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Within the latest WSIAT case of Choice No. 1462/23, the Tribunal needed to take into account whether or not the respondent may avail himself of the “government officer exception” in a Proper To Sue Software arising from an motion commenced by the respondent with respect to accidents he sustained from a motorized vehicle accident. On this case, the respondent was working a car-hauler transport car, which was parked on the facet of a freeway as a consequence of tire restore.
Throughout this time, a transport car being operated by the applicant collided with the respondent’s parked car, leading to accidents to the respondent. The respondent initiated a lawsuit towards the applicant who then commenced a Proper To Sue Software to bar the respondent’s motion below part 28 of the Office Security and Insurance coverage Act (“WSIA”).
The Software was granted, affirming the respondent’s entitlement to advantages below the insurance coverage plan and precluding additional pursuit of a civil motion below part 28 of the WSIA, which prohibits “staff” from commencing an motion towards another Schedule 1 “employee”, “employer” or “government officer.”
The respondent argued that he was not barred by part 28 of the WSIA as a result of he was an “government officer” on the time of the accident. Part 11(2) of the WSIA specifies that “the insurance coverage plan doesn’t apply to staff who’re government officers of an organization.” This is called the “Government Officer Exception.” On this case, the respondent was the only government officer of his company with no workers.
The applicant contended that the Government Officer Exception doesn’t merely apply to anybody who unilaterally designates themselves as an government officer of an organization. The Tribunal should nonetheless take a look at the Organizational Check outlined in OPM Doc No. 12-02-01, “Employees and Impartial Operators,” to find out whether or not the person in query is a “employee” for the needs of the WSIA.
The Vice Chair concurred with the applicant, discovering that merely holding the title of an “government officer” in an organization’s articles of incorporation is inadequate to search out that the exception applies; particular person have to be an government officer “in substance” as properly. Particularly, the Tribunal should assess whether or not the person is working a enterprise or solely utilizing an included construction, with the events’ intentions on the time of the incident being pertinent. Based mostly on the Organizational Check, the Vice-Chair decided that the respondent was below a “contract of service” and certified as a “employee” as outlined by the WSIA. The respondent didn’t personal the truck they operated and didn’t have the potential to earn a revenue, which strongly recommend that the respondent was a “employee”.
Additionally, the respondent didn’t have management of his work schedule. He needed to “adjust to directions on what, when, the place, and the way to carry out the work.” He labored solely for one firm on a full-time foundation. He couldn’t refuse a job and couldn’t have another person full a job for him i.e., he couldn’t subcontract work. These examples are all robust indicators that the respondent was a “employee”.
The respondent argued that though there was no potential for revenue there was a danger of loss as he needed to pay for any injury sustained to the car whereas he was working it. The Vice-Chair concluded:
I don’t discover, nonetheless, {that a} danger of loss absent a possibility for revenue helps a discovering of unbiased operator standing; for my part, it’s merely a contract of service with an unfavorable time period which shifts danger to the employee.
The Vice-Chair additionally concluded that though the respondent was paid by cheque, with none deductions, didn’t outweigh the opposite factual parts which help a willpower that the Respondent was in a “contract for service” and due to this fact, a “employee.”
Key Takeaways
This case exhibits that the Tribunal will not be afraid to pierce the company veil to disclose a “employee” in an government’s clothes. Simply because a person could purport to be an “government officer” doesn’t imply they’re an “government officer” below the WSIA. You will need to take a look at the connection, function, and duties a person has of their enterprise and employment. The Government Officer Exclusion is meant to exclude from the insurance coverage plan people in Schedule 1 firms that carry out managerial or administrative roles the place the chance of a office damage is considerably lower than that of a Schedule 1 “employee”.
Additionally, it is very important observe that the Government Officer Exclusion doesn’t go each methods. In different phrases, Part 28 nonetheless bars Schedule 1 “staff” from suing Schedule 1 “government officers”, whatever the exclusion (see my earlier weblog: Executive Protection)
Lastly, the Government Officer Exclusion won’t apply to “government officers” who work for a Schedule 1 employer within the enterprise of development. Beneath most circumstances, protection below the insurance coverage plan is necessary for “government officers” within the development enterprise.
Decision No. 1462/23, 2023 ONWSIAT 1820 (CanLII)
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