Canadian Employment Law Today

©2021 Key Media Canada (HR) Ltd., a subsidiary of Key Media KEY MEDIA and the KEY MEDIA logo are trademarks of Key Media IP Limited, and used under licence by Key Media Canada (HR) Ltd. CANADIAN EMPLOYMENT LAW TODAY is a trademark of Key Media Canada (HR) Ltd. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior written permission of the publisher. The publisher is not engaged in rendering legal, accounting or other professional advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The analysis contained herein represents the opinion of the authors and should in no way be construed as being either official or unofficial policy of any governmental body. GST/HST#: 79990 3547 RC-0001 How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE info@keymedia.com www.employmentlawtoday.com President: Tim Duce Editor: Jeffrey R. Smith Email: jeffrey.smith@keymedia.com Production Editor: Patricia Cancilla Business Development Manager: Fred Crossley Email: fred.crossley@keymedia.com Phone: (416) 644-8740 x 236 NAUK Subscriptions Co-ordinator: Donnabel Reyes Email: donnabel.reyes@keymedia.com Phone: (647) 374-4536 ext. 243 THIS INSTALMENT of You Make the Call fea- tures an employee who injured herself and sued the owner of her workplace, which was a different company from her official employer. The worker was employed with a num - bered company, 1480364 Ontario Inc., and worked in a Mississauga, Ont. poultry pro- cessing plant owned and operated by Sar- gent Farms Limited, a poultry producer. In addition to having employees of both the numbered company and Sargent Farms, the plant was also occupied by workers from Blue Chip Restoration Limited, a janitorial services company, which cleaned and maintained the building. The numbered company paid the worker's wages and her workers' compensation pre - miums, and it also made all the deductions from her pay. However, Sargent Farms trained all employees that worked in its plant, deter- mined when they could take time off, made decisions related to discipline and termina- tion and reimbursed the numbered company for the wages of the numbered company's em- ployees — which were based on calculations made by Sargent Farms from time cards. Sargent Farms also owned the parking lot that workers at the plant used and Blue Chip maintained it as part of its services. On Feb. 3, 2014, the worker got out of her car in the lot and was walking toward the building en - trance when she fell and injured herself. The worker filed a civil suit for damages stemming from the accident against both Sargent Farms and Blue Chip as the owner and maintainer of the parking lot. Sargent Farms challenged her right to commence such an action, as her injury had taken place in the course of employment and the Ontario Workplace Safety and Insurance Act, 1997 (WSIA) bars employees from suing employ - ers for such an injury. The ban on such legal action is in exchange for entitlement to the no-fault workers' compensation scheme. Sargent Farms claimed that it controlled the worker's employment and was, therefore, her employer. The worker argued that her employer was the numbered company, which paid her workers' compensation premiums. This didn't prevent her from suing the other two companies, she claimed. YOU MAKE THE CALL Was the worker able to commence a civil action against Sargent Farms? OR Was the worker unable to sue Sargent Farms for her injury? IF YOU SAID the worker could not sue Sar- gent Farms for her injury, you're correct. The Ontario Workplace Safety and Appeals Tribu- nal found that, while the numbered company paid the worker's wages and workers' com- pensation premiums, Sargent Farms made hiring and firing decisions, including those employed by the numbered company. It also controlled the worker's employment through training and decisions about vacations and discipline. "I conclude that, at the time of the accident, although the numbered company was the [worker's] named employer for the purposes of payroll, as well as a few other related func - tions, [Sargent Farms] was in the position of being the [worker's] employer, in substance," said the tribunal. Since the worker was in the course of her employment when the accident occurred, the WSIA barred her from commencing a civil action against her employer — which, in the circumstances, was Sargent Farms, the tribu - nal said. The worker appealed to the Ontario Su- perior Court of Justice on the basis that the tribunal's decision was unreasonable be- cause there was a lack of evidence about the arrangement between the numbered com- pany and Sargent Farms. However, the court determined that the tribunal analyzed the relationship between the companies and rea- sonably concluded that Sargent Farms was, in substance, the worker's employer, barring the worker from launching a civil action related to the workplace accident. For more information, see: • Chen v. Workplace Safety and Insurance Appeals Tribunal, 2021 ONSC 1149 (Ont. S.C.J.). Employer musical chairs and workers' compensation The worker fell in the parking lot owned by one company and maintained by another. The facility's owner controlled the worker's employment.

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