A recent decision of the Ontario Divisional Court confirmed the high level of deference which the courts apply to decisions of the Workplace Safety and Insurance Appeals Tribunal (WSIAT), even where there is an inconsistency in the decision.
Blatz v Ontario (Workplace Safety and Insurance Appeals Tribunal), 2016 ONSC 7259 (CanLII), was a judicial review of a WSIAT decision which found Mr. Blatz was in the course of employment when returning to work after lunch.
Mr. Blatz and a co-worker were doing construction work in a remote location in Ontario. Their employer required them to stay overnight at a hotel near the job site.
The workers could decide where to eat lunch. One day they decided to drive from the job site to the closest town, to eat at a restaurant. The co-worker drove his car. Mr. Blatz was a passenger. They drove directly from the job site to the restaurant. After lunch they were driving back to the job site when they were involved in a single vehicle accident. Mr. Blatz was injured in the accident.
The issue which WSIAT had to determine was whether Mr. Blatz was a worker in the course of his employment at the time of the injury.
The WSIAT vice-chair noted that lunch breaks are generally considered to be personal time, during which a worker is not in the course of employment. However, there is an exception where a worker is working in a remote location.
The vice-chair cited the WSIB Policy on “Travelling”, and prior WSIAT decisions which had found workers in remote locations were considered to be engaged in activities which were reasonably incidental to their employment when going for meals in a restaurant and socializing. The vice-chair found that Mr. Blatz was working at a remote location, his accommodation was paid for by the employer, he received a higher rate of pay for working at a remote location, he received a per diem for meals and other expenses while away from home, and his co-worker received money for mileage for using his car. Most significantly, he and his co-worker went directly from the job site to the restaurant and were returning directly to work as soon as they had finished lunch.
The vice-chair held that in these circumstances, travelling for lunch was not a “distinct departure on a personal errand”, it was an activity “reasonably incidental to employment” at the time of the accident. Accordingly the vice-chair found Mr. Blatz was in the course of his employment so his right of action was taken away. This meant Mr. Blatz was eligible to claim benefits under the Workplace Safety and Insurance Act.
Mr. Blatz commenced an application for judicial review. The main issue was the significance of a sentence in WSIAT’s decision which was inconsistent with the analysis and decision in the rest of the decision. This sentence stated Mr. Blatz and his co-worker were not in the course of their employment while they were on their lunch break. Mr. Blatz argued this statement made the entire decision unclear, so it should be quashed.
The Divisional Court Panel of Justices Thorburn, Tausendfreund and Harper unanimously dismissed the judicial review.
The test on judicial review of a WSIAT decision is whether the decision is reasonable. The Court noted that a “very high level of deference” is afforded to WSIAT decisions. Whether a WSIAT decision is reasonable requires a consideration of whether the decision is transparent and intelligible and falls within a range of possible, acceptable outcomes which are defensible on the facts and the law. The Court noted:
“The decision should be approached as an "organic whole, without a line-by-line treasure hunt for error” (Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC62,  3 S.C.R. 708.) (note: emphasis added for this article)
This means that the court will only interfere where there is no evidence in support of a finding of fact or if there are no lines of reasoning that would support the decision. (Dunsmuir v. New Brunswick, 2008 SCC 9,  1 S.C.R.190 at para. 40.)”
The Court found that the vice-chair’s ten page decision provided a comprehensive review and analysis of the evidence, and his overall conclusion was clear. While there was one erroneous statement “the decision as a whole shows a clear line of reasoning supporting the Vice Chair's conclusion, and evidence that justifies his conclusion. Moreover, the decision falls within a range of possible, acceptable outcomes which are defensible in respect of both the facts and law.”
About the author
Dan Revington, a former WSIAT General Counsel, has considerable experience in applications for judicial review.