FD: FD: DT:D DN: 977/88 STY: HRYHORUK v. EASBY PANEL: Strachan; Cook; Nipshagen DDATE: 100489 ACT: 15, 8(9) KEYW: Section 15 application; In the course of employment (reasonably incidental activity test); In the course of employment (access roads); In the course of employment (personal activity). SUM: A collision occurred on the main access road through the employer's parking lot involving the plaintiff, who was leaving after completion of his shift, and the defendant, who was arriving for his shift. The accident occurred about 45 minutes after the completion of the plaintiff's shift and about 20 minutes prior to the start of the defendant's shift. The passage of time following completion of work may gradually transform an activity from one that is reasonably incidental to work to one that is primarily of a personal nature. The plaintiff had been sitting in his car talking to a friend, past the time that would have been best to leave the parking lot. By the time he left, the traffic flow was primarily incoming. This incoming flow could take up all the lanes of traffic. The primary flavour of the worker's acitivity was personal. He was not in the course of employment. His right of action was not taken away. PDCON: TYPE:15 DIST: DECON: Decision No. 150 (1986), 1 W.C.A.T.R. 201; Decision Nos. 553, 547/87 BDG:Claims Services Division Manual, s.3(1), p.47, Directive 21 IDATE: HDATE:220289 TCO: KEYPER:R. Mahoney; W. Linden; D. Forster XREF: COMMENTS: TEXT:
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 977/88 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 Supreme Court of Ontario at the City of Toronto as Action 14524/86. B E T W E E N: JOHN HRYHORUK Applicant in this application and Defendant in the Supreme Court of Ontario Action. - and - STEVEN EASBY Respondent in this application and Plaintiff in the Supreme Court of Ontario Action.
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 977/88 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 Supreme Court of Ontario, at the City of Toronto, as Action No. 14524/86. B E T W E E N: JOHN HRYHORUK Applicant/Defendant - and - STEVEN EASBY Respondent/Plaintiff WORKERS' COMPENSATION ACT SECTION 15 APPLICATION
WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 977/88 This Section 15 Application was heard on February 22, 1989, by: I.J. Strachan: Panel Chairman, B. Cook : Tribunal Member representative of workers, G. Nipshagen : Tribunal Member representative of employers. THE SECTION 15 APPLICATION This application under section 15 of the Workers' Compensation Act (the "Act") arises out of a motor vehicle accident on April 4, 1986. A collision between the plaintiff's motorcycle and the defendant's four-wheel vehicle gave rise to the plaintiff's general action for damages. The Applicant is the defendant John Hryhoruk represented by his lawyer R. Mahoney of the law firm Lyons, Goodman, Iacono, Smith & Berkow. The Respondent is the plaintiff Steven Easby represented by his lawyer W. Linden of the law firm Perry and Outerbridge. General Motors of Canada Ltd. was represented by its lawyer, D. Forster, a member of its legal department. THE EVIDENCE The Panel had before it the Applicant's Section 15 Statement together with the Respondent's Section 15 Statement. Both Mr. Hryhoruk and Mr. Easby testified at the hearing. The Panel received submissions from Mr. Mahoney and Ms. Linden. THE NATURE OF THE CASE At approximately 4:15 p.m. on April 4, 1986, two vehicles collided on the main driveway of the General Motors parking lot, located adjacent to Park Road South in the City of Oshawa. The plaintiff was proceeding westbound along the driveway on his 1981 Yamaha motorcycle, intending to begin his shift at General Motors at 4:42 p.m. The defendant had completed his shift at General Motors at 3:31 p.m. and was making a right turn in his 1980 Suzuki automobile to proceed in an easterly direction along the main driveway. The main driveway will accommodate three lanes of traffic. Both Mr. Hryhoruk and Mr. Easby were, at the time of the accident, employees of General Motors. Both men worked on the assembly line. The main driveway and parking lot are maintained, serviced and controlled by General Motors' personnel. The basic facts of the accident are not in dispute.
