Safety behind the wheel: Ontario court clarifies employer liability in worker-related traffic injury

Driving in extreme winter conditions requires extra care from employees. Photo: Adobe Stock

Editor’s Note: This article is part of OHS Canada’s special focus on Extreme Weather PPE – running Oct. 30 to Nov. 2. See full coverage here. 

Driving in the winter brings additional hazards, and it also raises a question: If one of your workers injures someone else while behind the wheel and on the clock, what happens?

A ruling released earlier this year by the Ontario Superior Court of Justice provides some insight, at least in specific circumstances. Back in 2014, Shannon Hogan — an employee of Heritage Lawn Care — struck a pedestrian with a company-owned truck in Ottawa.

The victim, Jacqueline Delanty, alleged she sustained permanent and serious injuries because of the accident. It happened when she was standing near a van that was struck by a pickup truck being driven by Hogan on a residential street.

Delanty, along with her mother Katherine Reilly, sued both Heritage Lawn Care and Hogan. Interestingly, Reilly sought damages under the Family Law Act, a derivative claim dependent on her daughter’s case.

The defendants alleged that Delanty was a Schedule I worker under the province’s Workplace Safety and Insurance Act (WSIA) and was in the course of her employment at the time of the accident. (There was no information in the ruling about the nature of her employment or what she was doing at the time of the accident — but an earlier WSIAT ruling noted that it had provided notice to AMJ Campbell Vans, which it described as “an interested third party.”)

They also noted that Hogan was also a Schedule I employee and in the course of her employment with Heritage when she was behind the wheel.

As a result, Delanty had no right to sue, they argued. That’s because, under the WSIA, Ontario workers lose the right to sue their employer for a work-related injury in exchange for workers’ compensation benefits without having to prove their employer was at fault for the injury.

The defendants moved for dismissal, pointing to a March 2020 ruling by the Workplace Safety and Insurance Appeals Tribunal (WSIAT). WSIAT had found that both Delanty and Hogan were Schedule I workers under Ontario’s Workplace Safety and Insurance Act, 1997 (WSIA), effectively nullifying Delanty’s right to sue.

The WSIA’s statutory framework also extends this limitation to the worker’s family members under specific conditions.

In dismissing the case, the judge noted that neither plaintiff had “commenced an application for judicial review of the WSIAT decision.” Furthermore, the judge stated that the plaintiffs had not been proactive in moving their case forward, adding that they would have faced “dismissal for delay” even if their rights had not been nullified by the WSIAT’s previous ruling.

The plaintiffs had contended that they did not receive a “fair trial” at WSIAT, and their matter had been under reconsideration since May 2021. However, according to the court, there was no evidence to suggest that either plaintiff had taken appropriate legal steps to challenge the tribunal’s decision, despite the lapse in time well beyond WSIAT’s general six-month guideline for reconsideration requests.

The court then turned its attention to Reilly’s claim under the Family Law Act. She claimed general damages for loss of care, guidance and companionship, and value of services performed pursuant to the provisions of the act — including special damages for out-of-pocket expenses and other economic loss.

But because the WSIAT determined the rights of Delanty were taken away by the WSIA, Reilly was not entitled to maintain her claim under the Family Law Act. The court also awarded costs to the defendants in this case.

For more information, see Delanty v. Hogan, 2023 ONSC 2501 (CanLII).