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WSIA - 'Serious and Wilful Misconduct'

. Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal

In Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal (Div Court, 2023) the Divisional Court considered a JR by an employer in a WSIA case, here where a successful claimant employee had been injured while driving home from work under the influence of alcohol.

In these quotes the court considers the "serious and wilful conduct" disentitlement [s.17 of the Act]:

Did the Tribunal unreasonably interpret s. 17 of the Act?

[24] Section 17 of the Act provides:

Serious and wilful misconduct

17 If an injury is attributable solely to the serious and wilful misconduct of the worker, no benefits shall be provided under the insurance plan unless the injury results in the worker’s death or serious impairment.

[25] The Tribunal concluded that Mr. Vaughan’s injury was attributable solely to his serious and wilful misconduct in driving while impaired. It also found, however, that his paraplegia resulted in a serious impairment. As a result, the Tribunal concluded that s. 17 did not operate to preclude the payment of benefits to Mr. Vaughan.

[26] The Tribunal cited at length from Decision No. 397/11, 2011 ONWSIAT 949, which considered the wording and intent of s. 17. In particular, it reproduced this passage from Decision No. 397/11, at paras. 53-54, which referred in turn to an earlier decision addressing the need to consider the no-fault nature of the workers’ compensation scheme in the Act in interpreting s. 17:

We agree with the concept that a worker's misconduct, taken alone, should not have the effect of taking the worker out of the scope of his employment. In our view, to hold otherwise is inconsistent with the no-fault nature of the compensation scheme and plain meaning of section 17.

Decision No. 696/96 (1996), 40 W.C.A.T.R. 200, addressed the interplay between the definition of accident, the general entitlement provision, and the misconduct provision under a previous version of the legislation. The Panel reasoned:

If we were to find that a worker is not in the course of employment under section 4(1) [a predecessor of to WSIA section 13] due to serious and wilful misconduct, we would defeat the purpose of section 4(7) [predecessor to section 17] which specifically states that workers with serious injuries are to be compensated regardless of their actions. We conclude therefore that the Act requires compensation despite serious and wilful misconduct where the worker's injuries are serious where the worker is otherwise in the course of employment.

[27] The Tribunal agreed with and adopted this analysis, which is consistent with the plain language of s. 17.

[28] Applying this analytic framework, the Tribunal held that Mr. Vaughan’s wilful and serious misconduct caused his injury, writing at paras. 234 to 236 of the Decision:

In the Panel's view, the worker's testimony is evidence of willful misconduct on his part. He disregarded what he knew were serious and legitimate policies established by the employer to ensure the safety of the workforce. The fact that the worker pled guilty to the criminal charge of driving while impaired is also itself an admission of serious misconduct.

The Panel finds that the worker's actions in driving while impaired by alcohol consumption, while in the course of employment and with responsibility for transporting two other workers in his vehicle, was serious and wilful misconduct. It was criminal behaviour, acknowledged by the worker through his guilty plea to the charge of "driving while ability impaired" on September 15, 2015, and constitutes the type of misconduct envisioned by the phrase "serious and willful misconduct" used in section 17.

Accordingly, the first part of section 17 has been established - the worker's injury in this case is attributable solely to his serious and wilful misconduct.

[29] Given the wording of s. 17, however, the Tribunal held that, because Mr. Vaughan’s injuries gave rise to a serious impairment, he was entitled to benefits notwithstanding his misconduct. It reasoned as follows at paras. 237 to 239:

The second part of section 17 includes an exception that applies regardless of whether a worker's injury is attributable solely to serious and wilful misconduct, if the injury has resulted in "death or serious impairment".

The Panel finds that the worker's injury in this case has clearly resulted in "serious impairment". The worker sustained spinal cord injuries in the accident that resulted in paraplegia, and that is a serious impairment. Although we recognize that the worker's entitlement to benefits under the Act in relation to the September 15, 2015 accident is being challenged by the employer, we also note that the worker is in receipt of a 77% Non Economic Loss (NEL) award in recognition of a permanent "complete spinal cord (paraplegia)" impairment. His claim is being administered under the Board's Serious Injury Program, and he has been granted entitlement to a monthly Independent Living Allowance (ILA) of $1,605, effective July 1, 2020, and payable for the rest of his life.

For these reasons, the Panel finds that the exception provided by the second part of section 17 is established on the evidence, and the worker's benefits under the insurance plan are payable regardless of the fact that his injuries are solely attributable to his serious and wilful misconduct of driving the company-supplied vehicle while his ability to drive was impaired by alcohol consumption.

