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In a latest Proper to Sue Software (Determination No. 229/23), the Office Security and Insurance coverage Appeals Tribunal addressed a possible gray space within the laws that appeared to come up when making use of the exception underneath part 28(4) of the Office Security Insurance coverage Act (WSIA).
In Determination No. 229/23, JM was on a piece retreat along with her colleagues when she was injured whereas working a snowmobile. JM was taking part in a guided tour on a path within the Haliburton wilderness on the time the accident occurred. JM had rented the snowmobile from Haliburton Sled Rental (HSR). The guided tour was being carried out by an worker of HSR named MA. Whereas on the tour, JM misplaced management of the snowmobile and suffered severe accidents. She sued HSR for damages. HSR then commenced a Proper To Sue Software earlier than the Tribunal to have JM’s civil motion taken away pursuant to Part 28(1) of the WSIA.
There was no dispute that JM was a “employee” for a “Schedule 1 Employer” who was in the middle of her employment on the time of the accident. Additionally, the events agreed that HSR was the truth is a “Schedule 1 Employer” and MA was a “employee”. As such, it might seem that the entire situations to convey a profitable Proper to Sue Software had been glad. Nonetheless, the difficulty on the listening to was whether or not the exception underneath part 28(4) of the WSIA utilized. It reads as follows:
(4) Subsections [28](1) and [28](2) don’t apply if any employer apart from the employee’s employer provided a motorized vehicle, equipment or gear on a purchase order or rental foundation with out additionally supplying staff to function the motorized vehicle, equipment or gear.
Basically, the exception underneath part 28(4) permits a “employee”, who falls underneath part 28(1) or (2) of the WSIA, to begin an motion towards one other “Schedule 1 or 2 employer” or “employee” if the damage arose out the operation of motorized vehicle, equipment, or gear provided by an employer, apart from the “employee’s” employer, who didn’t additionally provide “staff” to function the motorized vehicle, equipment, or gear.
The Tribunal defined the rationale of the exception underneath part 28(4), citing Determination No. 275, April 7, 1987:
It attracts a distinction between a scenario the place an employer merely provides a automobile and a scenario through which that employer additionally provides staff. If the employer additionally provides staff part 14 and eight(9) [now Section 28 (4)] apply and the employer is immune from swimsuit for an damage for which advantages are payable underneath the Act, and he might be relieved of any portion of evaluation which is in any other case liable to be charged towards him. These items don’t apply the place the employer is merely supplying equipment. With out the important ingredient of the provision of a employee, who might be injured underneath the Act, part 8(9) doesn’t apply. Why would this be? It appears clear that the reason being that the Staff’ Compensation Act is a statute which supplies for the compensation of injured staff. It doesn’t present for the decision of disputes that relate solely to the provision of kit or a plan for financing vehicles by way of leasing. It isn’t a statute which issues itself with property harm or questions of negligence within the provision of leased autos. (emphasis added)
HSR argued that Part 28(4) didn’t apply as a result of it had provided a employee (i.e., MA) with the rented snowmobiles. MA was tasked with demonstrating the usage of the snowmobiles to JM and the opposite snowmobilers on the tour. Additionally, MA acted as a tour information for the group of snowmobilers. As such, it was argued that part 28(4) didn’t apply as a result of HSR was “offering a employee who could also be injured.” HSR argued that this differed from earlier choices involving automotive rental corporations as a result of in these circumstances the corporate had no additional function after handing over the keys to the automobile; whereas, on this case, HSR continued to be concerned with the operation of the snowmobile even after it was rented. HSR argued that making use of part 28(4) to guided excursions involving motor autos created a gray space that was by no means contemplated by the legislature. In actual fact, there was no prior case regulation on level.
The Tribunal acknowledged the novelty of HSR’s argument, however concluded that this situation didn’t fall inside a gray space. The Tribunal held that the language of the part 28(4) was not ambiguous:
Though MA was arguably a employee, he was not provided to function the snowmobile rented to JM. MA was seated on and answerable for a special snowmobile on the time of JM’s accident. JM was the only operator of the snowmobile on the time of the accident.
…..
The rental of motor autos, gear or equipment for leisure, enterprise, development or different functions is commonplace in Ontario; I don’t discover that that is an ambiguous scenario which the Legislature failed to contemplate. It’s notable, on this regard, that the statutory language of the exception has not modified considerably between the Pre-1985 Staff’ Compensation Act, the Pre-1989 Staff’ Compensation Act, the Pre-1997 Staff’ Compensation Act, and the Office Security and Insurance coverage Act.
The Tribunal held that it was immaterial as as to whether MA was inside proximity of the accident when it occurred. MA was not working the snowmobile that JM was using when the accident occurred. As such, a plain studying of part 28(4) implies that it applies to this explicit case and the JM’s civil motion isn’t taken away by part 28(1).
Commentary
Regardless that this determination was not notably ground-breaking, it did present some uncommon perception into the rationale of part 28(4), which is commonly ignored and misunderstood attributable to its dense and considerably complicated language.
Moreover, there’s dearth of latest case regulation on this part which truly explains the intent and goal of Part 28 (4), which is clear by the actual fact circumstances from the late Nineteen Eighties had been being cited. Contemplating the shortage of contemporaneous case regulation on this matter, we had been due for a remake, in contrast to Liam Neeson’s The Gray.
Decision No. 229/23, 2023 ONWSIAT 319 (CanLII).
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