) ) INTERPAVING LIMITED Applicant – v. –, 2023 ONSC 5162

CITATION : Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 5162 DIVISIONAL COURT FILE NO.: 250/22 DATE: 20230913 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Gomery, and Nishikawa JJ.

BETWEEN: ) ) INTERPAVING LIMITED Applicant – and – WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and JEREMY VAUGHAN Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Norm Keith and Maciej Lipinski for Interpaving Limited Brendan McCutcheon and Brendan Scott for Jeremy Vaughan Chris Paliare and Braxton Murphy for the WSIAT ) ) HEARD by Videoconference in Toronto: September 11, 2023 REASONS FOR DECISION Justice Sally Gomery [ 1 ] On September 15, 2015, Jeremy Vaughan, a road crew foreman employed by Interpaving Limited, crashed a company- owned vehicle while driving home from work with two members of the road crew.

There were open and closed beer cans found at the scene of the accident, Mr. Vaughan was found to have a blood alcohol level above the legal limit, and the police concluded that alcohol was a significant factor in the accident. Criminal charges were laid, and Mr. Vaughan eventually pleaded guilty to driving while impaired. [ 2 ] Mr. Vaughan sustained a spinal cord injury resulting in paraplegia in the accident. He applied for benefits under the Workplace Safety and Insurance Act, 1997 , S.O. 1997, c. 16, Sched. A (the “ Act ”). On October 16, 2015, a WSIB Eligibility Adjudicator determined Mr.

Vaughan was entitled to benefits because he was required to drive the company vehicle, with his coworkers, to and from the worksite for purposes of his employment, and he was in the course of employment when the accident occurred. Interpaving sought reconsideration of this decision by a Case Manager, who affirmed the Adjudicator’s decision in 2016. Interpaving then appealed unsuccessfully to an Appeals Resolution Officer. It then appealed to the Workplace Safety and Insurance Appeals Tribunal, which held a de novo hearing.

On April 4, 2022, in Decision No. 852/19, the Tribunal upheld the earlier decision granting Mr. Vaughan benefits. [ 3 ] In this judicial review application, Interpaving contends that the Tribunal’s Decision was unreasonable, for three reasons. First, it was unreasonable for it to conclude that Mr. Vaughan was in the course of his employment when he drove home. Second, the Tribunal unreasonably found that Mr. Vaughan was in the course of employment notwithstanding evidence that he had embarked on a personal errand and had consumed alcohol to excess before the accident.

Third, the Tribunal misinterpreted s. 17 of the Act , which governs whether a worker will be eligible for benefits if an injury is attributable solely to their own serious and wilful misconduct. [ 4 ] Having reviewed the Tribunal’s Decision, the evidence before it, and the submissions and caselaw presented by the parties on this application, I conclude that Interpaving has not shown that the Tribunal’s decision is unreasonable. I would accordingly dismiss the application for judicial review.

(1) Did the Tribunal unreasonably conclude that Mr. Vaughan was in the course of his employment when he was driving homein the company truck? [5] As held in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, a reasonabledecision is one that is based on an internally coherent and rational chain of analysis and is justified in relation to the facts and law thatbore on the decision: Vavilov, at para. 85. The hallmarks of reasonableness are justification, transparency, and intelligibility: Vavilov, atpara. 99. In Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v.

Bricklayers, Masons Independent Union of Canada, Local 1,2022 ONCA 780, at paras. 55 to 58, the Ontario Court of Appeal identified the two types of error that may render an administrativetribunal’s decision unreasonable: a failure of rationality internal to the reasoning process, and the untenability of the decision, in light ofthe relevant factual and legal constraints that bear on it.

The Court in Turkiewicz held that the expertise of the administrative decision-maker was relevant to a reviewing court’s assessment of reasonability. [6] In my view, Interpaving has not identified any failure of rationality or the fundamental untenability of the Tribunal’sdetermination that Mr. Vaughan was in the course of his employment when the accident occurred on September 15, 2015. Interpavinginstead seeks to have this Court revisit the evidence before the Tribunal and substitute its own findings of fact and law. [7] The Tribunal heard evidence and argument over four days in May and July 2021.

Although the parties submitted an agreedstatement of facts, five witnesses testified. In its 41-page Decision, the Tribunal assessed this evidence as well as the Act, the applicablecollective agreement, and the WSIB Operational Policy Manual’s entries on “Accident in the Course of Employment” (OPM DocumentNo. 15-02-02) and “Travelling” (OPM Document No. 15-03-05). [8] At para. 207 of its Decision, the Tribunal concluded that Mr.

