transportation law lunch & learn - mccague...

TRANSPORTATION LAW LUNCH & LEARN“Workers’ Compensation & The Canadian Trucking Industry”

Thursday, October 18, 2012 | 12:00 pm to 2:00 pm

The Distinction Between Employee vs. Independent Operator

The Impact of WSIB Legislation On Agency Or Temporary Drivers

What Is Meant By “In The Course Of Employment”

www.mccagueborlack.com

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130 King Street West Suite 2700, P.O. Box 136

The Exchange TowerToronto, ON M5X 1C7

INDEX

Fact Scenario..............................................................................................................................1 The Incident......................................................................................................................1 Facts of the Accident........................................................................................................1 Background Information....................................................................................................2

Frank Foster - Examination for Discovery...............................................................................4

Steve Sharp - Examination for Discovery................................................................................7

BP Transport Ltd. - Examination for Discovery.......................................................................9

Appendix...................................................................................................................................11

Workplace Safety and Insurance Act, 1997 - S.O. 1997, c. 16, Sched. A......................11 WSIB Ontario Bulletin - Accident in the Course of Employment.................................15 WSIB Ontario Bulletin - Travelling..................................................................................18 WSIB Ontario Bulletin - Personal Activities/Removing Self From Employment..........21

Transportation Law Practice Group Profile...........................................................................23

Accident Benefits Practice Group Profile..............................................................................25

Presenter Profiles.....................................................................................................................26 Maya Jacob.....................................................................................................................26 Anthony Mancuso............................................................................................................27 Tobin Horton....................................................................................................................28 Marie-Pier Nadeau..........................................................................................................29 Sarah Valair.....................................................................................................................30 Michael Blinick.................................................................................................................31

1October 18, 2012 MCCAGUE BORLACK LLP -TRANSPORTATION LAW LUNCH & LEARN

This application to the Workplace Safety and Insurance Appeals Tribunal (WSIAT) has

been brought under section 31 of the Workplace Safety and Insurance Act (the “WSIA”)

by several defendants in two civil actions. The two civil actions arise out of a multi-motor

vehicle accident that occurred on October 7, 2011. The applicants seek a determination

that the plaintiffs’ (and respondents to this application) right to sue is taken away by the

WSIA.

FACT SCENARIO

THE INCIDENT

The accident involving three tractor-trailers occurred at approximately 4:40 p.m. on Friday,

October 7, 2011 on Highway 427 near Vaughan, ON.

At the time of the accident, Frank Foster was operating a tractor-trailer loaded with cargo,

traveling northbound in the far-left lane of Highway 427 at a speed of 108 km/h. Suddenly

blinded by billowing black smoke coming from a nearby farmer’s field, Frank slammed on

his brakes, jack-knifing the truck in the middle of the highway.

Steve Sharp had been traveling behind Frank’s vehicle in the next lane over, at a

reasonable speed and similarly loaded with cargo. Steve was unable to avoid a violent

collision with Frank’s vehicle when it jack-knifed and careened in front of his truck. Almost

instantaneously, Donald Dixon, the driver of a tractor-trailer following behind Steve,

slammed on his brakes but was unable to avoid involvement in the collision. It was later

determined that Donald’s brakes had malfunctioned due to negligent repair.

As a result of the accident, Steve broke his arm and injured his neck and back so severely

that he claims he is unable to continue working as a truck driver. He has brought an

FACTS OF THE ACCIDENT

2 October 18, 2012MCCAGUE BORLACK LLP -TRANSPORTATION LAW LUNCH & LEARN

FACT SCENARIO

action against Frank Foster, Coastal Transportation Inc., Donald Dixon, Drivers-4-Hire,

BP Transport Ltd., and Farmer MacDonald.

Donald was also injured as result of the accident. He has brought an action against both

drivers, Coastal Transportation Inc., Freight Solutions Ltd., BP Transport Ltd., and Farmer

MacDonald.

Frank FosterFrank Foster, 45, is a long-haul truck driver. Although he has a registered business of his

own, Frank’s Transport, he typically only accepts loads from Coastal Transportation Inc.

The 2008 Peterbilt truck that Frank operates is owned by Coastal Transportation Inc.

Steve SharpSteve Sharp, 38, is a long-haul truck driver. He has been employed with Freight Solutions

Ltd. for the past twelve years.

Steve accepted a seven-day trip to haul bagels from Quebec City, QC to Edmonton, AB.

On the second day of his trip, as Steve departed from a motel stay in Kingston, ON, he

logged into the company’s computer log system. He advised his employer that, as he

would be driving through Toronto shortly, he planned to spend the evening at a friend’s

home located north of the city in Kleinburg, ON. He received no reply to this message.

He had exited Highway 401 and was making his way to Kleinburg when the accident

occurred.

Donald DixonDonald Dixon, 26, is an employee of “Drivers-4-Hire”, a Schedule 1 employer, who is

in the business of recruiting truck drivers and providing those drivers to transportation

companies on a temporary basis. At the time of the accident, Donald has been employed

by Drivers-4-Hire for just over fourteen months.

BACKGROUND INFORMATION


Drivers-4-Hire told Donald that he was needed for a short trip from Toronto to Sudbury,

ON. At the time of the accident, he had just loaded in Toronto and was setting off on his

journey.

