MEMORANDUM 652/90. DATE: November 6, 1990 TYPE: S. 15 ALL WCAT STAFF. SUBJECT: DECISION NO. 652/90 Charlton v. Ducharme

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1 652/90 MEMORANDUM DATE: November 6, 1990 TYPE: S. 15 TO: ALL WCAT STAFF SUBJECT: DECISION NO. 652/90 Charlton v. Ducharme Section 15 application - In the course of employment (travelling). The defendants in a civil case applied to determine whether the right of action was taken away. The issue was whether the defendants were in the course of employment at the time of a motor vehicle accident. The defendants were employed as pipefitters by their employer to work at a plant belonging to a different company. They were proceeding from their homes to their trailer, which was their temporary residence during the week, near the work site. They planned to deliver clothing and groceries at the trailer before heading to the plant. The defendants' travel was not part of their work. They were employed as pipefitters specifically to work at that plant and no other site was involved. They were not undertaking any duty to the employer. They were travelling in their own car on their own time and they received no travel allowance. The defendants were not in the course of employment. The plaintiffs' right of action was not taken away. [9 pages] Panel: Bigras McCombie Jago Date: 05/11/90 WCAT Decisions Considered: Decision No. 44 (1986), 2 W.C.A.T.R. 8; Decision No. 123 (1986), 2 W.C.A.T.R. 66; Decision No. 215 (1987), 4 W.C.A.T.R. 105; Decision No. 372 (1987), 4 W.C.A.T.R. 154; Decision No. 420 (1986), 3 W.C.A.T.R. 168; Decision Nos. 326, 414, 455 Board Directives and Guidelines: Claims Adjudication Branch Procedures Manual, Document nos , ; Claims Services Division Manual, s.391), p.50, Directive 22 Cases Considered: Decision No. 2 (1973), 1 B.C.W.C.R. 7; Marks' Dependants v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920); Nancollas v. Insurance Officer, [19

2 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 652/90 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act, R.S.O. 1980, c.539, as amended. AND IN THE MATTER OF an action commenced in the Supreme Court of Ontario at the City of Sarnia as Action No. 251/88. B E T W E E N: GARY CHARLTON and JOANNE CHARLTON Applicants in this application and Defendants in the Supreme Court of Ontario Action. - and - GERARD DUCHARME, VICTORIA DUCHARME and JEFFREY DUCHARME and SARAH DUCHARME by their litigation guardian VICTORIA DUCHARME and GREGORY KEMMIS Respondents in this application and Plaintiffs in the Supreme Court of Ontario Action.

3 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 652/90 IN THE MATTER OF an application pursuant to section 15 of the Workers' Compensation Act. AND IN THE MATTER OF an action commenced in the Supreme Court of Ontario, at the City of Sarnia, as Action No. 251/88. B E T W E E N: GARY CHARLTON and JOANNE CHARLTON Applicants/Defendants - and - GERARD DUCHARME, VICTORIA DUCHARME and JEFFREY DUCHARME and SARAH DUCHARME by their litigation guardian VICTORIA DUCHARME and GREGORY KEMMIS Respondents/Plaintiffs WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

