Trying to Stop Shoplifter While on a Break Not "In the Course of Employment": WSIAT

In a recent decision, the Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or the "Tribunal") has ruled that an employee of a supermarket can sue her employer and a third-party for injuries she incurred when she was run over in the parking lot by a suspected shoplifter.  The employee was on a break at the time that she became involved in trying to apprehend the shoplifter. In its decision, WSIAT determined that neither the employee nor the personal defendant (the grocery manager) were "in the course of employment" when the employee was injured, and that she was not therefore precluded from pursuing a civil claim.

In Guizzo v. Metro Ontario Inc., the Tribunal initially focused on whether it could be said that the grocery manager (Mr. Hughes, a defendant in the action by cross-claim) was in the course of employment, taking into consideration the factors of time, place and activity. At the point when Mr. Hughes pursued the suspected shoplifter, he had completed his shift.  The pursuit led to a shared parking lot that was not part of the employer's premises, and the employer had a violence prevention policy that prohibited employees from trying to apprehend thieves. Pursuing shoplifters was not part of the defendant's job, in any event.

Likewise, the Tribunal found that Ms. Guizzo was on a break, and the employer had an expectation that she would be available to be called back to work if needed.  She had varied from her usual routine of spending her breaks near the exit door of the store.  The employer did not expect the employee (a cashier) to attempt to stop a suspected shoplifter, and such activity was expressly prohibited by the violence prevention policy.  Ms. Guizzo's injuries were incurred in the parking lot, which was not part of the employer's premises.

Under the WSIB's policies (OPM Document No. 15-02-02, "Accident in the Course of Employment"), an accident is deemed to be work-related where "the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment" (emphasis added).  However, OPM Document No. 15-03-04 specifies that "[w]orkers are not in the course of employment in public parking areas not under the employer’s control".  Moreover, where an employee is doing something that is outside their duties, or that he or she was not reasonably expected to do, this will generally take an employee outside the course of employment (OPM Document No. 15-03-08).  In addition to Board policy, the Tribunal also considered a list of factors that had been determined to be relevant in previous decisions:

1. Whether the employer derived a benefit from the activity performed by the worker.

2. Whether the worker was paid by the employer for the activity.

3. Whether the accident occurred while the worker was using equipment or materials supplied by the employer.

4. Whether the risk to which the employee was exposed was the same as the risk to which he would normally be exposed in the course of his employment.

5. Whether the activity was a result of instructions received by the employer.

6. Whether the accident occurred during the worker's normal working hours or overtime hours.

7. Whether the activity was reasonably incidental to the worker's normal employment duties.

In reviewing these factors, the Tribunal concluded that neither employee was doing something from which the employer derived a benefit, and that the time and place of the accident suggested that neither was performing their duties or an activity "reasonably incidental" to those duties when the accident occurred.

Despite the obvious connection with the workplace, the Tribunal concluded that neither Ms. Guizzo nor Mr. Hughes were "in the course of employment" when Ms. Guizzo was injured.  Because of this finding, the WSIAT concluded that section 28 of the Workplace Safety and Insurance Act did not remove Ms. Guizzo's right to sue for her injuries.

For employers, the moral of the story is that despite WSIB coverage, there will still be instances in which an employee's injuries may not be covered by the statutory regime.  Where employees are engaged in activities that take them outside the normal course of their duties (even where the employer has a policy prohibiting such behaviour), an employee may still retain a right to bring a civil action naming the employer.  It must be remembered, however, that this decision does not determine fault with respect to the employee's injuries.  It remains open to the defendants to argue contributory negligence on the part of the plaintiff, relying on the employer's violence prevention policy.

Do you have questions about what it means to be "in the course of employment"?  Need guidance on a WSIB claim or civil action by an employee?  Contact Lance Ceaser for expert advice.





 
 

WSIAT Strikes Down Exclusion of Non-Traumatic Stress Claims Based on Charter Violation

In an April 29, 2014 decision, running to 79 pages long, the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) heard a constitutional challenge of subsections 13(4) and (5) of the Workplace Safety and Insurance Act.  Under those provisions, employees can only claim compensation for mental stress if it arises as “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of his or her employment”.  The claimant was a nurse who claimed that she had suffered from a mental disability following years of abusive and humiliating behaviour by a doctor at the hospital where she worked.  By virtue of the exclusionary language (and the Workplace Safety and Insurance Board’s Policy 15-03-02 (“Traumatic Mental Stress”), her claim was dismissed.  As a result, the employee brought a challenge under the Canadian Charter of Rights and Freedoms (the “Charter”) on the basis that the legislation discriminated against her, contrary to section 15, and that this limitation on her right to equal treatment could not be justified.

After an extensive review of the evidence from two experts on the causative relationship between workplace stress and mental illness, the WSIAT Panel concluded that the claimant had established that there was a moderate association between workplace stressors and forms of illness, such as depression and adjustment disorder.  Moreover, the Panel accepted that individuals with mental illness brought on by longer-term stressors (such as a pattern of workplace bullying) did experience substantive discrimination in being excluded from coverage.  While individuals with physical injuries that arose due to prolonged exposure or gradual onset were protected from income loss, individuals with mental disabilities did not receive the same treatment.  The Panel also rejected the argument on behalf of the Attorney-General that these types of claims were excluded due to the virtual impossibility of being able to establish that they were caused or significantly contributed to by workplace issues. The Panel observed that establishing a causal link between work activities and other physical ailments can be equally challenging, but that this is no reason to exclude coverage.

In short, the Panel found that the denial of equal treatment for claimants with non-traumatic stress conditions was contrary to the Charter, as it relied on or supported stereotypes of persons with mental disabilities, and that the Attorney-General had not established that it was a “reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society”.   As a result, Tribunal declining to apply subsections 13(4) and (5) of the Act, or the Traumatic Mental Stress Policy.  Given that the Panel had previously held that the claim would succeed, but for those provisions and the Policy, the Tribunal upheld the appeal and the claimant was granted entitlement to benefits.

As was argued by the Attorney-General at the hearing of this matter, there is fear that permitting WSIB claims of this nature will “open the floodgates”.  However, it is too early to tell.  It should be acknowledged that prior to 1997 these provisions were not in the Act, and it does not appear that mental stress claims threatened the financial viability of WSIB at that time.  It is also quite possible that the Government will take this matter to court on judicial review.  Even so, the courts tend to show great deference to the Board and the Tribunal due to their special expertise.  Stay tuned for any further developments …

Do you have a WSIB issue or need general advice on the Act?  Feel free to contact Lance Ceaser at Ceaser Work Counsel for cost-effective, expert guidance.