In an important decision (PDF) by the Workplace Safety & Insurance Appeals Tribunal ("WSIAT"), bicycle and foot couriers have been held to be workers under the Workplace Safety & Insurance Act. This finding gives those individuals coverage for workers' compensation benefits.
The case arose on a Section 31 Application, arising from a bicycle/motor vehicle accident in downtown Toronto. The courier was hit by a truck when riding his bicycle. Both the truck driver and the bicycle courier were in the course of their employment at the time of the accident.
The central issue in the WSIAT hearing was whether or not the bicycle courier was a worker or an independent contractor at the time of the accident. The Vice-Chair of WSIAT held that the usual worker/independent contractor criteria review and analysis was not required in view of the formal Workplace Safety and Insurance Board (WSIB) policy for determining operator status.
The WSIAT relied upon the WSIB policy that couriers who collect or deliver on foot or by bicycles are considered workers and should not be required to complete the normal Independent Operator Questionnaire. This would result in benefits being available under the WSIB system, and provide a complete bar to a civil lawsuit. In other words, although persons injured in a motor vehicle accident are normally entitled to elect to sue a negligent party, they are not allowed to sue when both parties involved are covered by the Workplace Safety & Insurance Act and the injuries arise in the course of their employment.
While this decision will be welcomed by the automobile insurance industry, it is one that employers must be aware of when they are involved in a courier business or have any of their workers engaged in a motor vehicle or other accident with a courier. Further, if couriers act recklessly and have caused or materially contributed to their accident, they will still be entitled to benefits under the Workers' Compensation "No Fault" system in Ontario.