BP Transport Ltd.BP Transport Ltd. (“BP”) is a transportation company who owns and maintains a vast

fleet of tractors and trailers for both short and long-haul cargo transport. BP employs a

number of staff who are responsible for maintaining the tractors and trailers in BP’s fleet.

BP has a contract with Drivers-4-Hire whereby Drivers-4-Hire provides drivers and BP

provides trucks and loads.

FACT SCENARIO


Excerpts from the Examination for Discovery of Frank Foster held on April 17, 2012

. . . . .

Examiner: How long have you been a truck driver, Mr. Foster?

Frank Foster: About ten years, I guess. Too long! I’ve driven for a few different companies

over the years, but I’m my own man.

Examiner: I see. How long have you worked with Coastal Transportation?

Frank Foster: A few years now. I started my own company back in 2007, Frank’s

Transport. I have a little office at home, like I said, I’m a businessman. But Coastal,

I hooked up with them after that I guess. They gave me tons of work, kept me busy. I

wasn’t really taking loads from anyone else anymore.

Examiner: So at the time of the accident, you were only working for Coastal?

Frank Foster: Well, I wasn’t working for them. I mean, I was, but I did my own thing! If

I didn’t want to go out one week, I didn’t go. If I needed a load that paid more, they tried

to give it to me.

Examiner: So you were able to turn down work whenever you wanted to?

Frank Foster: Well, yeah, I could’ve. I just never did.

Examiner: Can you tell me about your brother’s wedding last May?

FRANK FOSTER

EXAMINATION FOR DISCOVERY


Frank Foster: Oh. Yeah. Well, I had to miss it. I was working. Had to take a last-minute

trip. But I mean, it was a favour for the guys at Coastal.

. . . . .

Examiner: What sort of payment arrangement do you have set up with Coastal?

Frank Foster: I got paid per job. So they got the cheque for the load – I got a portion of it.

Examiner: Did Coastal ever make any specific deductions from your pay, for CPP or EI,

something like that?

Frank Foster: No, Coastal just paid me per load. Usually about half of whatever they

got from the broker.

Examiner: And how did you deal with your income tax?

Frank Foster: I did all that myself. Paid my own way. They wanted it set up like that

from the get-go.

Examiner: I see. I also see that your 2010 tax return states that you are self-employed.

Is that correct?

Frank Foster: I was. I am. I mean, I’m not working right now because my back’s so

screwed up, but yes, I did it all myself through Frank’s Transport.

Examiner: Ah yes, your back. It’s prevented you from working, I understand. And so

you submitted a claim to the WSIB for compensation?

Frank Foster: Yeah.

Examiner: I’d like to show you something. Here on this Worker’s Report of Injury, dated

just a few days after the accident, you’ve listed your occupation as truck driver. And right

here where it says “Employer”, can you read what you’ve listed there?

EXAMINATION FOR DISCOVERY • FRANK FOSTER


Frank Foster: Coastal Transportation.

. . . . .

Examiner: Did you ever own your own tractor and trailer?

Frank Foster: No, I never did. Like I said, I drove for other people so I just used their

trucks. Like with Coastal, I had a beautiful Peterbilt that they gave me for all my trips. No

one else drove it. She was mine. I stored all my stuff in there: my boots, my sleeping stuff

and my little fridge, all my tools.

Examiner: I assume this was the 2008 Peterbilt that you were driving when you were

involved in the October 7, 2011 accident. You say she was yours, but to be clear, Coastal

Transportation was the owner. Were you responsible for maintaining the truck? Paying

for fuel? Insurance?

Frank Foster: Well, no. I guess Coastal did all that.

. . . . .

EXAMINATION FOR DISCOVERY • FRANK FOSTER


Excerpts from the Examination for Discovery of Steve Sharp held on April 18, 2012

. . . . .

Examiner: I know MTO has some specific requirements regarding your log books. Can

you tell me about that?

Steve Sharp: Yeah, it’s a hassle sometimes, but I guess they always have to know where

you’re at. My boss always requires us to log on and off our computer log system, all the

time – when I was on duty and driving, when I was on duty and not driving, and when I

was off-duty. Like I said, it’s a hassle.

Examiner: What about the route to your destination? Were you instructed to take the

most direct route or given a specific route to follow?

Steve Sharpe: No specifics really, but everyone knows the route. Just kind of expected

you’d take the most direct way to get there, but sometimes you’re in that truck for a whole

week! A guy needs a change of scenery. I mean, if you’re 100 km off course, they’d want

to know where you’re at. But as long as I got there in time to deliver my load, they didn’t

really care. I mean, they want to know what you’re doing along the way, but if you get a

little bit off course, it’s not like alarms were going off and you were getting fired.

Examiner: I see. What about payment? Were you paid by the kilometer?

Steve Sharp: No, just by the trip.

STEVE SHARP



EXAMINATION FOR DISCOVERY • STEVE SHARP

Examiner: So if you did want to take a different route, if you got off the beaten path, maybe

for some personal business, it didn’t matter. Did you need permission for something like

that?

Steve Sharp: Sort of. I guess so. You had to tell them what you were doing all the time.

Examiner: Is that what happened on October 7, 2011? What can you tell me about your

plans that day?

