Mr. Gjorseski was a hard working carpet installer. His life came to a sad and abrupt end after a long day of work at a condominium construction site. While exiting the hoist, a section of metal safety fence fell from the 28th floor and struck him. He was killed instantly. His family commenced a civil action against a number of parties, including the window supplier, for damages arising from his death. MMW represented the window supplier and brought a right to sue application before the Workplace Safety and Insurance Tribunal (“WSIAT”). MMW sought a ruling that the action was statute barred because Mr. Gjorseski was a worker at the time of the accident and the window supplier was an employer covered by the Workplace Safety and Insurance Act (“WSIA”). In Decision No. 2483/12, the WSIAT allowed the application and found that the action was statute barred.
The WSIAT came to this conclusion through a thorough consideration of the Workplace Safety and Insurance Board’s policy and guidelines on whether an individual is a “worker” or an “independent contractor”. In this case, Mr. Gjorsesksi had worked as carpet-layer exclusively for Quality Rugs for many years. Quality Rugs did not pay its installers by the hour, but rather, by how much carpet they laid. Two rates were offered to installers: a higher rate, where the installer paid his own WSIB premium, and a lower rate where Quality Rugs paid the premium. Mr. Gjorseski had always received the lower pay rate, because Quality Rigs had always paid his premium. However, family members testified that Mr. Gjorseski always considered himself an independent contractor and that he did not think he had WSIB coverage. As well, the wording of the contract between Quality Rugs and Mr. Gjorseski stipulated that Mr. Gjorseski was an independent contractor, and not an employee of Quality Rugs.
Despite this evidence, the WSIAT found that Quality Rugs exercised a sufficient degree of control over Mr. Gjorseksi, such that he was a “worker” of Quality Rugs within the meaning of the WSIA, and not an independent operator. The WSIAT held that it was important to look beyond the contractual wording to the actual manner in which the two parties worked together. The exclusive nature of the relationship between the parties, and Quality Rugs’s reporting of the accident to the Board all supported the finding that this was really an employment relationship. And since Mr. Gjorseski was a worker who was within the course of his employment when he was killed, his family was not permitted to sue the window supplier for damages.
This case serves as a further reminder that is important to look beyond language and titles, and to examine the substance of the relationship between an injured person and his employer to determine whether the appropriate remedy is a lawsuit or a claim for benefits under the WSIA. For defendants who have been sued arising out of work-related accidents, this type of creative thinking can create a good defence.