1 employer. The reason for this prohibition is well-known and of long-standing duration. It is often referred to as the historic bargain which, in exchange for insulating employers from suit, provides workers with access to benefits without having to use the court process, through the WSIB. [22] This of course applies in the case of an accident occurring in the course of employment. What unfortunately happened to Savvidis was a deliberate sexual assault, pursuant

Page: 5 Decision No. 808/15 to the conviction registered. Yet it is without any doubt that, pursuant to section 2 of the WSIA, an accident includes a wilful and intention act, not being the act of the worker. A sexual assault would thus be within the ambit of the definition of accident. [23] A number of Tribunal decisions have made that clear. These were referenced in the applicant s casebook, and include Tribunal Decision No. 1802/10, dated September 29, 2010. That case involved a hotel chambermaid being assaulted by a hotel guest, subsequently bringing suit against the various parties including her employer as well as the guest, leading to an application for an order removing the right to sue. Tribunal Decision No. 1802/10 stated in part as follows: [31] Read together, sections 27 and 28 of the WSIA preclude a worker s right of action against his or her own employer for a personal injury by accident for which the worker may claim benefits under the WSIA. Pursuant to section 13, a worker is entitled to claim benefits under the WSIA for a personal injury by accident arising out of and in the course of employment. [32] It is established in the Tribunal s case law that a sexual assault against a worker in the course of employment is considered to be an accident under the WSIA. The definition of accident, contained in section 2, includes a wilful and intentional act, not being the act of the worker. The statutory definition of accident thereby makes it clear that injuries in the course of employment caused by the deliberate acts of others fall within the purview of the WSIA. [33] Several decisions of this Tribunal have considered this issue. Decision No. 712/90 (June 26, 1992) is an early leading case. The plaintiff in that case brought an action for damages against various defendants in respect of a sexual assault that occurred while she was providing janitorial services. In considering the right to sue application, the Panel concluded that a sexual assault was an accident for the purposes of the Workers Compensation Act (the predecessor legislation contained an analogous definition of accident ). The Panel reasoned in part: The Plaintiff was the victim of a vicious sexual assault. The nature of the assault (i.e., a sexual assault as opposed to common assault) creates an initial emotional response that it should be somehow treated differently than other incidents which occur in the workplace. Society regards this form of assault as a particularly heinous crime not normally associated with the provisions of the Workers' Compensation Act. However, in the opinion of the Panel, a logical analysis of injuries sustained as a result of sexual assault compared with injuries sustained from any other assault, leads to the conclusion that, for purposes of the Act, there should be no legal distinction. The Act was intended to provide no-fault compensation benefits to workers for work-related injuries. The legislation deals with the work-relatedness element through the use of the phrases "arising out of and in the course of" in subsection 3(1). If a worker sustains a personal injury by accident arising out of and in the course of her employment, it matters not whether the injury results from an assault (sexual or otherwise) or a faulty piece of production machinery. In our view, the Plaintiff was involved in an "accident" which, under subsection 1(1)(a) includes a "wilful and intentional act, not being the act of the worker". The attack by the unknown assailant is a wilful and intentional act. Relying upon the above definition, we are satisfied that, under the Act, the Plaintiff sustained a personal injury by "accident".