Steve Sharp: I wanted to stop in Kleinburg and see my friend, Lucy. So that morning, I

logged in to say I was back on duty. I was in Kingston the night before, stayed at a motel

just off the 401. So I logged in, said my ETA for Toronto was about 4:00 p.m. and then I’d

be hopping on the 427 to head up to Kleinburg to stay overnight.

Examiner: And did you receive a reply to this message?

Steve Sharp: Not really, no, but I know they got it. And they knew where I was gonna be!

Examiner: When did you log off or let your employer know you were off duty?

Steve Sharp: I guess when I got on the 427. I texted Lucy to let her know I’d be there

really soon, and I logged off. I was getting pretty far off the 401.

. . . . .


Excerpts from the Examination for Discovery of Lisa Ling, representative of BP Transport Ltd., held on April 17, 2012

. . . . .

Examiner: What was BP’s relationship with Drivers-4-Hire?

Lisa Ling: We used them from time to time; they provided us with drivers for our trucks if

we did not have any of our own drivers to drive a particular load.

Examiner: Did BP have a contract with Drivers-4-Hire? What were the details?

Lisa Ling: Yes. The contract was that Drivers-4-Hire would provide BP with a temporary

driver for a particular load and truck. BP would supply the truck and load and Drivers-4-

Hire would supply the driver.

Examiner: Does BP own its own trucks?

Lisa Ling: Yes BP owns and repairs its own trucks.

Examiner: What was the payment arrangement with Drivers-4-Hire and the brokers that

you received loads from?

Lisa Ling: BP typically gets paid per load by the broker that hires us to deliver the load.

Then we give a percentage of this to the driver, minus any applicable expenses. This is

the same if the driver is our driver or if the driver is from Drivers-4- Hire.

BP TRANSPORT LTD.



EXAMINATION FOR DISCOVERY • BP TRANSPORT LIMITED

Examiner: So BP takes a cut of the money per load regardless of if the driver is your

employee or from Drivers-4-Hire.

Lisa Ling: Yes, the cut is the same regardless.

. . . . .


Workplace Safety and Insurance Act, 1997

S.O. 1997, CHAPTER 16SCHEDULE A

Definitions 2. (1) In this Act,

“accident” includes,(a) a wilful and intentional act, not being the act of the worker,(b) a chance event occasioned by a physical or natural cause, and(c) disablement arising out of and in the course of employment; (“accident”)

“independent operator” means a person who carries on an industry included in Schedule 1 or Schedule 2 and who does not employ any workers for that purpose; (“exploitant indépendant”)

“worker” means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following:1. A learner.2. A student.3. An auxiliary member of a police force.4. A member of a volunteer ambulance brigade.5. A member of a municipal volunteer fire brigade whose membership has been

approved by the chief of the fire department or by a person authorized to do so by the entity responsible for the brigade.

6. A person summoned to assist in controlling or extinguishing a fire by an authority empowered to do so.

7. A person who assists in a search and rescue operation at the request of and under the direction of a member of the Ontario Provincial Police.

8. A person who assists in connection with an emergency that has been declared by the Lieutenant Governor in Council or the Premier under section 7.0.1 of the

APPENDIX


Emergency Management and Civil Protection Act or by the head of council of a municipality under section 4 of that Act.

9. A person deemed to be a worker of an employer by a direction or order of the Board.

10. A person deemed to be a worker under section 12.

Insured injuries13. (1) A worker who sustains a personal injury by accident arising out of and in

the course of his or her employment is entitled to benefits under the insurance plan.

Presumptions(2) If the accident arises out of the worker’s employment, it is presumed to have

occurred in the course of the employment unless the contrary is shown. If it occurs in the course of the worker’s employment, it is presumed to have arisen out of the employment unless the contrary is shown.

Exception, employment outside Ontario(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits

under the insurance plan if the accident occurs while the worker is employed outside of Ontario.

Exception, mental stress(4) Except as provided in subsection (5), a worker is not entitled to benefits under

the insurance plan for mental stress.

Same(5) A worker is entitled to benefits for mental stress that is an acute reaction to

a sudden and unexpected traumatic event arising out of and in the course of his or her employment. However, the worker is not entitled to benefits for mental stress caused by his or her employer’s decisions or actions relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment. 1997, c. 16, Sched. A, s. 13.

14. Repealed. See: Table of Public Statute Provisions Repealed Under Section 10.1 of the Legislation Act, 2006 – December 31, 2011.

APPENDIX • WSIA, 1997 - S.O. 1997, CHAPTER 16, SCHEDULE A


Application of certain sections27. (1) Sections 28 to 31 apply with respect to a worker who sustains an injury or

a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan. 1997, c. 16, Sched. A, s. 27 (1).

Same(2) If a worker’s right of action is taken away under section 28 or 29, the worker’s

spouse, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act. 1997, c. 16, Sched. A, s. 27 (2); 1999, c. 6, s. 67 (7); 2005, c. 5, s. 73 (7).

Certain rights of action extinguished28. (1) A worker employed by a Schedule 1 employer, the worker’s survivors

and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. Any Schedule 1 employer.2. A director, executive officer or worker employed by any Schedule 1 employer.