[30] Interpaving argued that the Tribunal’s Decision is socially and morally repugnant, because it grants benefits to a worker who chooses to commit a criminal offence by driving drunk without a seatbelt. It made this same argument before the Tribunal, as noted at para. 122 of its Decision. The premise of Interpaving’s argument is that the “serious and wilful misconduct” in s. 7 does not extend to criminal conduct.

[31] There is no basis in s. 17, or in the Act, for such a distinction. As pointed out in Decision No. 397/11, at paras. 49 to 51, a restrictive reading of s. 17 would undermine the premise of the workers’ compensation scheme and would be inconsistent with the Tribunal’s past decisions on this issue:

In our view, to simply assume that a worker has taken himself out of the course of employment through misconduct is inconsistent with the plain words of section 17. It must be borne in mind that the WSIA is a no-fault compensation scheme. Employers are entitled to immunity from civil suit regardless of fault; conversely, a worker’s benefit entitlement should not necessarily be precluded where a worker is at fault.

The Tribunal’s case law generally demonstrates that a worker’s conduct must be egregious in nature to break the employment nexus. Mere folly or negligence does not necessarily take a worker out of the course of employment. To set too low a standard in this regard would be to deprive workers of the benefits of the “historic trade-off,” which is intended to protect workers as well as employers.

This view is consistent with the mainstream of Tribunal case law, which generally reflects that injuries sustained as a result of the worker’s serious and wilful misconduct while pursuing work related activities, are injuries that arise out of and in the course of employment. For example, see Decisions Nos. 1297/04; 1782/00I; 977/89; 429/91; 256/90; 32/88; and 696/96.

[32] On this analysis, conduct that is negligent or even reckless, even if criminal, would not fall outside the ambit of s. 17. The only exception that might be made is for conduct that demonstrates malign intent or an intention to harm themselves or others: Decision No. 397/11, at paras. 58 and 59. Here, there was no evidence that, by driving drunk, Mr. Vaughan intended to harm himself or his passengers.

[33] In reviewing the parties’ submissions at the hearing, the Tribunal reproduced a passage from Decision No. 2872/16, 2018 ONWSIAT 176, at para. 53, which was relied upon by Mr. Vaughan. That case involved a truck driver who crashed his vehicle while drunk, suffered a serious impairment, and later committed suicide. The Tribunal in Decision No. 2872/16 concluded that, even though the employer prohibited drinking on the job (as Interpaving did in this case) and driving while impaired was obviously dangerous, the impact of s. 17 was to allow his widow to claim benefits. It reasoned as follows, in the cited passage:

[W]e have found that the accident was solely attributable to the serious and wilful misconduct of the worker. However, at the time of the accident he was actually performing his regular duties as a truck driver during regular work hours and at a location where he was expected to be. He was in the course of his employment. However, even if his intoxication was antithetical to the employment relationship constituting conduct that took him out of the course of employment, as noted by the Vice-Chair in Decision No. 1055/13, section 17 has the effect of deeming him to be in the course of employment if he suffered serious impairment or death.

[34] There are obvious similarities between the facts in Decision No. 2872/16 and this case. Although the Tribunal did not refer back to this passage in its s. 17 analysis, it shows that the Tribunal’s interpretation of s. 17 is consistent with its earlier decisions. The Tribunal has great expertise in workplace safety and statutory benefits and the Act contains the “toughest privative clause known to Ontario law” [Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719 (CanLII) at para 22, [leave to appeal denied 2009 CanLII 23087 (SCC)]]. As a reviewing court, it is appropriate to take this into account in assessing the reasonability of its findings and conclusions, especially when a decision, as here, adopts an analytical framework endorsed in a long line of decisions by the Tribunal.

[35] Interpaving contends that the Tribunal’s interpretation of s. 17 is incompatible with the purposes of the Act set out in s. 1, because one of its four purposes is the promotion of health and safety in the workplace. As Mr. Vaughan’s counsel points out, however, s. 17 is not inconsistent with promoting health and safety. The provision limits the right of a worker to obtain benefits if they have engaged in serious and wilful misconduct. The only exception is where a worker has sustained serious impairment or has died. Another purpose of the Act, furthermore, is “to provide compensation and other benefits to workers and to the survivors of deceased workers”.

[36] I do not believe that granting Mr. Vaughan benefits undermines the Act or, as argued by Interpaving, that it will tempt other workers to risk paraplegia or death because they (or surviving family members) may nonetheless be eligible for benefits.

[37] The Tribunal’s analysis on s. 17 is consistent with the analysis based in other decisions it has made. It is reasonable under the criteria in Vavilov and Turkiewicz. I conclude that there is no basis on which to interfere with the Tribunal’s finding that Mr. Vaughan was seriously impaired as a result of the injuries he sustained in the accident, and thus entitled to benefits even though the accident was caused by his own willful and serious misconduct.