Ontario’s Workplace Safety and Insurance Appeals Tribunal has decided that a worker was not acting in the course of employment when she slipped and fell in the parking lot of the mall where she worked. As a result, she could not access workers’ compensation benefits; however, she retained her right of action in a civil suit against the owner of the parking lot.

The worker was on her way to work in a store located in a large shopping mall when she suffered injuries following a slip and fall. She was walking from her parking spot at the perimeter of the parking lot to the mall.

She brought a civil action against the mall owner, and the mall owner applied to the Workplace Safety and Insurance Board (WSIB) to determine whether the worker’s right of action in a civil case even existed. The owner wanted this to be a workers’ compensation matter involving the worker and her employer.

The tribunal noted that workers in the mall were directed to park at the perimeter; however, there were no spots specifically assigned to the workers. Her employer did not lease or own the parking lot. The only connection between the employer and the parking lot was that the employer was required to pay a part share of expenses (including cleaning and snow removal).

The tribunal concluded that these factors were not sufficient to indicate that the employer exercised any degree of control over the area. The location of the accident did not constitute part of the employer’s premises. Therefore, this was not a workers’ compensation matter. As a result, the worker was not in the course of employment at the time of the accident.

This meant the worker retained her right of action in a civil suit against the mall owner (and anyone else for that matter).

What does this mean practically? Employers must be aware that a worker has to be acting in the course of employment in order to qualify for workers’ compensation benefits. If it can be shown that the worker was not in the course of employment, then the benefits are not available.

If benefits are not available because the worker is not eligible, the worker is free to pursue actions in court for a remedy.

See the following WSIB policies for more information on “in the course of employment”:

Accident in the Course of Employment

On/Off Employers’ Premises

Christina Catenacci
First Reference Human Resources and Compliance Editor