4 WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 652/90 This Section 15 Application was heard in London on August 30, 1990, by a Tribunal Panel consisting of: J.G. Bigras: Vice-Chairman, W.D. Jago : Member representative of employers, N. McCombie: Member representative of workers. THE SECTION 15 APPLICATION This application arises out of a civil action commenced in the Supreme Court of Ontario on March 29, 1988, as court Action No. 251/88. The Plaintiffs are: Gerard Ducharme, Victoria Ducharme, and Jeffrey Ducharme and Sarah Ducharme by their litigation guardian Victoria Ducharme, and Gregory Kemmis. The Defendants in the court action are Gary Charlton and Joanne Charlton. Neither the Applicants, the Defendants in the civil action, nor the Respondents, the Plaintiffs in the civil action, attended the hearing. The Applicants were represented by J. Beckett, barrister and solicitor, and the Respondents were represented by P. Merchant, barrister and solicitor. A. Kowalski attended, representing the Respondents' employer, E.S. Fox, an interested party. The Panel had for its consideration the Applicants' Section 15 Statement and the Respondents' Section 15 Statement. No evidence was adduced and the proceedings consisted of oral arguments by Ms. Beckett and Mr. Merchant. The decision was rendered orally at the hearing. THE ISSUE AND HOW IT ARISES This matter arises out of a motor vehicle accident which occurred on May 12, 1986, at an intersection in the town of Shelbourne, Ontario. A motor vehicle driven by Gregory Kemmis was struck from the rear by a second motor vehicle, driven by Gary Charlton and owned by his spouse Joanne Charlton. Gerard Ducharme was a passenger in the Kemmis vehicle. Gerard Ducharme and Gregory Kemmis claim that they were injured in the accident and are claiming general damages. Ducharme's spouse and their two children are also claiming damages under the Family Law Act. Kemmis was a resident of London, Ontario, and Ducharme resided in Wyoming, Ontario, on the outskirts of Sarnia. Ducharme and Kemmis, were employed as pipefitters by E.S. Fox Limited, at the Honda Plant at Alliston.

5 2 The accident occurred at 6.30 a.m. as Kemmis and Ducharme were returning from their homes in London and Wyoming, and heading for their trailer in Alliston, their temporary residence near their work site. They planned to deliver their clothing and groceries at the trailer before heading for work at the Honda plant that morning. There is no dispute that Kemmis and Ducharme were employed by E.S. Fox Limited nor that E.S. Fox Limited is a Schedule 1 employer, registered as such with the Board. Charlton's employment status has not been brought to issue. The issue in this case is whether Kemmis and Ducharme suffered an accident arising out of and in the course of their employment as set out in section 3(1) of the Act. Pursuant to section 15 of the Act, any party to an action may apply to the Tribunal for adjudication and determination of the question of a worker's right to compensation and/or as to whether the action is one the right to bring which is taken away by Part I of the Act. A finding that Ducharme and Kemmis were not in the course of their employment determines that the action arising from the accident is not caught under the Workers' Compensation Act and therefore that the right of action is not taken away by Part I of the Act. THE PANEL'S REASONS (i) The arguments In the instant case, the Applicants claim that Ducharme and Kemmis were "workers" who had a right to collect compensation benefits for the accident involved in the civil action and therefore, that their right of action is taken away by the Act. Ms. Beckett argued that the trip undertaken by Ducharme and Kemmis from their homes to their trailer to bring their clothing and food in preparation for their week's employment, was undertaken for an employment purpose. Ms. Beckett stated that it was not always clear whether persons on their way to and from work are not in the course of their employment, citing Decision No. 2 (1973), 1 B.C.W.C.R. 7 (B.C. Workers' Compensation Board), that activities of people are not neatly divisible into two categories, their employment functions and their personal lives. In such cases, it is necessary to weigh the personal features of one against the employment features to determine which is predominant. She further cited the U.K. Court of Appeal decision on Nancollas v. Insurance Officer, [1985] 1 All E.R. 833, which states that an approach should "have regard to and to weigh in the balance every factor which can be said in any way to point towards or away from a finding that the claimant was in the course of his employment". Her general argument is that, "but for" the employment purpose, Ducharme and Kemmis would not have been at the scene of the accident on May 12, 1986, and therefore, they were in the course of their employment. Ms. Beckett cited the "dual purpose test" quoted from the case of Marks' Dependants v. Gray, 251 N.Y. 90, 167 N.E. 181 (1920) in Decision No. 420 (1986), 3 W.C.A.T.R. 168, which sets out that a worker is in the course of his employment if the trip he has undertaken involved a service for the employer