Page: 6 Decision No. 808/15 [34] This approach has been followed in subsequent decisions. For example, in Decision No. 286/96 (1996), 40 W.C.A.T.R. 122, the Panel found that the worker s right to sue her Schedule 1 employer for a sexual assault in the course of employment was removed by the applicable worker s compensation legislation. The plaintiff s right to sue the alleged assailant, who was also a co-worker, was not removed by the Act. The Panel held that the alleged assailant had taken himself out of the course of employment through the deliberate act of committing a sexual assault. [35] Similarly, in Decision No. 2282/05 (2006), 78 W.S.I.A.T.R. (online), the Panel found that the plaintiff s civil action against her employers for a sexual assault was removed by the WSIA. In that case, the employers included individuals who were in a partnership. Decision No. 2282/05 cited several decisions of the Tribunal which have held that deliberate and malicious acts of interference committed against a worker are accidents for the purposes of the WSIA. The plaintiff s right to sue the assailant was not removed. [37] Subsequent decisions have not specifically addressed the issue of whether the sexual assault arose out of the employment, suggesting that the work-relatedness of the assault is usually implicit where it occurred in the course of employment. In this application, there was no argument that the sexual assault of the plaintiff did not arise out of employment. I would adopt the work-relatedness test articulated in Decision No. 712/90 to find that the sexual assault in this case arose out of and in the course of employment. [41] There was no dispute that Ms. Black was a general manager of Homewood Suites and met the definition of worker within the meaning of the Act. Subsection 28(3) of the WSIA provides that, where the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, the right to sue is taken away if it shown that the workers were acting in the course of their employment. [42] The Tribunal s general approach to the application of subsection 28(3) was summarized in Decision No. 2273/03 (2004), 71 W.S.I.A.T.R. 115: It is settled law in Ontario that the negligence of the workers of a Schedule 1 employer, which gives rise to an injury to another worker of a Schedule 1 employer, need not be contemporaneous with the injury to fall within the scope of subsection 28(3). That subsection, and its predecessors, subsections 10(9) of the pre-1997 Workers Compensation Act and subsection 8(9) of the pre-1989 Workers Compensation Act, have consistently been interpreted as only requiring that the workers in issue be in the course of their employment when the alleged negligence act was committed, as determined on the basis of the pleadings. This principle was established in the decision of the Ontario High Court of Justice in Meyer and McDermott v. the WCB et al. (1985), 15 OAC202 (Ont. C.J.), upheld (1988), OAC398 (Ont. C.A.). The Court s reasoning has been consistently followed by Tribunal Panels and Vice-Chairs. [44] This approach is equally applicable to the allegations in this appeal. All of the allegations against Ms. Black have a work-related connection. The allegations of negligence against Ms. Black include failing to change the cleaning policy, refusing to allow the plaintiff to work with a co-worker, and threatening to discipline the worker if she did not comply with the cleaning policy of Homewood Suites. There is no basis for concluding that the allegations of negligence occurred outside of the scope of Ms. Black s duties as a managerial employee. [45] The circumstances of the action against Ms. Black are clearly distinguishable from the cases in which the Tribunal permitted an action for sexual assault to proceed against a co-worker or employer who was the alleged assailant. The historical trade-off between workers and employers that gave rise to the workers' compensation scheme intended to protect workers and employers from lawsuit for acts of carelessness or

Page: 7 Decision No. 808/15 recklessness that might be characterized as negligent, but not to protect a worker who forms the intent to cause harm to another person in the workplace. The WSIA creates a no-fault insurance scheme; accordingly, a worker is not removed from the course of employment through acts of negligence or recklessness. See, for example, Decision No. 949/04 (2005), 75 W.S.I.A.T.R. (online). [46] In this application, there was no evidence or argument to support a conclusion that Ms. Black s conduct was such that she removed herself from the course of employment in relation to the allegations of negligence. [47] Accordingly, I find that the plaintiff s action for negligence against Ms. Black is also removed by the WSIA [emphasis added]. [24] The facts in that case are quite similar to the facts before me, including that Tribunal Decision No. 1802/10 addressed the wrongful dismissal element to the civil action it had before it. In this matter, also, there is a wrongful dismissal component as well as a claim for wrongful eviction. It appears to me that it was conceded by the applicant and co-applicant that those elements of the plaintiff s claim cannot be barred by the WSIA. I would agree with that properly made admission, and accordingly conclude that those aspects of the within action are not barred. [25] Yet as the above-referenced decision makes clear, the actions against the worker's own employer, and its employees including the executive officer, must be barred. Savvidis was at work, and was attempting to do her job when Bekteshi committed the criminal offence for which he was convicted. [26] Similarly, the claims that Davis and Rogers were negligent in the performance of their duties would not be sufficient without much more to remove them from being in the course and scope of their employment activities in this matter. As is discussed in the above-excerpts from Tribunal Decision No. 1802/10, the Act is intended to protect those from lawsuits because of carelessness or recklessness, even that which might be described as negligent conduct. It is on that basis that the within negligence claims cannot proceed against Community, Davis or against the interested party Rogers. [27] Addressing the position of the respondent Bekteshi, it is clear that the civil action against him may continue. I so conclude because it is obvious that he was not performing his duties as a tradesman when he sexually assaulted Savvidis. Rather, if Bekteshi could have been described as an employee, his tortious conduct was clearly outside the scope and course of his duties as a tradesman for Byng. [28] See the discussion in Tribunal Decision No. 494/04 dated May 11, 2004. That case involved a grocery store employee who, when subjected to a rather vicious hazing ritual, was pelted with rotting fruit and what that decision described as buckets of rotting slop. After a review of various Tribunal decisions it was concluded that the tortfeasors in that case by their misconduct took themselves outside of the scope and course of their employment. Tribunal Decision No. 494/04 summarized the matter thusly: [56] This Panel also concurs with the above-quoted excerpt from Decision No. 286/96. The commission of a malign act for purposes entirely unrelated to the workplace activity cannot fit under the protective umbrella of compensation because the impugned conduct is somehow arguably reasonably incidental to work. [29] I find that the above succinctly explains why the action against Bekteshi is not removed. Moreover, as Bekteshi is acknowledged to be an independent contractor and not a worker, he