Vaughan was required to transport himself and his two crewmembers away from the site at the end of the workday, and so was in the course of his employment when the accident occurred: Under the terms of OPM Document No. 15-03-05, a worker is in the course of employment if an employer requires the worker to driveto and from work for the purpose of employment. That is clearly the case for the worker in this appeal.

He was provided with a companyvehicle and was responsible for using it to get himself to and from work, and to transport his crew to and from the various worksites inaccordance with the terms of the Collective Agreement. The vehicle was also used as a storage place for the safe keeping of tools andmaterials owned by the employer.

Whether the vehicle is provided as a taxable employee benefit is not determinative of its status.Rather, it is the decision made by the employer to impose a condition that the worker use the vehicle for travel purposes that brings thesituation within the scope of the "course of employment" under OPM Document No. 15-03-05. [9] The factual determinations giving rise to this conclusion were based on the Tribunal’s assessment of the evidence before it,including viva voce evidence. [10] Interpaving argues that the Tribunal ignored Mr.

Vaughan’s admission, in cross-examination, that he was “off the clock”when the accident occurred. I do not agree that Mr. Vaughan made an unambiguous admission, as argued by Interpaving’s counsel. TheTribunal was furthermore not required to mention every piece of evidence before it. I am satisfied, based on a review of the Decision,that the Tribunal was aware of the evidence and Interpaving’s arguments with respect to it. [11] Interpaving argues before this court, as it did before the Tribunal, that Mr. Vaughan was not a credible witness, in part due tohis criminal record.

It contends that the Tribunal should not have relied on anything he said without corroboration, especially when itwas contradicted by other evidence, citing R. v. Corbett, (SCC), [1988] 1 SCR 670. The Tribunal addressed thisargument at para. 245 of the Decision: The Panel agrees that the evidence concerning the worker's criminal record, including information relating to a previous conviction forimpaired driving, is before the Panel and the parties in this appeal. As Mr. Keith has stated, this evidence is on the record, and the Panelhas reviewed and considered it.

However, the Panel has concluded that the evidence concerning the worker's previous criminal recordhas limited relevance in this appeal. [12] The Tribunal ultimately rejected some, but not all, of Mr. Vaughan’s evidence. It relied on other evidence, in addition to Mr.Vaughan’s evidence, in finding that he was in the course of his employment when the accident happened. It explained why it acceptedsome of Mr.

Vaughan’s evidence, at para. 241: [W]hile we find that the worker's testimony regarding the number of beers he drank on September 15, 2015 is not reliable, we find thatother evidence provided by the worker, in particular the details concerning travelling arrangements, does not raise the same credibilityconcerns.

The worker's testimony in general was detailed and straightforward and, importantly, with respect to the question of theworking conditions concerning the company vehicle, getting to and from the work site, and whether the worker was paid, we find thatthe testimony was consistent with the preponderance of the documentary evidence. [13] A trier of fact may accept some, all, or none of a witness’ evidence. It is uniquely positioned to assess the credibility ofwitnesses and to weigh their evidence. In this case, the Tribunal concluded that Mr.

Vaughan’s evidence was reliable on some pointssince it was consistent with the preponderance of the documentary evidence. [14] This court’s role is not to revisit these findings in the absence of a serious flaw in the Tribunal’s reasoning processes or adecision that cannot reasonably be made on the evidence. Interpaving has had three opportunities to litigate the facts in this case, first inits request for reconsideration, then in an appeal to an Appeals Resolution Officer, then in a de novo hearing before the Tribunal.

Anapplication for judicial review is not an opportunity to relitigate the evidence yet again. [15] I do not find the Tribunal’s determination on this issue was unreasonable or that it results in an untenable conclusion. Itsanalysis of the evidence was nuanced and thorough. Its reasoning on this issue is coherent, intelligible, and transparent.

(2) Did the Tribunal unreasonably conclude that Mr. Vaughan was still in the course of his employment when the accidentoccurred?

[16] Interpaving argues that it was unreasonable to conclude that Mr. Vaughan was still in the course of his employment when theaccident occurred, because (1) the Tribunal should have inferred, on the evidence, that he stopped to purchase beer after he left work,and (2) because his decision to drink to excess severed the nexus between of employment. [17] Interpaving’s first argument once again inappropriately invites the court to revisit the Tribunal’s assessment of the evidence. The Tribunal thoroughly reviewed the evidence as to whether Mr.

Vaughan had stopped to buy alcohol before the accident, in particularthe evidence gathered by the Ontario Provincial Police investigation. It concluded that Mr. Vaughan likely did not stop, writing at para.216: In the Panel's view, there was in all likelihood not enough time for the worker to have stopped his truck to buy beer, or for any otherreason, between the time he left the MTO yard and suffered the accident. The accident occurred between 8:00 and 8:10 pm, 30-40minutes after leaving the yard, and the worker had driven approximately 35 kilometers.

