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 employment.

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