Same, Schedule 2 employer(2) A worker employed by a Schedule 2 employer and the worker’s survivors

are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:

1. The worker’s Schedule 2 employer.2. A director, executive officer or worker employed by the worker’s Schedule 2

employer.

Restriction(3) If the workers of one or more employers were involved in the circumstances

in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.

Exception(4) Subsections (1) and (2) do not apply if any employer other than the worker’s

employer supplied a motor vehicle, machinery or equipment on a purchase or rental basis



without also supplying workers to operate the motor vehicle, machinery or equipment. 1997, c. 16, Sched. A, s. 28.

Decisions re rights of action and liability31. (1) A party to an action or an insurer from whom statutory accident benefits

are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;(b) whether the amount that a person may be liable to pay in an action is limited

by this Act; or(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

Same(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described

in subsection (1).

Finality of decision(3) A decision of the Appeals Tribunal under this section is final and is not open to

question or review in a court.

Claim for benefits(4) Despite subsections 22 (1) and (2), a worker or survivor may file a claim for

benefits within six months after the tribunal’s determination under subsection (1).

Extension of time(5) The Board may permit a claim to be filed after the six-month period expires if,

in the opinion of the Board, it is just to do so. 1997, c. 16, Sched. A, s. 31.



WSIB Ontario Bulletin: Accident in the Course of Employment

Claims

Application DateThis policy applies to all decisions made on or after July 1, 1990, for all accidents.

Published 12-Oct-2004

Subject Work-Relatedness

Title Accident in the Course of Employment

Document No. 15-02-02

PolicyA 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.

GuidelinesIn determining whether a personal injury by accident occurred in the course of employment, the decision-maker applies the criteria of place, time, and activity in the following way:

PlaceIf a worker has a fixed workplace, a personal injury by accident occurring on the premises of the workplace generally will have occurred in the course of employment. A personal injury by accident occurring off those premises generally will not have occurred in the course of employment.

If a worker with a fixed workplace was injured while absent from the workplace on behalf of the employer or if a worker is normally expected to work away from a fixed workplace, a personal injury by accident generally will have occurred in the course of employment if it occurred in a place where the worker might reasonably have been expected to be while engaged in work-related activities.

APPENDIX • WSIB ONTARIO - ACCIDENT IN THE COURSE OF EMPLOYMENT


TimeIf a worker has fixed working hours, a personal injury by accident generally will have occurred in the course of employment if it occurred during those hours or during a reasonable period before starting or after finishing work.

If a worker does not have fixed working hours or if the accident occurred outside the worker’s fixed working hours, the criteria of place and activity are applied to determine whether the personal injury by accident occurred in the course of employment.

ActivityIf a personal injury by accident occurred while the worker was engaged in the performance of a work-related duty or in an activity reasonably incidental to (related to) the employment, the personal injury by accident generally will have occurred in the course of employment.If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was incidental to the employment. Similarly, engaging in a brief interlude of personal activity does not always mean that the worker was not in the course of employment. In determining whether a personal activity occurred in the course of employment, the decision-maker should consider factors such as

• the duration of the activity• the nature of the activity, and• the extent to which it deviated from the worker’s regular employment activities.

In determining whether an activity was incidental to the employment, the decision-maker should take into consideration

• the nature of the work• the nature of the work environment, and• the customs and practices of the particular workplace.

Application of criteriaThe importance of the three criteria varies depending on the circumstances of each case. In most cases, the decision-maker focuses primarily on the activity of the worker at the time the personal injury by accident occurred to determine whether it occurred in the course of employment.



If a worker with fixed working hours and a fixed workplace suffered a personal injury by accident at the workplace during working hours, the personal injury by accident generally will have occurred in the course of employment unless, at the time of the accident, the worker was engaged in a personal activity that was not incidental to the worker’s employment.

The decision-maker examines the activity of the worker at the time of the accident to determine whether the worker’s activity was of such a personal nature that it should not be considered work-related.

In all other circumstances, the time and place of the accident are less important. In these cases, the decision-maker focuses on the activity of the worker and examines all the surrounding circumstances to decide if the worker was in the course of employment at the time that the personal injury by accident occurred.

Application dateThis policy applies to all decisions made on or after July 1, 1990, for all accidents.

Document historyThis document replaces 03-01-02 dated April 25, 1990.

ReferencesLegislative authorityWorkplace Safety and Insurance Act, 1997, as amendedSection 13(1)Workers’ Compensation Act, R.S.O. 1990, as amendedSection 4(1)

MinuteAdministrative#1, June 25, 2004, Page 378



WSIB Ontario Bulletin: Travelling

Claims

Application DateThis policy applies to all decisions made on or after June 1, 1989, for all accidents.


Subject In the Course of and Arising Out of

Title Travelling


PolicyAs a general rule, a worker is considered to be in the course of the employment when the person reaches the employer’s premises or place of work, such as a construction work site, and is not in the course of employment when the person leaves the premises or place of work.

GuidelinesTravel on employer’s businessWhen the conditions of the employment require the worker to travel away from the employer’s premises, the worker is considered to be in the course of the employment continuously except when a distinct departure on a personal errand is shown. The mode of travel may be by public transportation or by employer or worker vehicle if the employment requires the use of such a vehicle. However, the employment must obligate the worker to be travelling at the place and time the accident occurred.

