Owner of employer's building qualified as Schedule 1 employer with one employee
An Ontario court has dismissed a worker’s appeal of a decision barring her from filing a civil action against the owner of her workplace after she made a successful worker’s compensation claim for a workplace injury.
Hawthorne is a company that owns a building in Ottawa that is leased to Orleans Fresh Fruit Company. Orleans is closely related to Hawthorne and, while Orleans’ entire operations were housed in the building, Hawthorne also had its head office there.
The worker was an employee of Orleans. On Dec. 5, 2016, she smoked a cigarette outside in a designated smoking area. After she finished, she started walking back to the entrance when she slipped and fell, sustaining serious injuries.
The worker completed a claim for workers’ compensation benefits, which was accepted by the Ontario Workplace Safety and Insurance Board (WSIB).
The Ontario Human Rights Tribunal dismissed a worker’s discrimination complaint because the worker filed a civil claim arising out of the same facts.
Civil action against building owner
The worker later launched a civil action against Hawthorne as the owner of the property. Hawthorne’s insurer applied to the Workplace Safety and Insurance Tribunal for a declaration that Hawthorne was a Schedule 1 employer under the Workplace Safety and Insurance Act (WSIA). Under the WSIA, the employee of a Schedule 1 employer cannot sue her employer or another Schedule 1 employer in relation to injuries suffered during the course of her employment. A Schedule 1 employer must have at least one employee.
Hawthorne was not registered as a Schedule 1 employer and Hawthorne’s office manager testified that the company was a landlord. Hawthorne also owned an adjacent property with tenants unrelated to Hawthorne, and it was responsible for maintaining the buildings, lawn and parking lots. The tenants were responsible for maintaining their leased premises.
There were four people who worked for Hawthorne – the office manager, the president, the president’s wife, and a maintenance person – but only the president’s wife was on the payroll. The others were paid by Orleans.
The tribunal found that the president and his wife were both employees of Hawthorne and were covered by the WSIA as such. This made Hawthorne a Schedule 1 employer, said the tribunal. Although Orleans paid the president and supplied both he and his wife with the tools and equipment to do their jobs, the duties with the two companies overlapped and neither were an independent contractor, said the tribunal.
A discrimination complaint was not superseded by a worker’s compensation claim related to mental stress from bullying, the BC Human Rights Tribunal ruled.
In the course of employment
The tribunal also found that the worker’s injuries occurred in the course of employment. The accident happened on premises under Orleans’ control and she was on a paid break during regular work hours at a time specified by her employer. This was “activity reasonably incidental to employment,” said the tribunal.
The tribunal determined that the worker was precluded from suing Hawthorne for personal injuries sustained in the work-related accident.
The worker appealed to the Ontario Superior Court of Justice, arguing that the tribunal failed to consider that Hawthorne didn’t consider itself a Schedule 1 employer, the finding that Hawthorne had employees was erroneous, and the tribunal failed to give her the “benefit of the doubt” as required by the WSIA, which states: “If, in connection with a claim for benefits under the insurance plan, it is not practicable to decide an issue because the evidence for or against it is approximately equal in weight, the issue shall be resolved in favour of the person claiming benefits.”
The court found that it didn’t matter if Hawthorne considered itself a Schedule 1 employer, as “where an employer’s business activities are compulsorily covered in Schedule 1, it is considered to fall under schedule even if it is not registered with the board as such at the time of the accident.” In addition, Schedule 1 of the WSIA included property management companies employing maintenance help, said the court.
A firefighter exposed to a serious infection on the job could not sue his employer because it happened in the course of employment.
Building owner had employee
The court also agreed that it was reasonable to find that the president of Hawthorne and his wife were employees of the company. Although they were paid by Orleans and were free to choose their own hours and methods, they were responsible for aspects of company management, were assigned tasks, and were required to meet deadlines. Although only the president’s wife was paid by Hawthorne, an employer need only employ one worker to qualify as a Schedule 1 employer, the court said.
The court also found that the tribunal’s finding that the worker was injured in the course of employment was reasonable given that it happened within the leased premises of Orleans and she was on an employer-controlled break.
As for the “benefit of the doubt” principle, the court pointed out that it only applied to a person claiming benefits under the WSIA, not someone seeking to avoid having to claim benefits in order to file a civil action.
The court determined that the tribunal’s decision that the worker was barred from filing a civil action against Hawthorne was reasonable and dismissed the worker’s appeal. See Dean v. 3150 Hawthorne Road Ltd., 2023 ONSC 3576.
