The B.C. Workers' Compensation Appeal Tribunal
("WCAT") in Browne v. British Columbia (Workers'
Compensation Appeal Tribunal) considered a petition by 14
temporary farm hands who were injured when a truck they were riding
in left the road and rolled down an embankment. Before and
after work each day the 14 workers were driven to and from their
residence. Both the driver and the owner of the truck involved in
the accident were also employees of the farm, the latter was the
farm's General Manager. The question was whether the drive was
in the course of employment, thereby warranting entitlement to
workers' compensation benefits or rather personal activity
which would not.
Generally, where one worker injures another in the course of
employment, Section 10 of the B.C. Workers' Compensation Act
bars the injured worker from taking civil action directly against
their co-worker. So, when personally sued by the 14 injured
passengers for negligent operation of a motor-vehicle, the driver
of the truck claimed she was engaged in the course of her
employment when the accident occurred. If the WCAT agreed, the
injured workers would have been required to apply for Workers'
Compensation or to sue their employer directly.
The Tribunal held that driver's decision to take the 14
workers home after work, in a personal vehicle, and without
compensation from her employer was a personal favour – not an
act in the course of her employment. As a result, the injured
workers were open to pursue their negligence case against the
driver rather than pursue a case against their employer. The
decision was appealed to the British Columbia Court of Appeal, but
the WCAT decision was
upheld (not overturned) and the Appeal dismissed.
Each Canadian province has its own rules, policies, and
provincial legislation regarding workers' compensation so this
decision must be applied cautiously in other provinces. However, it
suggests that in some cases driving employees to and from the
workplace could be considered outside of the proper scope of
"employment" for the purposes of such legislation.
Divining the line between "personal activity" and
"employment activity" will be a fact specific
question, considering such things as whether the employee
receives compensation for the activity, whether company equipment
is being used and whether the act is further to a direction of the
employer. Where any or all of those questions are answered in
the affirmative, employers should be aware that there could be
a risk the activity is viewed as being in the context of
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