WORKERS' COMPENSATION APPEALS TRIBUNAL DECISION NO. 106

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1 DECISION NO. 106 IN THE MATTER OF an action commenced in the Supreme Court of Ontario, as Action No ; AND IN THE MATTER OF an application pursuant to Section 15 of the Workers' Compensation Act, R.S.O. 1980, c. 539, as amended. B E T W E E N: NETWORK TRANSPORT (ONTARIO) LIMITED Applicant in this application and Defendant in the Supreme Court action. - and - LUIGI DIBERNARDO Respondent in this application and Plaintiff in the Supreme Court action

2 DECISION NO. 106 in IN THE MATTER OF an action pending Supreme Court of Ontario; AND IN THE MATTER OF an application pursuant to Section 15 of the Workers' Compensation Act. B E T W E E N: LIMITED NETWORK TRANSPORT (ONTARIO) Applicants - and - LUIGI DIBERNARDO Respondents WORKERS' COMPENSATION ACT SECTION 15 APPLICATION

3 SECTION 15 APPLICATION This section 15 application arises out of a lawsuit between the plaintiff, Luigi Dibernardo and the defendant Network Transport (Ontario) Limited. Mr. Philip Dooley, the driver of the vehicle owned by Network Transport Ltd. and co-defendant in the action, did not participate in these proceedings although properly notified of the application. The application was heard on March 6, 1986, by a Panel of the Appeals Tribunal consisting of N. Catton, Panel Chairman, D. Jago, a member of the Tribunal representative of employers, and F. Lankin, a member of the Tribunal representative of workers. John W. Scott, solicitor for the applicant submitted a statement of fact and law prior to the hearing. John Pechelli, solicitor for the respondent, notified Z. Onen, of the Tribunal Counsel Office prior to the hearing that the respondent was in agreement with the statement of fact filed by the applicant's solicitor. For this reason the respondent did not attend the hearing. The applicant was represented by C. Lyon. The Panel considered the agreed statement of facts in addition to the employer's statement of payroll for Luigi Dibernardo Construction Limited, obtained from the Workers' Compensation file and presented by the Tribunal Counsel Office. The Panel also had before it the notice of accident and cargo loss provided to the Panel by the applicant's solicitor. Submissions were made by C. Lyon and Z. Onen of the Tribunal Counsel Office. THE ISSUE AND HOW IT ARISES Mr. Dibernardo and Mr. Philip Dooley, the driver for Network Transport Limited, were involved in a motor vehicle accident on March 25, Mr. Dibernardo commenced an action for damages resulting from that motor vehicle accident against Mr. Dooley and Network Transport Ltd. the owner of the truck. The applicant, Network Transport Ltd., is requesting a determination, pursuant to section 15 of the Workers' Compensation Act, that the plaintiff's right to sue has been taken away by virtue of section 8(9) of the pre-april 1985 Act which states: "No employer in Schedule 1 and no worker of an employer in Schedule 1 or dependant of such worker has a right of action for damages against any employer in Schedule 1 or any worker of such employer, for an injury for which benefits are payable under this Act, where the workers of both employers were in the course of their employment at the time of the happening of the injury, but, in any case where the Board is satisfied that the accident giving rise to the injury was caused by the negligence of some other employer or employers in Schedule 1 or their workers, the Board may direct that the benefits awarded in any such case or a proportion of them shall be charged against the class or group to which such other employer or employers belong and to the accident cost of such individual employer or employers."

4 The Appeals Tribunal has exclusive jurisdiction to make this determination under section 15 of the Workers' Compensation Act which states: "Any party to an action may apply to the Appeals Tribunal for adjudication and determination of the question of the plaintiff's right to compensation under this Part, or as to whether the action is one the right to bring which is taken away by this Part, or whether the action is one in which the right to recover damages, contribution, or indemnity is limited by this Part, and such adjudication and determination is final and conclusive." THE PANEL'S REASONING The following facts are agreed to by both the applicant and the respondent: 1. Mr. Luigi Dibernardo was in the course of his employment at the time of the accident. 2. Mr. Dibernardo was a Schedule 1 employer and had personal coverage from the Workers' Compensation Board at the time of the accident. 3. Mr. Philip Dooley was an employee of Network Transport Limited at the time of the accident and was in the course of his employment at the time of the accident. 4. Network Transport Limited is a Schedule 1 employer under the Workers' Compensation Act. In addition to this agreed statement of fact the Panel had before it the statement of cargo loss which verified Mr. Dooley's employment activities at the time of the accident. It also had before it evidence that Mr. Dibernardo had personal coverage under the Act at the time of accident. It is important to note that this Tribunal will not be bound by an agreed statement of fact and law in deciding all cases. This Tribunal has a responsibility that goes beyond the interest of the applicant and respondent. The majority of section 15 applications involve the question of whether or not the party was in the course of employment at the time of the accident. Therefore, decisions in section 15 applications require the Panel to assess what is meant by "in the course of employment". The Tribunal has an obligation to decide what those words mean under the Act and to apply that meaning to the facts before it. In most cases, the applicant and the respondent will have different interests. However, in some cases it may be in both their interests to decide that the activity leading to the accident is work related. Such an agreement may settle a lawsuit and impose less cost on the employer because the cost of Workers' Compensation benefits will be borne by the Accident Fund. The interests of the Accident Fund would not be adequately protected if there were no independent investigation of the facts.

5 The agreed statement of facts in this case, supplemented by the additional information, satisfies the Panel that Mr. Dibernardo and Mr. Dooley were in the course of employment at the time of the accident. Therefore Mr. Dibernardo's right of action against Mr. Dooley and Network Transport Ltd. has been taken away by section 8(9) of the Act. DECISION This application is allowed. DATED at Toronto this 17th day of July, SIGNED: N. Catton, F. Lankin, D. Jago.

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