In Decision No. 774/25, the Workplace Safety and Insurance Appeals Tribunal (the Tribunal) offered a practical application of the “in the course of employment” requirement under Policy 11‑01‑01 (Adjudicative Process) and Policy 15‑02‑02 (Accident in the Course of Employment). The decision highlights how location, timing, and the nature of a worker’s activity remain determinative factors in cases where an injury occurs off employer premises.
Background
The Worker, an Educational Assistant (EA), sustained multiple injuries on September 1, 2020, after tripping on publicly‑owned bleachers while returning from lunch during a PD workday. The WSIB denied initial entitlement, finding that the accident did not occur in the course of employment. The Worker appealed to the Tribunal.
Facts
During the appeal, the following facts were established:
- The accident occurred on bleachers located approximately eight (8) feet from the school building; the bleachers were owned and controlled by the City, not the Employer.
- The Worker had finished her lunch inside her car and walked to the bleachers after colleagues invited her over to chat.
- The group was returning to the school when the Worker tripped and fell.
- At the time, due to COVID-19 precautions, the Employer had encouraged staff to eat lunch outdoors.
- Under the collective agreement, lunch breaks for EAs were unpaid.
Applicable Policies
Under Policy 11-01-01, an allowable claim must have the following five points, also known as the “five point check system”:
1. an employer
2. a worker
3. personal work-related injury
4. proof of accident, and
5. compatibility of diagnosis to accident or disablement history.
The key issue in this appeal was point three: whether the Worker sustained a personal work‑related injury.
Under Policy 15-02-02, “Accident in the Course of Employment”, a personal injury by accident occurs “in the course of employment” if the surrounding circumstances relating to place, time, and activity indicate that the accident was work-related.
Analysis
The Panel denied the Worker’s appeal, finding that place, time, and activity all weighed against a finding that the accident occurred in the course of employment.
(a) Place of the Injury
In this case, the location of the incident was not part of the Employer’s premises, nor was it within the Employer’s care or control. Although the bleachers were nearby to the Employer’s premises, they were ultimately situated on public property accessible to the general public. As a result, the risk of tripping on the bleachers was considered a public risk, not an employment‑related one.
(b) Time of the Injury
The time of injury further did not support that the injury was work-related. Although the agenda provided for the day listed a lunch period from 11:30am to 12:45pm, the applicable collective agreement provided for only a 30-minute unpaid lunch. The Panel found that there was not sufficient evidence to determine clearly whether the Worker was being paid for the specific time period when the accident occurred. This ambiguity weighed against finding that the accident occurred during the course of employment.
(c) Activity in Question
Finally, the Worker’s activity at the time of the injury was personal rather than work‑related. The Worker had finished eating and was socializing with colleagues when called over to the bleachers. Although the Employer had encouraged staff to eat outdoors due to COVID‑19 precautions, the Worker was not required to be at the bleachers, nor was she engaged in a work‑related activity when the injury occurred.
Conclusion
Based on the circumstances, the Panel concluded that the Worker was not in the course of her employment when the accident occurred and therefore did not have entitlement to WSIB benefits.
Takeaways
The following are key consideration for both workers and employers:
- Location Matters: Injuries occurring off employer premises tend to weigh against a finding that a worker was “in the course of employment”. In these circumstances, entitlement may be denied unless it can be shown that the worker left the premises for the purpose of employment (see all Policy 15-03-03, On/Off Employers’ Premises).
- Break Status May Impact Entitlement: Unpaid break periods can break the employment connection, particularly when the worker is engaged in personal, non-work-related activities during the break period.
- Personal Activities are Generally Not Covered: personal activities such as running errands or socializing, may remove the activity from the scope of employment.
- Circumstances Matter: When determining whether an injury occurred in the course of employment, decision-makers assess the place, time, and activity in question, as well as the relevant circumstances of the case.
- Document the Work Connection (or Lack Thereof) Early: both workers and employers should ensure that key facts are recorded promptly following an injury, including:
- Location: Where did the injury occur? Was it on employer premises or elsewhere?
- Timing: When did the injury occur? Was the worker on paid duty or an unpaid break?
- Activity: What was the worker doing at the time of injury? Was the activity work‑related or personal?
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