Proceeding to and from workThe worker is considered to be “in the course of employment” when the conditions of the employment require a worker to drive a vehicle to and from work for the purpose of that employment, except when a distinct departure on a personal errand takes place enroute.“In the course of employment” also extends to the worker while going to and from work in a conveyance under the control and supervision of the employer.

APPENDIX • WSIB ONTARIO - TRAVELLING


Overnight accommodationEntitlement under the Workplace Safety and Insurance Act or the Workers’ Compensation Act (the Act) extends to persons travelling in the course of employment to and from various places. Coverage also extends to accidents occurring in such places as hotels when the employer is paying the worker’s expenses. The worker is covered should he suffer injury by accident at any time while in the hotel engaged in reasonable acts such as dining in the restaurant and using washroom facilities. If the worker chooses to dine in a restaurant other than in the hotel but within a reasonable distance of it, coverage is extended during this activity. There is no entitlement if the worker is injured while visiting a movie theatre or cocktail lounge or engaging in some other personal activity.

Responding to an emergency callWorkers travelling to answer an emergency call from the employer, requiring immediate action on the worker’s part, are in the course of their employment.

Coverage starts from the time the telephone call is received, and while travelling by reasonable and direct route to the employer’s premises or work site from the time and point of departure.

Coverage also applies on the return trip to the worker’s own property or the point of departure.

Off-duty police officersOff-duty police officers are in the course of their employment while carrying out police duties for and paid by organizations other than the police commission, such as directing traffic at shopping malls when:

• the request is assigned by a senior officer in a local police station, from the extra duty list available and posted in the station, and

• the police officer accepting extra duty, reports to and parades for inspection before and after extra duty, if required, by the local police department or commission.

Travelling to and from courtPolice officers are considered to be in the course of employment when:



• travelling from their home to a court in another town or city, by the most direct and uninterrupted route

• required to pick up items from the police station, property bureau or drug repository, for the period travelling to and from the court house in a direct and uninterrupted route

• on court house property• travelling to and from the court house from their home, and• travelling from home to the police station, property bureau or drug repository and

similarly, for the return trip home, after the court appearance and returning the evidence.

Application dateThis policy applies to all decisions made on or after June 1, 1989, for all accidents.

Document historyThis document replaces 03-02-03 dated June 1989.

ReferencesLegislative authorityWorkplace Safety and Insurance Act, 1997, as amendedSection 13(1)Workers’ Compensation Act, R.S.O. 1990, as amendedSection 4(1)

MinuteBoard of Directors#8 (XXXVI), June 10, 2004, Page 6622



WSIB Ontario Bulletin: Personal Activities/Removing Self From Employment

Claims

Application DateThis policy applies to all decisions made on or after June 1, 1989, for all accidents.


Subject In the Course of and Arising Out of

Title Personal Activities/Removing Self From Employment


PolicyAn accident shall be considered to occur in the course of the employment when it happens on the employer’s premises as defined, unless at the time of the happening of the accident the worker is performing an act not incidental to the work or employment obligations.

GuidelinesCompensation benefits are not payable to a worker who is voluntarily out of the course of the employment. Such situations may include

• doing something outside the worker’s normal duties, such as transacting personal business, or

• going places having nothing to do with the worker’s employment or doing something not reasonably expected of the worker.

Application dateThis policy applies to all decisions made on or after June 1, 1989, for all accidents.

Document historyThis document replaces 03-02-06 dated June 1989.

APPENDIX • WSIB ONTARIO - PERSONAL ACTIVITIES/REMOVING SELF FROM EMPLOYMENT


ReferencesLegislative authorityWorkplace Safety and Insurance Act, 1997, as amendedSections 2(1), 13(1)Workers’ Compensation Act, R.S.O. 1990, as amendedSections 1(1), 4(1)

MinuteAdministrative#5, June 28, 2004, Page 382

APPENDIX • WSIB ONTARIO - PERSONAL ACTIVITIES/REMOVING SELF FROM EMPLOYMENT

McCague Borlack LLP | www.mccagueborlack.com | T: 416.860.0001 | F: 416.860.0003 130 King Street West | Suite 2700, P.O. Box 136 | The Exchange Tower| Toronto, ON M5X 1C7

MCCAGUE BORLACK LLP - TRANSPORTATION LAW LUNCH & LEARN 23October 18, 2012

Our law firm’s Transportation Law Group has extensive experience with the broad range of legal issues that face the transportation sector in today’s litigation-happy world. Our goal is to provide cost effective, results-oriented defence of motor vehicle tort claims and accident benefits disputes. We also provide complete coverage analysis and full service risk management advice.

As a leader in its field, our Transportation Law Group plays an important role in matters of significance to the insurance industry. Senior members have assisted the government to draft legislation regarding the “no fault” automobile insurance regime and the “threshold” requirement in motor vehicle claims. We have also acted for the insurance industry in a number of high-profile class actions, including the “salvage litigation” case and the “after-market parts” case.