6 3 as well as personal purposes. She argued that it was evident, in the present case, that Ducharme and Kemmis had undertaken the trip for work purposes alone and not for any personal reasons. The Applicants also argued that one of the factors, albeit not determinative on its own, which shows the employment connection is the fact that the workers were being paid a travel allowance to reach their work place. Ms. Beckett also argued that workers can be considered in the course of their employment when travelling away from the work place providing they are not "indulging in unreasonable personal activity" and the activity was "reasonably incidental to (their) employment" as stated in Decision No. 44 (1986), 2 W.C.A.T.R. 8. It was also the Applicants' argument that Ducharme and Kemmis should be considered workers in the course of their employment at the time of the accident because the employment factors of the situation were dominant. As stated in Decision No. 372 (1987), 4 W.C.A.T.R. 154, this places the two men within the "orbit and scope" of their employment. Ms. Beckett also argued that, although the facts are different, Ducharme's and Kemmis' situation in the instant case was not different from that of the community college employees in Decision No. 123 (1986), 2 W.C.A.T.R. 66, who were involved in an accident while on their way to a conference. In that case, the Panel had applied WCB Directive 22, of the Board Policies and Divisional Administrative Guidelines, Claims Services Division Manual (page 50), which states as follows: Where the conditions of employment require the employee to travel away from the employer's premises, the employee is considered in the course of the employment continuously except when a distinct departure on a personal errand is shown. It was the Respondents' argument that the situation in the present case clearly showed that Ducharme and Kemmis were travelling from their home to their trailer and that the trip was a means of getting to work and not a situation which can be seen as incidental to their work. Mr. Merchant argued that the two men were employed by the employer E.S. Fox to perform work at the Alliston plant and the location of their residences had no bearing on their employment. Mr. Merchant argued that the general rule that persons on their way to and from work were not covered applied in this case and that the circumstances in the cited cases were significantly different from those in the case at hand and therefore the tests applied in these cases could not be applied in the case at hand. (ii) The reasoning In the workers' compensation scheme, the general rule is that workers on their way to and from the work place are not in the course of their employment. The WCB's interpretation of "in the course of" is set out in the Claims Adjudication Branch Procedures Manual, Document # , as follows: As a general rule, an employee's work does not begin until they (sic) reach the place where they work or the orbit, scope or scene of their duty and it does not continue after they have left it.

7 4 Document # of the same manual explains further as follows: As a general rule, an employee is considered in the course of the employment when the person reaches the employer's premises or place of work, such as a construction work site, and is not in the course of employment when they (sic) leave the premises or place of work. Under certain circumstances, an employee may be considered to be in the course of the employment while the employee is away from the employer's premises, and if accident (sic) occurred under such circumstances, the employee shall receive the protection of the Act. However, as stated in the Nancollas decision, cited earlier, it is important to look at the situation as a whole and weigh all the factors in order to reach a conclusion on the issue of whether or not workers were in the course of their employment when they were involved in an accident while travelling to work. The court in that case stated that there are no set rules other than the wording of the Act, but lists a number of guidelines which could be considered. The decision comments at page 840, as follows: As to guidelines, it would be possible to point to material factors: was he being paid for what he was doing? Was it the employer's car? If not, was he paid mileage allowance? Was it of any concern to the employer that he was where he was? Had he a fixed place of work and was he going to it? Had he more than one fixed place of work and was he travelling between them? The court states that no list can be comprehensive, as factors may arise in individual cases which may not be relevant in one case and could be determinative in another. The Panel has looked at the material factors involved in the present case in order to weigh the evidence and determine whether or not Ducharme's and Kemmis' situation placed them within the orbit, scope or scene of their employment at the time of the accident of May 12, First, it is important to note that, in the Nancollas decision, Sir John Donaldson makes an important distinction in the circumstances which are significant in the determination of whether or not a worker was in the course of his employment at the time of an accident. That distinction is "whether this was a journey to work or whether the journey itself was part of his work". The judge remarked that the commissioners who had originally heard the case had erred in failing to recognize that the case they were considering was that of a person who was in the course of travelling to his employer's outstations and not an employee who "had only one regular work place, a mine or factory". Then, states Sir John Donaldson, an adjudicating body can apply the test as to whether "the journey to and from work is not a journey in the course of employment unless the claimant is fulfilling a duty to his employer in undertaking it at the time or in the manner in which he is so doing".