Had the worker stopped temporarily along theway, the individual who observed him leaving the worksite would have passed him on the highway, which was not the case. [18] Interpaving again argues that the Tribunal should have addressed evidence favourable to its argument that Mr. Vaughan mayhave stopped to buy beer, such as the cold cans of beer found at the site of the accident. The Tribunal adverted to this evidence elsewherein its decision.

As mentioned earlier, a trier of fact is not bound to explicitly address every piece of evidence relied on by a party withregard to each specific argument. [19] I do not find the Tribunal’s analysis or the conclusion reached on this issue to be unreasonable. [20] With respect to the second argument, the Tribunal concluded that the extent of Mr. Vaughan’s alcohol consumption was notrelevant to the determination of whether he was in the course of his employment when the accident occurred.

This was not anunreasonable determination, given the Tribunal’s findings of fact about the circumstances in which the accident occurred. [21] Interpaving relies on Decision No. 625/17, 2017 ONWSIAT 2325 to argue that Mr. Vaughan’s intoxicationnecessarily implied that he could not be in the course of his employment. Decision No. 625/17 does not stand for the broad propositionthat the quantity of alcohol or drugs consumed alone may sever the employment nexus.

In fact, at para. 29, it explicitly endorses that“drinking, in and of itself, is not sufficient for a panel to conclude that a worker's accident did not arise out of and in the course of hisemployment”. The panel in Decision No. 625/17 recognized that the circumstances surrounding the drinking and the accident must beconsidered. [22] In Decision No. 625/17, a worker was staying at a hotel on a work trip and had begun drinking after the end of the workday,when he did not expect to do any more work duties until the next day.

In these circumstances, the worker was found not to be performingwork duties in the lead-up to the injury. These facts are readily distinguishable from the facts found by the Tribunal in this case. [23] The Tribunal found that Mr. Vaughan was engaged in work duties, driving two coworkers from the site, when he was injured. The Tribunal did not review each of the factors considered in Decision No. 625/17. It was not required to do so, however, so long as itsdetermination on this point, and the analysis underlying the determination, were reasonable. They were, in my view.

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 insuranceplan 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 drivingwhile 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 decisionaddressing 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 hisemployment.

In our view, to hold otherwise is inconsistent with the no-fault nature of the compensation scheme and plain meaning ofsection 17. Decision No. 696/96 (1996), 40 W.C.A.T.R. 200, addressed the interplay between the definition of accident, the general entitlementprovision, 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 toserious and wilful misconduct, we would defeat the purpose of section 4(7) [predecessor to

section 17] which specifically states thatworkers with serious injuries are to be compensated regardless of their actions. We conclude therefore that the Act requirescompensation despite serious and wilful misconduct where the worker's injuries are serious where the worker is otherwise in the courseof 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 theaccident he was actually performing his regular duties as a truck driver during regular work hours and at a location where he wasexpected to be. He was in the course of his employment.

However, even if his intoxication was antithetical to the employmentrelationship 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 referback to this passage in its s. 17 analysis, it shows that the Tribunal’s

interpretation of s. 17 is consistent with its earlier decisions. TheTribunal has great expertise in workplace safety and statutory benefits and the Act contains the “toughest privative clause known toOntario law” [Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719 at para 22, [leave toappeal denied (SCC)]]. As a reviewing court, it is appropriate to take this into account in assessing the reasonabilityof its findings and conclusions, especially when a decision, as here, adopts an analytical framework endorsed in a long line of decisionsby 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 haveengaged in serious and wilful misconduct. The only exception is where a worker has sustained serious impairment or has died.

Anotherpurpose 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 otherworkers 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 thecriteria in Vavilov and Turkiewicz.

I conclude that there is no basis on which to interfere with the Tribunal’s finding that Mr. Vaughanwas seriously impaired as a result of the injuries he sustained in the accident, and thus entitled to benefits even though the accident wascaused by his own willful and serious misconduct. Disposition [38] I would dismiss the application for judicial review, with $7,500 in costs to Mr. Vaughan payable by Interpaving, based on theparties’ agreement on costs, and no costs payable to or from WSIAT. ________________________________________ S. Gomery, J. “I agree” ________________________________________ N.

Backhouse, J. “I agree” ________________________________________ S. Nishikawa, J. Date of Release: September 13, 2023 CITATION: Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 5162 DIVISIONAL COURT FILE NO.: 250/22DATE: 20230913

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Gomery, and Nishikawa JJ. BETWEEN: INTERPAVING CONSTRUCTION LIMITED Applicant – and – WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL and JEREMY VAUGHAN Respondents REASONS FOR DECISION Date of Release: September 13, 2023