The primary issue before the Panel is whether Messrs. Easby and Hryhoruk were in the course of their employment at the time of the accident and whether the right of action against the Applicant can be sustained. Section 15 of the Act provides: 15 Any party to an action may apply to the Appeals Tribunal for adjudication and determination of the question of the plaintiff's right to compensation under this Part, or as to whether the action is one the right to bring which is taken away by this Part, or whether the action is one in which the right to recover damages, contribution, or indemnity is limited by this Part, and such adjudication and determination is final and conclusive. Section 8(9) of the Act provides: 8(9) No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependent 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. (emphasis added) If the Panel concludes that Mr. Hryhoruk and Mr. Easby were in the course of their employment, then the plaintiff's right of action is taken away by reason of section 8(9) of the Act. THE PANEL S REASON (i) WCB policy As noted in numerous Tribunal decisions, case law generally supports the proposition that injuries sustained by a worker on a parking lot owned and operated by an employer as part of the employer's business premises, are compensable. WCB Directive 21 includes parking lots controlled by the employer in the definition of "Employer's Premises". However, the Board Directive then attempts to remove incidents involving automobiles, motorcycles, or bicycles
from the compensation plan by introducing into the directive the concept of an "instrument of added peril". WCB Directive 21, under section 3(1) in the Claims Services Division Manual, adopts this position and provides in Part A of the Directive, which Part is entitled "In The Course Of Employment": The employer's premises are defined as the building, plant or location in which the worker is entitled to be, including entrances, exits, stairs, elevators, lobbies, parking lots, passageways and roads controlled by the employer for the use of the workers as access to and egress from the work site. (emphasis added) Part B of the Directive entitled "Arising Out Of Employment" provides: An accident shall be considered to arise out of the employment when it happens on the employer's premises as defined, unless at the time of the happening of the accident: - the accident is occasioned by the injured worker using, for personal reasons, any instrument of added peril such as an automobile, motorcycle or bicycle, except when the accident was caused by the condition of the road or happening under the control of the employer, or - the worker is performing an act not incidental to his work or employment obligations. Directive 21 recognizes that the worker may move outside the course of his employment by reason of a change in the nature of this activity, i.e., by "performing an act not incidental to his work or employment obligations". The Applicant in this case argues essentially that the two workers were performing acts incidental to their employment obligations. The Respondent argues that the acts were not incidental to their employment obligations. (ii) The Applicant's position - WCAT Decision No. 150 In Decision No. 150, the Panel concluded that a worker, who had exited from a parked vehicle on the employer's lot, was in the course of employment when he injured his leg. The Panel found, at page 6 of that decision, that the worker "...had crossed over the line between rider and walker and hence was in the course of his employment, about to embark towards his place of work on his employer's premises." Although it was not necessary to consider WCB Directive No. 21 to reach the above conclusion, the Panel in Decision No. 150 went on to comment on that Directive. In so commenting, the Panel indicated its approval of a geographic test to determine whether a worker was in the course of employment at the time of an accident. That panel noted that "it is much easier and less contentious to draw a distinct line, either at the entrance to the parking lot or at the entrance to the plant, than it is to embark on a scrutiny of the movements of
the worker and the employer in order to decide whether the injury is covered by the Act". Essentially the Panel indicated approval of a test whereby the parking lot entrance could determine compensable or non-compensable incidents and did so essentially on grounds of administrative convenience. Counsel for the applicant cited the following remarks at page 5 of Decision No. 150: It is reasonable to conclude that a worker is "in the course of his/her employment" within the meaning of the Act, upon arrival at the employer's premises, including the company owned parking lot, for the purposes of reporting to work to carry out duties for the employer. This is certainly an activity incidental to the worker's employment. The accident would then be presumed to have arisen out of the employment. The presumption in section 3(2) could then be rebutted by finding that the worker's conduct is of a purely personal nature. Or, in some circumstances, compensation may be denied on the basis of the worker's serious and wilfullness conduct. However, the mere fact of driving a vehicle on the employer's parking lot does not necessarily change the character of the resulting accident. Counsel for the Applicant noted that WCAT Decision No. 553 held that the use of a company parking lot was not an act of a purely personal nature taking the employee out of the course of employment. Since both Mr. Easby and Mr. Hryhoruk were on the employer's parking lot or driveway, the geographic test suggested by Decision No. 150 would lead to the conclusion that both workers were in the course of their employment. Accordingly section 8(9) of the Act would apply to remove the plaintiff's right of action. (iii) The Respondent's position - WCAT Decision 547/87 The Panel in Decision 547/87 disapproved of the application of the geographical test as the primary test and concluded that the major factor in determining whether a worker is in the course of his employment is the nature of the activity performed at the time of the accident. The majority in that decision characterized this approach as a "work relatedness test". In commenting on the geographic test suggested in Decision No. 150, the majority in Decision 547/87 stated: Location of the accident may be one factor in determining whether or not the worker was in the course of his employment at the time of the accident, but it should rarely be the determining factor. Other factors such as: 1. the nature of the activity itself; 2. time of the accident (whether within normal working hours);
