FD: FD: DT:D DN: 936/90R STY:Fogarasi v. Riordan PANEL: Onen; Crocker; Barbeau DDATE: ACT: KEYW: Reconsideration (consideration of evidence);

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1 FD: FD: DT:D DN: 936/90R STY:Fogarasi v. Riordan PANEL: Onen; Crocker; Barbeau DDATE: ACT: KEYW: Reconsideration (consideration of evidence); In the course of employment (proceeding to and from work); Right to sue. SUM: The defendants in a civil case applied to reconsider Decision No. 936/90 in which the hearing panel found that the plaintiff was not in the course of employment at the time of a motor vehicle accident and that, accordingly, her right of action was not taken away. The plaintiff was a saleswoman who required her car for work. She was not paid for using her car. Rather, she was expected to claim expenses as a tax deduction. The accident occurred as she was proceeding to the employer's premises for a meeting. She was expected to go to the employer's premises every morning. The hearing panel considered the evidence, court cases, Tribunal decisions and policy criteria in reaching its decision that, while proceeding to work, she was comparable to a worker on the way to the workplace rather than to a worker under a direct requirement to bring her car to work. There was no clear mistake or omission that would cause the Panel to reconsider. The request to reconsider was denied. [8 pages] PDCON: TYPE: DIST: DECON: Decision No. 72R (1986), 18 W.C.A.T.R. 1 refd to; Decision No. 72R2 (1986), 18 W.C.A.T.R. 26 refd to; Decision No. 95R (1989), 11 W.C.A.T.R. 1 refd to IDATE: HDATE: TCO: KEYPER: XREF: Decision No. 936/90 COMMENTS: TEXT:

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 936/90R 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 Supreme Court of Ontario at the City of Toronto as Action 238/81. B E T W E E N: GEORGE FOGARASI, JOHN TEW and DUFFERIN DATSUN LIMITED Applicants in this application and Defendants in the Supreme Court of Ontario Action. - and - BEVERLEY ANN RIORDAN Respondent in this application and Plaintiff in the Supreme Court of Ontario Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 936/90R 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 Supreme Court of Ontario, at the City of Toronto, as Action No. 238/81. B E T W E E N: GEORGE FOGARASI, JOHN TEW and DUFFERIN DATSUN LIMITED Applicants/Defendants - and - BEVERLEY ANN RIORDAN Respondent/Plaintiff WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 936/90R This application for reconsideration was considered on August 27, 1992, by a Tribunal Panel consisting of: Z. Onen : Vice-Chair, P.A. Barbeau: Member representative of employers, J.A. Crocker: Member representative of workers. THE APPLICATION This is an application for reconsideration of Decision No. 936/90, dated January 30, 1991, by a differently constituted Panel of this Tribunal. That Panel considered an application under section 15 of the Act by George Fogarasi, John Tew and Dufferin Datsun Limited for a determination that the right of Beverley Ann Riordan to bring a legal action is taken away under Part I of the Act. The Panel decided that Ms. Riordan's right of action was not taken away and the application was dismissed. This application for reconsideration was made by Paul Lee, solicitor for the Applicants, on July 23, THE EVIDENCE In considering this application, we had before us Decision No. 936/90, submissions contained in the application for reconsideration by Mr. Lee, and the statements filed by the parties for the section 15 application. THE NATURE OF THE CASE Mr. Lee submits on behalf of the applicant that Decision No. 936/90 should be reconsidered because, in making its decision, the Panel overlooked an important piece of evidence; and because it committed a jurisdictional error in that its finding of fact was patently unreasonable in view of the evidence before it. THE PANEL'S REASONS The Workers' Compensation Act of Ontario provides that the decisions of the Appeals Tribunal shall be final. Sections 92 and 70 of the Act allow the Tribunal to reconsider its decisions "at any time if it considers it advisable to do so". There is a general public interest in the finality of the decisions of the Appeals Tribunal. Consequently, the Tribunal has developed a high standard of review when it considers whether it is advisable to reconsider a decision.

5 2 In reviewing an application for reconsideration, the Panel considers whether the defect in the administrative process, or in the content of the decision, would, if corrected, result in a different decision. This threshold test has been discussed in some detail in Decisions No. 72R (November 14, 1986), 72R2 (December 10, 1986), and 95R (June 29, 1989). In this case, an issue before the Decision No. 936/90 Panel was whether Beverley Ann Riordan was in the course of her employment at the time of the accident in question. The evidence generally was that the accident occurred while Ms. Riordan was driving her own car to her employer's office. Mr. Lee characterized the evidence before the Panel in his application for reconsideration: At the hearing, the Respondent herein [Riordan] testified that she spent very little of her work day in the office. As a commissioned saleswoman, she was responsible for an area in Rexdale and Weston.... While she was within the boundaries of her sales area performing her calls, she would drive from place to place. She owned the car that she used. Her employer did not provide her with the car. She was not reimbursed by Munroe for any of the expenses of that vehicle and the expenses were not built into the commission. Rather, employees were expected to obtain a benefit from tax write-offs since the car expenses would be business related expenses. She testified that it would have been practically impossible to perform her job without a vehicle and that that was something her employer would have understood. She also agreed that because the employer did not provide her with a car, it was understood that as part of the employment, she would have to provide her own car. According to Mr. Lee, the Panel omitted to consider the "uncontroverted evidence" of Ms. Riordan that she required her automobile to do her job, that her employer did not provide an automobile, that the work performed by Ms. Riordan required the use of an automobile, and that Ms. Riordan was required to use her own automobile by the employer in the course of her employment, presumably for the employer's benefit. He relies on the following paragraph from the decision in making the submission: This is not a case like many of the cases cited to us in which the worker was required to bring an automobile to work by their employer.... The employer did not require the worker to drive her automobile to the morning meeting and the fact that the worker required an automobile to do her sales work is not sufficient to convince the Panel that the normative rule that a worker is not in the course of their employment while travelling to and from their place of work should be set aside.