TRANSPORTATION LAW

Services LitigationWe regularly assist clients in the following transportation areas:

• Motor Vehicle

• Rail (Primary and Excess Insurance)

• Inland/Dry Marine

Our lawyers frequently act for municipalities in connection with their duty to maintain roads, and their use of vehicles and equipment such as graders, sanders, stone slingers, and snow ploughs. We also act for road repair professionals, including engineers and contractors retained by municipalities or the Province.

Many of our files involve catastrophic personal injury claims, fatalities, and significant property damage claims. The Transportation Law Group understands the importance of quick action in a catastrophic loss. To this end, we maintain a 24-hour emergency response team to attend at the scene of any catastrophic loss to secure witness statements and photographs, marshal the evidence, and arrange for immediate accident reconstruction by one of our experts.

Chairs

Tracy Brooks [email protected]

Van Krkachovski [email protected]

James Tomlinson [email protected]

Members of the Group

John BianchiMichael BlinickLilia BogomilskyTracy BrooksLisa ChernsPrevain R. DevendranAlan DrimerMichelle O.P. DunbarSheldon ErentzenAshley FaustTheresa HartleyElizabeth IwataMaya JacobMichael KennedyVan KrkachovskiLisa La HoreySabrina LucibelloYu MaiMark MasonPaul McCagueMegan MutchesonMarie-Pier NadeauAdrian NicoliniJason RabinMeredith RadyAshley ReidBruno RotiSamantha ShareRachel SommersRuby TatlaNicole D. TellierPaula ThomasJames TomlinsonSarah E. ValairStefanie Vescio

• long-haul trucking• automobiles and recreational vehicles• corporate/commercial/agricultural fleets

• rental and leasing companies• dealerships and couriers• personal lines

24 October 18 2012


MCCAGUE BORLACK LLP - TRANSPORTATION LAW LUNCH & LEARN

TRANSPORTATION LAW cont’d...

Recent Publications • UPDATE: Downer v. Personal Insurance by Michael Kennedy, MB Transportation Newsletter, May 11, 2012 • FSCO Counsel Meeting Summary: How to address the mediation backlog by Jocelyn Tatebe, Part of MB Transportation

Newsletter, April 10, 2012• “Bad faith” is not a claim governed by the insurance contract by Michael Kennedy, MB Transportation Newsletter, March

26, 2012• Accessibility for Ontarians with Disabilities Act: How to Comply with the Customer Services Standard by Lia Preyde,

Harmonie Group, March 01, 2012• Case Study - Kusnierz v. Economical - Decision from the Court of Appeal by Michael Blinick, Transportation Newsletter,

January 07, 2012 • Insurance coverage for injuries caused by at-fault uninsured, inadequately insured and unidentified motorists by Jason

Rabin, MB Transportation Law Seminar, November 10, 2011• Recent commentaries on the deductibility of collateral benefits in income loss claims by Ashley Reid, MB Transportation

Practice Group Seminar, November 10, 2011• Videotaping Defence Medical Examinations: An Overview of the Case Law by Alan Drimer, Yu Mai, MB Transporation

Practice Group Seminar, November 10, 2011• A year, if a day: What insurers are talking about one year after the introduction of the “New Regs” by Tracy Brooks, MB

Transportation Practice Group Seminar, November 10, 2011• The use of no-fault reports by a tort defendant: Beasley revisited, one year later by James Tomlinson, Adrian Nicolini, MB

Transportation Practice Group Seminar, November 10, 2011• Recent Developments in Loss Transfer by Craig Edwards, Meredith Rady, MB Transportation Practice Group Seminar,

November 10, 2011• Should Psychological Injuries Be Combined With Physical Injuries To Determine Catastrophic Impairment? by Michael

Blinick, MB Transportation Practice Group Seminar, November 10, 2011• Liability of Vehicle Owners: The Ontario Superior Court of Justice’s Decision in Case v. Coseco Insurance Co. by Lisa

Chuyow, MB Transportation Practice Group Seminar, November 10, 2011

We also assist our clients in the following matters that can arise in a transportation context:

Risk ManagementOur Transportation Law Group also provides risk management services to industry clients, including:

• drafting and interpreting insurance policies• drafting and interpreting bills of lading, lease agreements, and other transportation contracts• assisting and advising on claims that are in excess of insurance limits• coordinating claims between insurer and insured where there is a significant deductible or self-insured retention

• Environmental claims• Warehouse claims• Cargo claims• Subrogation

• Coverage issues• Excess, umbrella, and reinsurance disputes• Breach of contract disputes


25October 18, 2012 MCCAGUE BORLACK LLP - TRANSPORTATION LAW LUNCH & LEARN

Members of our Accident Benefits Group defend a large volume of accident benefits claims, and frequently act on mediations, arbitrations, trials, and appeals, on such issues as:

• Loss transfer;• Priority disputes between insurers; and• Work-related injuries.

Our Accident Benefits Group also regularly attends the following:

• Counsel Forum at the Financial Services Commission; and• Hearings before the Workplace Safety and Insurance Appeals Tribunal.

We advise clients on a regular basis on all matters relating to accident benefits, and our trial experience is rich and varied. Our Accident Benefits Group strives to maximize the results for our clients, while minimizing the legal expense.

As part of Ontario’s no-fault automobile insurance regime, “accident benefits” are a complicated creation of statute that require a person’s own automobile insurance provider to compensate him or her for injuries suffered in a car accident.