3. control over the activity exercised by the employer; 4. relationship to the principal occupational activities; and 5. the type of equipment involved in the accident; are also important factors. The minority opinion in Decision 547/87 also indicated that the primary focus should be upon the nature of the activity performed at the time of the accident and whether that activity is reasonably incidental to employment, but disagreed with the other factors proposed by the majority. Counsel for the Respondent submits that focusing on the nature of the activity performed at the time of the accident and the actual time of the accident leads to the conclusion that the Applicant, Mr. Hryhoruk, was not in the course of his employment. (iv) The Panel's conclusions The Panel has concluded in this case that it is not necessary to enter into a detailed analysis of Decisions 150 and 547/87 or any other parking lot decisions released by the Tribunal. The Panel is in agreement that the major factor in determining whether the workers were in the course of employment was the nature of the activity performed at the time of the accident. With respect to this factor, the testimony of Mr. Hryhoruk is instructive. Mr. Hryhoruk testified that the main driveway runs down the centre of the parking lot and represents the only exit or entrance. Incoming and outgoing vehicles must both use this driveway to enter and exit. There are no lines on the main driveway and no mechanical signalling devices to control traffic. Depending upon the time of day, incoming and outgoing traffic ebbs and flows like a tide. The evidence indicates that immediately prior to the commencement of a shift, all three lanes are virtually filled with incoming traffic. Immediately after the conclusion of a shift, all three lanes are virtually filled with outgoing traffic. At other times, two lanes head in one direction (either incoming or outgoing) and one lane in the other direction. It appears to the Panel to be the epitome of chaos and a prescription for disaster when it comes to traffic control. Mr. Hryhoruk testified that he completed his shift at 3:31 and headed directly for his vehicle in the parking lot. He testified that, because it was Friday and a payday, he agreed to drive his friend from the parking lot to the bank in order to cash his paycheque. Mr. Hryhoruk also testified that it was his intention to return from the bank with his friend to the General Motors parking lot, where his friend could then pick up his car and drive home. He indicated that the trip to the bank would take approximately 15 minutes and it was not on his way home. He testified that his vehicle was parked in an aisle approximately 60 feet from the Park Road exit. He also testified that a motor vehicle accident on Park Road had impeded the flow of traffic. Mr. Hryhoruk testified that he and his friend sat in Mr. Hryhoruk's vehicle and talked. He could not recall whether the motor was running or
whether the radio was on. He testified that, although he had completed his shift at 3:31, he did not attempt to leave the parking lot until 4:15 because he was talking to his friend and waiting for a suitable opportunity to leave the parking lot. The Panel is satisfied that the collision between the plaintiff's motorcycle and the defendant's automobile took place in the most southerly lane or the southerly side of the centre lane. The Panel also concludes from both workers' testimony that by 4:15, the outbound stampede of vehicles following the conclusion of the 3:30 shift had subsided and the predominant traffic flow was in the westbound direction into the parking lot and plant. The accident took place approximately 45 minutes after the conclusion of the dayshift (i.e. the 7:00 a.m. to 3:30 p.m. shift) and approximately 20 to 25 minutes before the commencement of the 4:42 p.m. shift. Mr. Hryhoruk testified that he and his friend simply sat in his vehicle, talked and watched the accident on Park Road while waiting for an appropriate opportunity to exit on the main driveway. The question arises as to whether Mr. Hryhoruk was in the course of his employment and whether his conduct was reasonably incidental to his employment obligations. Even if the use of the parking lot at the end of or beginning of the work day constitutes activity which is reasonably incidental to a worker's employment obligations, for a worker to be in the course of employment the activity must be reasonable having regard to all of the circumstances surrounding the accident. Normally an employee using an employer's parking lot would be expected to exit from that lot within a reasonable time from completion of a work shift. In the absence of evidence to the contrary, the passage of time following completion of the work shift may gradually transform the activity from one reasonably incidental to an employment obligation to one that is primarily of a personal nature. If the activity is primarily of a personal nature, it is no longer reasonably incidental to employment and the worker cannot be said to be in the course of employment. To take an extreme example, if a worker elects to spend the night in his vehicle on the employer's parking lot following completion of a day shift, it is unreasonable to expect that the Act should cover that individual simply because of the geographical location of his automobile. There may be some element of "work relatedness" in that situation; however it is not sufficient, in the opinion of this Panel, to bring the worker within the ambit of the Act. In the case before the Panel, when Mr. Hryhoruk chose to remain in his vehicle until 4:15, despite having completed his shift at 3:30 p.m., his activity gradually took on the character of a primarily personal activity. We are of the opinion that, if as he stated, his purpose was to await the best opportunity to leave the parking lot, the best opportunity would have occurred when all three lanes of the main driveway were occupied with outgoing traffic. At the very least, it would be expected that a person interested in leaving the parking lot would exit when two of the three lanes were outgoing. Leaving the parking lot at a time when the traffic flow had reversed and was primarily incoming, suggests that the primary reason for the delay in departure was the socializing between Mr. Hryhoruk and his friend. The primary flavour or character of the activity is personal. Since the activity is primarily of a personal nature, Mr. Hryhoruk is not considered to have been in the course of his employment.
THE DECISION The application is denied. The plaintiff's right of action is not taken away by the provisions of the Act. DATED at Toronto, this 10th day of April, 1989. SIGNED: I.J. Strachan, B. Cook, G. Nipshagen.