Accident happened on public road but vehicle was provided by employer
Seven New Brunswick workers who were in an automobile accident on the way to a remote worksite are entitled to compensation for their injuries, the New Brunswick Court of Appeal has ruled.
Dennis Duguay, Florent McGraw, Paul Emile Robichaud, Aldério Rousselle, Billy Joe Rousselle, Jacques Roussel and Marc Rousselle worked for VSL Canada, a manufacturer and installer of concrete reinforcing steel based in Saint John, N.B. The seven employees were assigned to a wind farm project in a remote part of northern New Brunswick that required travel over a provincial highway used mainly by resource extraction companies. VSL provided a rented all-wheel drive vehicle to transport the workers and their tools, along with a driver. VSL didn’t require its workers to travel to the job site in the vehicle, but they were expected to for logistics purposes due to the distance and poor quality of some of the roads to get there.
However, the weather was snowy and the road was slippery and the vehicle slid off the road. All seven men were injured in the accident and filed workers’ compensation claims. VSL indicated the accident didn’t occur at the job site but rather on the way on a public highway.
The New Brunswick Workplace Health, Safety and Compensation Commission (WHSCC) accept the claims based on its policy that an injury must happen at a time consistent with the worker’s normal working hours, it arose out of the employment and was in the course of employment. VSL appealed the decision, arguing that it happened on a public road, their job did not expressly include travelling to job sites and the vehicle was not under its control at the time of the accident.
The WHSCC appeals tribunal dismissed the appeal, finding the workers were exposed to risk on the slippery road because of their employment, the time it occurred was within their normal working hours and the travelling on the road to the work site was in the course of employment. VSL appealed once again, this time to the province’s Court of Appeal.
The court noted that New Brunswick’s Workers’ Compensation Act required injuries to be both “out of” and “in the course of” employment, which were not the same. However, if an accident arose out of the employment, it is assumed to have occurred in the course of employment without evidence to the contrary, said the court.
VSL argued the employees’ work didn’t begin until they arrived at the job site, they were not required to travel in the vehicle and it occurred on a public highway, which all constituted “evidence to the contrary” that the accident occurred in the course of employment. However, the court found “travel to the job site may not have formed part of the claimants’ formal contractual duties, but it indisputably was an activity reasonably incidental to their performance.” The court pointed to previous court decisions that established a worker “may well be in the course of his or her employment while on the way to work.” The WHSCC policy also specified workers are considered to be in the course of employment while being transported to and from a job site in a vehicle under the “care and control” of the employer. Since the vehicle was rented and insured by VSL and the driver was designated by VSL, it qualified as under its care and control, said the court.
