Canadian Employment Law Today

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GST #897176350 Published biweekly 22 times a year Subscription rate: $299 per year CUSTOMER SERVICE Tel: (416) 609-3800 (Toronto) (800) 387-5164 (outside Toronto) Fax: (416) 298-5082 (Toronto) (877) 750-9041 (outside Toronto) E-mail: customersupport. legaltaxcanada@tr.com Website: www.employmentlawtoday.com Thomson Reuters Canada Ltd. One Corporate Plaza 2075 Kennedy Road, Toronto, Ontario, Canada M1T 3V4 Director, Media Solutions, Canada: Karen Lorimer Publisher/Editor in Chief: Todd Humber Editor: Jeffrey R. Smith E-mail: Jeffrey.R.Smith@thomsonreuters.com ©2017 Thomson Reuters Canada Ltd. All rights reserved. Emplo y ment Law Today Canad ad a ian www.employmentlawtoday.com How would you handle this case? Read the facts and see if the judge agrees YOU MAKE THE CALL 8 YOU MAKE THE CALL Was the injury unrelated to the worker's employment at the hospital? OR Was the injury related to the worker's employment and therefore compensable? IF YOU SAID the worker's injury was not related to her employment, you're correct. e Ontario Workplace Safety and Insur- ance Tribunal noted that injuries were only compensable if they arose out of and in the course of employment and it was Workplace Safety and Insurance Board (WSIB) policy that the injury must occur on the prem- ises of the workplace and during working hours, if the worker's workplace and hours are fi xed — as well as while the worker was performing work-related duties. e tribunal also noted the employer's premises included all means of entering the premises. As far as parking areas are concerned, public parking areas are not under the employer's control but parking spaces allocated by the employer are. e tribunal found the accident occurred while the worker was on foot on land owned and controlled by the hospital. e hospital was not the employer, it was the employer's landlord and had no control over the worker's employment or workplace. As a result, the accident did not occur on the employer's premises, said the tribunal. e tribunal also found the pathway on the grassy area was not an accepted entrance to the employer's premises. Rather, it led to a parking lot also owned by the hospital, not leased by the employer. " e hospital is not the worker's employer, by extension or otherwise; the hospital is the employer's landlord, and is no more her employer than a mall owner is the employer of a retail clerk at one of his stores, or a high rise owner is the employer of someone working in one of the offi ces in her building," the tribunal said. e tribunal also noted that the accident happened before the worker started work, and therefore did not occur during regular working hours. In addition, it was WSIB policy that workers are generally not in the course of employment when travelling to and from the workplace, except for travel on employer's business, as every commute is diff erent and everyone except telecommuters does it. e tribunal determined that the worker's accident — which occurred near the end of her commute but before she reached the employer's premises — was not "reasonably incidental to employment," not in the course of her employment, and did not entitle the worker to workers' compensation benefi ts. e complaint was dismissed. For more information see: • Decision No. 2697/15, 2015 CarswellOnt 20247 (Ont. Workplace Safety & Ins. Ap- peals Trib.). Hospital worker catches bad break THIS INSTALMENT of You Make the Call features a worker who injured herself just before she arrived at work one morning. e worker was employed with a company who leased four fl oors inside a hospital. It also leased a parking area on one side of the hospital and had various means of access to each of its four fl oors from the hospital's main entrance. In addition to the parking area, the employer provided information to employees about other privately-owned parking lots nearby when spaces weren't available at its own parking lot. On June 27, 2011, the worker travelled to the hospital before the start of her shift. She didn't park in the employer's parking area beside the hospital, instead parking in a church parking lot nearby that had available spots. e worker walked from the church parking lot to the hospital and took a shortcut over a grassy area owned and controlled by the hospital. ere was a path over the grassy area the led to a parking lot beside the hospital but not the one leased by the employer. As the worker crossed the grassy area, she slipped and fell, fracturing her left tibia and fi bula. e injury left her unable to work until her leg healed and she was able to walk again. e worker fi led a claim for worker's compensation benefi ts, claiming the injury happened in the course of her employment, as she was on the way to work and about to start her shift shortly. She also said it happened on land adjacent to and owned by the hospital, which should be considered her employer by extension as she worked in the hospital. Employer leased space inside hospital; worker parked nearby Shortcut wasn't accepted route to the employer's location, nor on its premises

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