The Northwest Territories and Nunavut Workers' Safety and
Compensation Commission ("WSCC") will compensate an
employee for injuries, diseases or death ("harm") which
arises out of, and is suffered in the course of the employee's
employment. Similar language is used by other workers'
compensation commissions as well.
For employers who have people working for them and travelling to
remote worksites, this should raise some alarm bells around
liability issues. When is an employee considered "on the
job" and if an accident occurs, did that accident happen as
part of the job or outside of what is considered the employee's
The dictionary tells us that "arising out of" refers
to what caused the harm, and "during the course of"
refers to the time and place of the harm and its connection to the
Arising Out of Employment
In the NWT and Nunavut, the WSCC has a policy which provides
that harm arises out of an employee's employment when it is
caused by a work hazard. In determining whether the harm was caused
by a work hazard, the WSCC will decide on a balance of
probabilities whether the harm would have occurred without the
contribution of the work hazard. The WSCC decides whether the harm
suffered by the worker occurred because of some aspect of the
everyday requirements of that worker's employment. The link
between the harm suffered and the work hazard must be direct and
During the Course of Employment
The WSCC policy also requires that for harm to be compensable,
it must have occurred during the course of employment. This means
that harm to an employee will be considered to have occurred
"during the course of their employment" when it occurs at
a time and place consistent with the obligations of that
employment. However, it is important to note that it is not
necessary for the harm to occur solely during the normal hours of
work or exclusively on the employer's premises, but a
relationship between the employment expectations and the time and
place of the harm must exist.
Disqualification of Activities
Harm to an employee is generally compensable when the employee
is engaged in the performance of a work-related activity that is
incidental the employee's employment. If an employee is harmed
while engaged in an activity that is unrelated to their employment,
the claim may be disqualified.
This does not mean that any break from performing "work
activities" to perform a "personal activity" will
necessarily mean that an employee has left the course of his/her
employment. The factors which the WSCC will consider in determining
whether the personal activity occurred in the course of employment
1) The duration of the activity;
2) The nature of the activity; and
3) The extent to which the activity deviated from the
worker's regular employment activities.
The factors are considered in the context of the nature of the
work, the nature of the work environment and the customs and
practices of the particular workplace.
For employers, this still creates many difficulties. If an
employee is injured while flying into a remote site to work, that
injury would very likely be found to have arisen in the course of
the employee's employment.
Other instances would not be as easily determined. What about an
accident that occurs on the drive to the airport, on a road which
otherwise the employee would not be driving on? What about food
poisoning which comes about from the employee eating something at
the airport restaurant while waiting for the flight, which was
delayed? These cases will be determined on each individual
It is important that employer's be aware that all workplace
accidents need not occur while an employee is "on the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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