WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 636/92

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1 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 636/92 IN THE MATTER OF an application pursuant to section 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11. AND IN THE MATTER OF an action commenced in the Ontario Court (General Division) at the City of Toronto as Action /90. E T W E E N: GARRY ROBBINS Applicant in this application and Defendant in the Ontario Court (General Division) of Ontario Action. - and - FELICE MINNITTI Respondent in this application and Plaintiff in the Ontario Court (General Division) of Ontario Action. WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 636/92

2 IN THE MATTER OF an application pursuant to section 17 of the Worke Compensation Act. AND IN THE MATTER OF an action commenced in the Ontario Court (Gene Division), at the City of Toronto, as Action No /90. B E T W E E N: GARRY ROBBINS Applicant/Defendant - and - FELICE MINNITTI Respondent/Plaintiff WORKERS' COMPENSATION ACT SECTION 17 APPLICATION

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 636/92 This Section 17 Application was heard on September 14, 1992, by a Tribunal Panel consisting of: J. Sandomirsky: Vice-Chair, K.W. Preston : Member representative of employers, S. Shartal : Member representative of workers. THE SECTION 17 APPLICATION This Section 17 Application arises out of a lawsuit filed at Toronto in the Ontario Court (General Division) as Action No /90. The Applicant, Garry Robbins, is the Defendant in this action. He seeks a declaration pursuant to section 17 of the Workers' Compensation Act (the "Act") that the right of action of the Plaintiff, Felice Minnitti, the Respondent in this application, is taken away by the Act. The Applicant/Defendant is represented by R.A. Besunder from the law firm Paroian, Raphael, Courey, Cohen & Houston. The Respondent/Defendant is represented by M. Chykaluik from the law firm Ecclestone, Chykaluik, Hamer, Poisson & Neuwald. THE EVIDENCE The Panel marked as exhibits the Applicant and Respondent Section 17 Statements and a copy of Mr. Robbins' employment file. We heard oral evidence from Mr. Minnitti and B. Sanderson the field service manager for Office Equipment Limited ("O.E."), Mr. Minnitti's employer at the time of the accident. We also heard submissions from Mr. Besunder and Mr. Chykaluik. THE NATURE OF THE CASE The Applicant and Respondent were involved in a motor vehicle accident on February 10, At the time of the accident both Mr. Robbins and Mr. Minnitti were employed by Schedule 1 employers. The issue before the Panel is whether they were in the course of their employment at the time of the accident. THE PANELS REASONS (i) The evidence for the Applicant Mr. Robbins was not present at the hearing. Mr. Besunder advised the Panel that Mr. Robbins had no personal interest in the matter as he was not injured and the insurer was handling the case.

4 2 Mr. Besunder reviewed Mr. Robbins' evidence from the Examination for Discovery which took place on June 5, According to that evidence, Mr. Robbins was employed by Dubois Chemical as a sales representative in The documents on his employment file establish that, although he worked as a commissioned salesman, he was an employee of Dubois. He sold soaps, detergent and cleaning supplies to restaurants. His working hours were between eight and five and he did some service calls during the evenings. He was not required to call in to the office at the end of the day. He testified that on the day of the accident, he was prospecting for new accounts. In other words, he was driving around looking for restaurants to drop into to try to sell his products. He did not recall if he went home after the accident or kept looking for restaurants to visit. Mr. Robbins testified that he kept a list of the restaurants he solicited. This list was turned into the company every week. Mr. Robbins was driving his own car. He was responsible for the payment of all expenses on that car. The employer did not reimburse him for any of the costs of operating the vehicle. (ii) The evidence for the Respondent Mr. Minnitti was employed as a field service technician for O.E. His job involved servicing copier machines. Mr. Minnitti described his working day to the Panel. He left his home in Oshawa before 8:00 a.m. and phoned the dispatcher at O.E. when he reached Toronto to get his first service call of the day. After he finished each job he filled out an invoice, phoned the dispatcher and received his next job assignment. His hours of work were roughly 8:30 to 5:00 Monday to Thursday and 8:30 to 4:00 on Friday. According to the evidence of Mr. Minnitti and Mr. Sanderson, the hours varied somewhat depending on the length of time it took to complete the last call. If the call went beyond the end of the working day, the service technicians started later or left earlier the next day. Similarly, if there was a half hour or so left in the work day after a call, and there was not enough time to take another call, the service technicians were was free to go home. Mr. Sanderson testified that, with this type of flexibility, it generally worked out that the service technicians put in their full work week without overtime. O.E. did not pay service technicians for overtime work. The accident occurred on a Friday at approximately 3:30 p.m. Mr. Minnitti had just completed a service call on Eglinton Avenue West and, as it was close to the end of the working day, he proceeded home to Oshawa. He did not call the dispatcher after finishing this service call as he assumed it was the last call of the day. At the time of the accident he was traveling north on Avenue Road to reach Highway 401. Mr. Minnitti was driving a car owned by O.E. He testified that O.E. paid for gas and maintenance of the car. He kept all the tools necessary to do the service work in the car. He also used the car for personal use in the evenings and on week-ends.

5 3 Mr. Sanderson reviewed the computer printout showing Mr. Minnitti's contacts with the dispatcher on February 10 and 13, The printout shows that Mr. Minnitti called the dispatcher on February 10 at 2:12, arrived at his assignment on Eglinton Avenue at 2:45 and completed the assignment at 3:30. The invoice for the service call confirms confirms that the job was completed at 3:30. (iii) The Panel's findings Section 10(9) of the Act bars all lawsuits between two workers of Schedule 1 employers provided that they were in the course of their employment when the accident occurred. Therefore, the issue before the Panel is whether Mr. Robbins and Mr. Minnitti were in the course of their employment at the time of the accident on February 10, Counsel for the parties provided us with a number of Tribunal decisions on the meaning of the phrase "in the course of employment" and its application in similar fact situations. In reviewing these cases, we note that the Tribunal has generally adopted the prevailing rule that travel to and from a fixed work place is not considered to be within the course of employment. However, in cases where a worker does not have a fixed place of employment, and his or her work requires traveling from place to place, different considerations apply. In these cases the Panel must consider whether the worker was involved in an activity reasonably incidental to his employment duties. The evidence in this case is that Mr. Minnitti had completed his work activities at the time of the accident and was on his way home. He testified that, as the job on Eglinton Avenue was completed at 3:30, he assumed that was his last assignment for the day. Mr. Sanderson confirmed that Mr. Minnitti was not required to call the dispatcher at 3:30 on a Friday afternoon. Although the official quitting time was 4:00, a service technician was allowed to go home if he finished a call early. As service technicians were not paid overtime, the extra time compensated for other days when a service call kept the technician beyond the official quitting time. Mr. Minnitti was supplied with a company car. All gas and maintenance was paid by the O.E. However, he also used the car for his personal activities. The mere fact that a worker was using a company vehicle at the time of an accident does not in and of itself put him in the course of his employment. There must be something about the nature of the activity for which the car is used to establish the employment nexus (see Decision No. 382/92, June 12, 1992). In this case the Panel finds that at the time of the accident, Mr. Minnitti was not in the course of his employment. We conclude that the predominate nature of Mr. Minnitti's activity was personal. He was driving home after having completed his days work. Section 10(9) bars a lawsuit where both workers were in the course of their employment at the time of the accident. Therefore, having found that Mr. Minnitti was not in the course of his employment at the time of the accident, there is no need to determine whether Mr. Robbins was in the course of his employment.

6 4 THE DECISION The application is denied. DATED at Toronto, this 8th day of April, SIGNED: J. Sandomirsky, K.W. Preston, S. Shartal.

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