8 5 In the present case, it cannot be said that Ducharme and Kemmis' journey was part of their work, as they were employed as pipefitters at the Honda plant. The evidence they gave at the examination for discovery on the civil suit leaves no doubt that they were hired specifically to work at the Honda plant and no other site was involved. The Panel also finds that Ducharme and Kemmis were not undertaking any duty to the employer as they travelled from their homes in London and the outskirts of Sarnia. They were returning to Alliston, where they resided in a trailer during the week, in order to be closer to their place of employment. There was no requirement set out in their conditions of employment that they be at the site of the accident at the time of the accident, with the exception that they had to report to work later that morning. The distinction made in the cited Nancollas decision, supra, applies in that Ducharme and Kemmis, who were employed at the Honda plant in Alliston, were not fulfilling a duty to their employer at the time they undertook the trip to Alliston. They were travelling in order to be at their work place. It cannot be said that the trip constituted a service for the employer, a condition for compensability also set out in Decision No. 420, cited by Ms. Beckett. It is also significant to note that, unlike the case of the workers involved in Decision No. 123, the workers in the present case were travelling in their own car and it was of no concern to the employer that they were at the accident site at the time the accident occurred. The same difference exists between the present case and that of the flight attendant in Decision No. 44 whose employment had brought her to Amsterdam and compelled her to stay in that city until her employment took her on a return flight home. It is also important to note that the situation also differed from that of an installer involved in the case in Decision No. 455 (December 16, 1986) (Ont. W.C.A.T.), who worked at different locations and was working on a job in a different city when he was involved in an accident. In Decision No. 372 the worker was travelling in the employer's van and it was determined that, although she did not have to travel to work in that vehicle, employment was the dominant factor in her involvement in the accident on her way to work. Also in that respect, Ducharme and Kemmis were in a situation which differed from that of the workers in Decision No. 123, cited by the Appellant, where the workers were travelling during working hours, in a vehicle owned by their employer. Also, in Decision No. 215 (1987), 4 W.C.A.T.R. 105, the workers travelled a 100-mile round trip to work at a remote mining site and were on a bus chartered by the employer at the time of the accident and there was no other practical way for the workers to get to the work place. We also note that no travel allowance was paid to Ducharme and Kemmis nor were they paid for their travelling time. These two factors, although not determinative on their own, do not place the workers Ducharme and Kemmis within the scope of their employment, as stated in Decision No. 414 (September 3, 1986) (Ont. W.C.A.T.), and quoted in the cited Decision No. 326 (December 10, 1986) (Ont. W.C.A.T.). We could not accept Ms. Beckett's argument that Ducharme and Kemmis should be considered to have been in the course of their employment because they would not have been involved in the accident "but for" their employment. As stated on page 839 of the Nancollas decision, cited earlier, "it is not

9 6 sufficient that the journey is one that would not have been undertaken at all but for the employment". We are of the opinion that an affirmative answer to the "but for" test can only serve to determine that the workers were on their way to work, however, as stated earlier, as a general rule, workers are not considered in the course of their employment until they arrive at the employer's premises. We find no material evidence indicating that Ducharme and Kemmis were in the course of their employment at the time of their accident in Shelbourne on May 12, They were returning to Alliston from their homes in London and Sarnia and were to stop briefly at their trailer before going to work at Alliston. We find no employment connections other than the fact that they were travelling to work, and this is not evidence that the accident occurred "during the course of their employment". THE DECISION The application is denied. Gerard Ducharme and Gregory Kemmis were not in the course of their employment at the time of the accident of May 12, Their civil action against Gary and Joanne Charlton is not one the right to bring which is taken away by Part I of the Act. DATED at Toronto, this 5th day of November, SIGNED: J.G. Bigras, W.D. Jago, N. McCombie.