Sunday 3 June 2012

Park Your Case Elsewhere

Is an employee who falls in the parking lot of the mall in which she works entitled to Workplace Safety and Insurance Board (WSIB) benefits?  “No” says the Ontario Workplace Safety and Insurance Appeals Tribunal (WSIAT).

In a recent WSIAT decision, Kontitsis v. Cadillac Fairview Corp, 2012 ONWSIAT 651Vice Chair Nairn resolved that a KFC employee who slipped in fell in the parking lot of the mall in which the fast food restaurant was located was not "injured in the course of employment."

The facts of the case are quite common.  The injured employee, Ms. Kontitsis was employed by KFC.  One morning she was on her way to work at one of the restaurant’s mall locations.  The restaurant was contained within the mall, and aside from contributing towards some of the maintenance costs of snow removal had no control over the parking lot itself.  As Ms. Kontitsis crossed the mall parking lot she slipped and fell, injuring herself.  Ms. Kontitsis commenced an action in the Ontario Superior Court for personal injuries, and the defendant mall brought commenced an application pursuant to section 31 of the Workplace Safety and Insurance Act, 1997, (the “WSIA”) requesting an Order declaring that Ms. Kontitsis’s right of action were taken away by virtue of the insurance regime established by the WSIA.

As Vice Chair Nairn observed, the only issue for determination at the WSIAT was whether Ms. Kontitsis’ injuries arose in the course of her employment.

The facts of the case would not be surprising to those who have worked in retail locations: mall employees were expected to park as far away from the main entrance as possible and a separate entrance opened for mall employees ahead of the other mall doors through which the public could enter.  However, as is not uncommon, the parking spots in which it was expected that mall staff would park were not separately controlled and members of the public, if they so chose, were able to park in those spots.

In resolving that Ms. Kontitsis’ injuries did not arise in the course of her employment Vice Chair Nairn made reference to Board Operational Policy Manual (“OPM”) Document No. 15-03-04 entitled “In The Course Of And Arising Out Of – Employers’ Premises, Parking Lots, Road, Plazas, Malls, Boundaries” and observed as follows:

The reason why a worker must generally be on the employer’s premises in order to be considered to be in the course of employment comes down to an issue of control.  An employer must have sufficient control over the premises in order to meet their responsibility to prevent accidents.  [Emphasis added. Para. 22]

Vice Chair Nairn did not rule out the possibility that some employees injured while in their employer’s parking lot could receive WSIB benefits, but noted that on the facts of this case:

Workers injured “in parking spaces regulated and allocated by the employer” may be entitled to compensation. Having had the opportunity to review all of the evidence provided, I am not satisfied it has been established that the area where Ms. Kontitsis fell ought to be considered part of the employer’s “premises”. [Para. 26]

In the result, the WSIAT held that Ms. Kontitsis did not suffer a workplace injury and therefore she was not entitled to receive WSIB benefits; rather she was able to maintain her civil action in the Ontario Superior Court against the mall.

The case highlights the challenges in workers injury cases and in resolving when an injury does or does not arise out of the course of employment.  It is important to note that in this case the worker was not left completely without remedy.  Indeed one should note that Ms. Kontitsis had elected to commence the civil action and it was the defendant mall that had sought for the WSIAT to declare that her remedy was under the WSIB.

As always, everyone’s situation is different.  The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case.

Sean Bawden is an Ottawa, Ontario employment lawyer and wrongful dismissal lawyer.  He tweets from @SeanBawden.

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