Motor vehicle accidents continue to be the largest single source of claims filed in our courts today, and accident benefits claims regularly accompany them.

ACCIDENT BENEFITS Chairs

Elizabeth Iwata [email protected]

Van [email protected]

Members of the Group

John BianchiMichael BlinickTracy BrooksChris CheungPrevain R. DevendranAlan DrimerMichelle O.P. DunbarElizabeth IwataMichael KennedyVan KrkachovskiMary-Catherine LillCaroline LutesDr. Brian MurphyMegan MutchesonMarie-Pier NadeauJennifer ReidSamantha ShareJocelyn TatebeRuby TatlaStefanie Vescio

Services

Recent Publications • FSCO orders insurer to fund medicinal marijuana purchase by Michael Kennedy, Published in McCague Borlack’s Accident

Benefits Newsletter , October 02, 2012• A “catastrophic impairment” requires only one (out of four) functions at the marked impairment (class 4) level by Michael

Kennedy, Published in McCague Borlack’s Accident Benefits Newsletter, October 01, 2012• Gordyukova v. Certas Direct Insurance Company, 2012 ONCA 563 by Lisa Chuyow, MB’s AB Newsletter, September 14,

2012• Demers v. Monty, 2012 ONCA 384 by Lisa Chuyow, Published in MB’s AB Newsletter, July 04, 2012• FSCO Counsel Meeting May 25th: Current Issues by Jocelyn Tatebe, MB’s Accident Benefits Newsletter, June 15, 2012• UPDATE: Downer v. Personal Insurance by Michael Kennedy, MB Transportation Newsletter, May 11, 2012• Recent Decision: Case Summary: Aweys and Intact Insurance by Tracy Brooks, Published in MB’s Accident & Benefits

Newsletter, April 16, 2012• FSCO Counsel Meeting Summary: How to address the mediation backlog by Jocelyn Tatebe, Part of MB Transportation

Newsletter, April 10, 2012

130 King Street, WestSuite 2700, P.O. Box 136

The Exchange Tower Toronto, Ontario

M5X 1C7T: 416.860.0001F: 416.860.0003


McCague Borlack LLP is a member of the CANADIAN LITIGATION COUNSEL, a nationwide affiliation of independent law firms.

Through CLC’s association with THE HARMONIE GROUP & DAC BEACHCROFT LLP, our clients have access to legal excellence throughout North America, Mexico, the U.K. and Europe.


Profile

Maya joins the firm after having practiced as an In-House Counsel for one of Ontario’s top three insurers in cases involving motor vehicle accidents, accident benefit disputes, slip and fall accidents, municipal liability claims and homeowner’s liability claims.

Maya’s interests are in the areas of personal injury litigation, products liability, medical malpractice, health law, privacy and access to information, professional regulation and animal law. Maya enjoys the competitive storytelling part of lawyering by constructing the most persuasive narrative possible in any given case and thrives on extensive, direct client contact. With an excellent proficiency in Hebrew, Maya also offers her legal services in this language.

Maya currently serves on the Board of Directors for Springtide Resources Inc, a charity working towards ending violence against women and their children. She is also a regular contributor to various healthcare newsletters and publications, and enjoys working out whenever she has the opportunity.

Education • Bachelor of Arts, Honours, York University – 2000• Bachelor of Laws, Osgoode Hall Law School – 2005• Certificate in Health Law, Osgoode Professional Development - current

Publications and Speeches • The New Era of Auto Insurance Fraud - Identity Theft and the Health Care

Practitioner by Maya Jacob, OBA, Health Matters, Health Law Section, April 01, 2012

• A Challenge to Anonymity for Donor Offspring by Maya Jacob, Risk Management in Canadian Health Care, Vol 14, No. 2, April 01, 2012

Professional and Business Affiliations • Law Society of Upper Canada• Ontario Bar Association

Associate LawyerBar Admission: 2006

Practice Areas

• Animal Law• Class Actions• Malpractice & Health Care Litigation

• Personal Injury• Products Liability• Professional Liability• Property Insurance• Subrogation• Transportation Law

Maya [email protected]



M5X 1C7T: 416.860.0001F: 416.860.0003





Profile

Anthony Mancuso joined McCague Borlack LLP in 2012 and practices in the area of general litigation on behalf of insurers. He is a determined advocate and has had much success on behalf of his clients in the Ontario Superior Court of Justice. His work is focused in the areas of tort motor vehicle claims, property claims (Water and Fire Loss), product liability and occupiers’ liability.

Education • Windsor University, LL.B. - 2002• Brock University, Politics & International Studies - 1999

Professional and Business Affiliations • Law Society of Upper Canada• Canadian Bar Association• Toronto Lawyers’ Association• Canadian Defence Lawyers• Ontario Bar Association• The Advocates’ Society


Practice Areas

• Insurance Coverage• Personal Injury• Property Insurance

Anthony [email protected]



M5X 1C7T: 416.860.0001F: 416.860.0003





Profile

Tobin developed his interest in litigation and advocacy while articling and working at a prominent insurance litigation boutique in downtown Toronto. Tobin concentrates his practice on insurance defense litigation with a primary focus in the areas of motor vehicle tort, occupiers’ liability and property damage.