Page: 8 Decision No. 808/15 would not in any event be able to avail himself of protection under the WSIA. Rather, given his status, he would be called a stranger to the Act. [30] This leads to my conclusions pertaining to the co-applicants Byng Group, et al. When considering the relevant sections of the Act, in my view, despite Mr. Pullan s able submissions, it is important to focus on section 28(3). That provision reads as follows: Restriction 28 (3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment. [31] First, the language of the section is, I find, clear. It applies if workers of an employer were acting in the course of their employment. In this case, we are not dealing, however, with a worker of the co-applicant acting in the course of employment because, again, Bekteshi was not a worker. Rather, as admitted by all parties present, he was an independent contractor engaged by Byng, rather than being an employee hired by that co-applicant. As such he could not be either a worker nor acting in the course of employment at the relevant time. [32] Moreover, the restriction in this subsection is that section 28(1) extinguishes certain actions only if the workers were acting in the course of their employment. In this case, leaving aside for the moment that Bekteshi was not a worker, in any event when he committed the sexual assault, as discussed above he was acting outside of the course and scope of his employment as a tradesman. The commission of the malign act was clearly outside of the course and scope of his ordinary employment duties - or, more accurately, outside of the scope of the tasks for which this independent contractor was engaged by Byng. [33] Finally, while Byng is a Schedule 1 employer and was at the relevant time, that alone does not immunize it from suit in this matter. Again, it did not have a worker who committed the malign act. Rather, the co-applicant chose to engage an independent contractor. Again, that individual is not covered by but is a stranger to the Act. As such, no protection from suit arises for the co-applicants in these circumstances. [34] On that basis, it is my view that the lawsuit against the co-applicants can continue, subject to the Court s ruling on whether the named co-applicant individuals can be subject to suit or if their liability is subsumed within the corporate defendant Byng. That, however, is a matter for the Court s jurisdiction.

Page: 9 Decision No. 808/15 DISPOSITION [35] Should the within civil action be revived by Court order, the conclusions outlined at the outset and throughout this matter apply. To summarize: 1. The application by Community Home Solutions Limited and Davis is granted. The respondent s right to commence an action against the applicants for negligence is taken away by the WSIA. 2. The action in negligence brought against Rogers, then an employee of the applicant Community Home Solutions Limited, is similarly extinguished. 3. The action alleging wrongful dismissal and/or wrongful eviction is not extinguished, as these issues are not within the ambit of the WSIA. Such claims may continue, subject to whatever amendments to the pleading which counsel and the parties may require and the Court may permit. 4. The action against Bekteshi may continue for reasons stated herein. 5. The action against the co-applicants Byng Group and the named individuals may also continue for reasons stated herein, subject to the rights of the individuals to bring the appropriate motion in the within civil action pursuant to the law of master and servant and that of vicarious liability. DATED: May 13, 2015 SIGNED: J. Josefo