6 3 We have considered these submissions, together with the materials originally filed in this application, the transcript of the oral hearing before the Decision No. 936/90 Panel, and the decision itself. We have also considered a series of Tribunal decisions to which we were referred by Mr. Lee in his application. These decisions address similar issues concerning the employment status of workers injured while travelling. Having considered these submissions and evidence, we are satisfied that there is no reasonable basis for questioning the decision reached by the Decision No. 936/90 Panel. First, we note that in explaining its reasons, the Decision No. 936/90 Panel explored the applicable legal and policy criteria in detail. The decision refers to and discusses a number of well-known authorities, including decisions of courts in various jurisdictions. It is clear to us that the Panel addressed the general question of the employment status of workers injured while driving to work. Having reviewed the authorities, the Panel made the following conclusion on its analysis: It is clear that a travelling selesperson who has no fixed place in which their work is done, is generally in the course of employment from the time they leave home en route to visit a customer until they return. When however, the salesperson is required to report for work at the employer's premises at the commencement of each working day, the situation is somewhat different. Therefore, the Panel noted a distinction between types of employment arrangements which may affect the employment status of salespeople who are injured while travelling. Secondly, the Decision No. 936/90 Panel set out the evidence of Ms. Riordan characterizing it essentially in the same way as Mr. Lee in his application for reconsideration: She [Ms. Riordan] did not receive any remuneration from her employer for the operation of her motor vehicle, although it was clear that she required a motor vehicle to sell product. Therefore, it is clear that the Panel noted the the evidence concerning Ms. Riordan's requirement for the car and the employment arrangements concerning it. It is Mr. Lee's position in this application that: Since the employer required her to use her own vehicle later in the day and required her to be at the office at 8:00 a.m. and since the employer permitted her, perhaps for the employer's own benefit, to drive directly home from her last sales call, it is obvious that the employer indirectly required the plaintiff to drive the vehicle to the 8:00 a.m. meeting at the office.

7 4 Indeed, in our submission it is patently unreasonable to hold that "this is not a case, like many of the cases cited to us in which the worker was required to bring an automobile to work by their employer". If the sales meeting was mandatory and required all of the employees, unless they could show that they had another sales call, this would be included as part of the employment. The vehicle to be supplied had to be the Respondent's own and the Respondent was allowed to go directly home with it after work and not after her last sales call and not check into work. A review of the reasons provided in Decision No. 936/90 indicates to us that the Panel accepted Ms. Riordan required an automobile to perform her work. However, the Panel also accepted, on the evidence, that the employer did not expressly require Ms. Riordan to drive her automobile to the morning sales meeting. In considering the reasons, it is apparent to us that the Panel found on the facts that Ms. Riordan's employment status at the time of the accident was more comparable to a worker on the way to a workplace, rather than a worker who is under a direct requirement to bring a vehicle to work every day, or to use a vehicle to perform tasks away from the office. This is apparent from the following passage in the decision which Mr. Lee quoted, and from which he regrettably left out a critical portion which we have emphasized: This is not a case, like many of the cases cited to us in which the worker was required to bring an automobile to work by their employer. Rather, this is a case where the worker was required to report to work each morning at 8:00 a.m. prior to commencing sales work in her designated area. (emphasis added) While the language used in the decision is somewhat confusing when the reasons are read within context, they indicate the Panel accepted that Ms. Riordan needed her car to perform her job. However, after considering all of the factors related to the arrangements concerning the car, including the fact that the employer did not pay the expenses for operating the vehicle, did not remunerate Ms. Riordan for the period when she drove to her office, and did not expressly require her to bring the vehicle to the office, the Panel found that while driving to the office, Ms. Riordan was within the category of workers who are on the way to work rather than those already at work. This is clear from the remainder of the conclusions provided by the Panel: It is clear that a travelling salesperson who has no fixed place in which their work is done, is generally in the course of employment from the time they leave home en route to visit a customer until they return. When however, the salesperson is required to report for work at the employer's premises at the commencement of each working day, the situation is somewhat different.

8 5 In this case the Panel is satisfied that Ms. Riordan at the time of the happening of the accident on January 25, 1979, was not in the course of her employment. The normative rule is that workers, while travelling from their homes to work and back are not in the course of their employment. In this case, the Panel is satisfied that the worker was required, except in certain circumstances and with the consent of the employer, to be at work by 8:00 a.m. The worker was travelling from her home to her place of work when the accident happened. Accordingly, there are no circumstances in this case which would indicate that a different result should be reached.... Our review of the decisions to which we were referred by Mr. Lee indicates that in cases where it was found that workers were in the course of employment when injured on the way to the workplace, there was usually an additional component linking them to their employment, including remuneration during the period they travelled to work, payment for the expenses for operation of the vehicle, use of a vehicle supplied by the employer, or other such factors. The reasons of the Decision No. 936/90 Panel were perhaps not as clearly stated as they might have been. Nevertheless, based on a review of all of the reasons provided by that Panel, we can find no clear mistake or omission which would cause us to reconsider the decision. To do so would be to allow the applicant a second opportunity to present the same evidence and the same argument for no reason other than that it does not accept the finding of the original Panel on the facts and the evidence. THE DECISION The application for reconsideration is denied. DATED at Toronto, this 16th day of September, SIGNED: Z. Onen, P.A. Barbeau, J.A. Crocker.