Tobin joined McCague Borlack LLP as an Associate Lawyer in 2012, bringing with him significant practical experience in appearing before the Ontario Superior Court of Justice and the Financial Services Commission of Ontario.

The development of a client-oriented focus is the cornerstone of Tobin’s practice. His friendly personality and positive attitude promote an easy-going work atmosphere and help build strong client relationships.

In his spare time, Tobin enjoys traveling and has an active interest in physical fitness and sports, particularly football which he officiates at the Canadian Interuniversity Sport (CIS) level. Having lived in Blacksburg, Virginia when he was younger, Tobin remains an avid fan of the Virginia Tech Hokies.

Education • Bachelor of Arts, Carleton University – 2006• LL.B, University of Ottawa - 2009

Professional and Business Affiliations • Law Society of Upper Canada• OntarioBar Association• Medico-Legal Society of Toronto• The Advocates’ Society


Practice Areas

• Insurance Coverage• Personal Injury• Products Liability• Property Insurance• Sports, Recreation & Resort Liability

• Subrogation

Tobin [email protected]



M5X 1C7T: 416.860.0001F: 416.860.0003





Profile

Marie-Pier is driven by ambition and always striving to push herself further. It was this drive which lead her to pass the bar in two provinces. Although her focus is in insurance defence and civil litigation, her curiosity and thirst for knowledge has her constantly seeking new challenges in various fields of law.

Prior to joining McCague Borlack LLP in 2012, Marie-Pier practiced as a litigation counsel in Quebec City for approximately four years where she gained valuable experience in civil law. She moved to Toronto to broaden her horizons and while she does miss snowboarding, she is enjoying the milder weather of Toronto. Being completely bilingual, Marie-Pier offers her legal services in both English and French.

During her free time, Marie-Pier enjoys in-line skating, acrylic painting and tries to fulfill her passion for travel. She was an avid hockey fan until the Nordiques deserted Quebec City, and now she would not entertain the thought of moving back unless a NHL franchise returns.

Education • B.C.L, Dalhousie University – 2011• LL.B, Laval University – 2006

Professional and Business Affiliations • Law Society of Upper Canada• Quebec Bar Association


Practice Areas

• Accident Benefits• Environmental Liability• Health, Life & Disability Insurance

• Human Rights, Harassment & Abuse

• Insurance Coverage• Municipal Liability• Personal Injury• Products Liability• Professional Liability• Property Insurance• Sports, Recreation & Resort Liability

• Subrogation• Transportation Law

Marie-Pier [email protected]



M5X 1C7T: 416.860.0001F: 416.860.0003





Profile

Sarah practices civil and commercial litigation in a wide range of areas. Sarah’s insurance defence practice includes professional liability, tavern liability, personal injury, property damage, product liability, insurance coverage and environmental liability.

Sarah has appeared before the Ontario Superior Court of Justice, the Federal Court of Canada, the Human Rights Commission, and the Workplace and Safety Insurance Appeals Tribunal. She also has trial, appellate, arbitration and mediation experience.

Education Sarah graduated from the University of British Columbia in 1998 with a Bachelor of Arts (Honours) in Classical Studies and History. She subsequently graduated from Osgoode Hall Law School with her Bachelor of Laws in 2002.

Sarah was the recipient of the Ladner Downs Scholarship and the Student Achievement Award. For her articling year, Sarah clerked at the Ontario Superior Court of Justice working with many judges including the Chief Justice.

Professional and Business Affiliations Sarah was called to the Ontario Bar in 2003, and is a member of the Canadian Bar Association, the Ontario Bar Association, and the Advocates’ Society.


Practice Areas

• Appeals• Bankruptcy and Insolvency Litigation

• Commercial & Business Litigation

• Construction Law• Defamation & Reputation Management

• Directors & Officers Liability• Environmental Liability• General Casualty & Special Risks

• Health, Life & Disability Insurance

• Insurance Coverage• Malpractice & Health Care Litigation

• Mediation, Arbitration & ADR• Not For Profit and Charity• Personal Injury• Police Services• Products Liability• Professional Liability• Property Insurance• Subrogation• Transportation Law

Sarah E. [email protected]



M5X 1C7T: 416.860.0001F: 416.860.0003





Profile

Michael joined the firm in 2010. He practices civil litigation with an emphasis on insurance defence, personal injury and corporate litigation. Michael formerly worked as a litigation associate at a Toronto firm, specializing in corporate and commercial litigation.

Prior to law school, Michael was the lead kinesiologist at a physiotherapy clinic where he was responsible for creating and implementing treatment plans for injured persons.

Education Michael obtained his Bachelor of Kinesiology (Honours) from McMaster University in 2004. In 2008, he obtained his Doctor of Law degree from Queen’s University.

Publications and Speeches • Case Study - Kusnierz v. Economical - Decision from the Court of Appeal by

Michael Blinick, Transportation Newsletter, January 07, 2012• Should Psychological Injuries Be Combined With Physical Injuries To

Determine Catastrophic Impairment? by Michael Blinick, MB Transportation Practice Group Seminar, November 10, 2011


Practice Areas

• Commercial & Business Litigation

• Personal Injury• Products Liability• Transportation Law

Michael [email protected]

transportation law lunch & learn - mccague...

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