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WCAT WCAT Decision Number: A1602619

DECISION OF THE WORKERS' COMPENSATION APPEAL TRIBUNAL

WCAT DECISION DATE:

WCAT DECISION NUMBER:

WCAT PANEL:

August 07, 2018

A1602619

Guy Riecken

RE: Chase Atkey v. Trevor Magee, Howe Sound Brewing Company Ltd, andJim Pattison Industries Ltd.Vancouver Registry No. M-154571Section 257 DeterminationWCAT No. A1602619

Applicant: Chase Atkey(the "plaintiff')

Respondents: Trevor Magee(the "defendant")

Howe Sound Brewing Company Ltd.(the "defendant")

Jim Pattison Industries Ltd.(the "defendant")

Interested Persons: Apex Western Homes Ltd.

1032151 B.C. Ltd.dba R & B Brewing Co. Ltd.

Workers' Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 361Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898


Representatives:

For Applicant:

For Respondents:

For Interested Persons:

• Apex Western Homes Ltd.

• 1032151 B.C. Ltd.dba R & B Brewing Co. Ltd.

Timothy H. PettitPettit and Company

Rebecca K. BuchananHarris & Brun

Raymond Vesely, President

Rebecca K. BuchananHarris & Brun

Workers' Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898

In


Claims Manual, Volume II (RSCM II). Unless otherwise indicated, the policies referredto in this decision are those in effect at the date of the accident.

Section 254(c) of the Act provides that WCAT has exclusive jurisdiction to inquire into,hear, and determine all those matters and questions of fact, law, and discretion arisingor required to be determined under Part 4 of the Act, including all matters that WCAT isrequested to determine under section 257. The WCAT decision is final and conclusiveand is not open to question or review in any court (section 255(1)).

[8] The court determines the effect of the certificate on the legal action.

[9] The plaintiff commenced an action against the Insurance Corporation ofBritish Columbia (ICBC) with respect to benefits under Part 7 of the Insurance (Vehicle)Act Regulation (Part 7 action). WCAT has not received a section 257 application inrelation to the Part 7 action.

[10] WCAT invited ICBC to participate as an interested person in the section 257 applicationrespecting the civil action, but ICBC chose not to participate.

[11] WCAT invited the company identified as the plaintiff's employer, Apex WesternHomes Ltd. (Apex), to participate as an interested person, and it is participating.

[12] A number of entities have been identified as Mr. Magee's potential employer(s) atthe time of the accident. One of these entities, Howe Sound Brewing Company Ltd.(HSBC) is a named party in the action. WCAT invited 1032151 B.C. Ltd. dba R & BBrewing Co. Ltd. to participate as an interested person, and it is participating. WCATalso invited 0504268 B.C. Ltd. (formerly R & B Brewing Incorporated) to participate asan interested person, but it is not participating.

[13] The plaintiff commenced a claim with the Board with respect to injuries sustained in theaccident. Certain evidence from his claim file was disclosed to the parties to the legalaction. I will consider that evidence anew for the purposes of this application, and anyprior Board decisions are not binding on me.

[14] The legal counsel representing the plaintiff and the defendant Mr. Magee each providedwritten evidence and submissions. Although Apex and 1032151 B.C. Ltd. dbaR & B Brewing Co. Ltd. are participating in the application as interested persons, theydid not provide written submissions.

[15] None of the parties requested an oral hearing. The requested status determinationsinvolve largely undisputed facts and matters of law and policy. To the extent that thereare disputed facts, I am able to resolve them based on the written evidence andsubmissions. Accordingly, the application is being decided on the basis of writtenevidence and submissions.

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Background and Evidence

Documents Received by WCAT

[16] WCAT received a number of documents related to the application. The plaintiff providedthe following documents to WCAT:

• A copy of the transcript of the examination for discovery (EFD) of Chase Atkey, heldon July 26, 2017;

• The affidavit of Chase Atkey, sworn August 21, 2017;

• The affidavit of Rosalie Atkey (the plaintiff's wife), sworn August 21, 2017;• The affidavit of Raymond Vesely (chief executive officer of Apex), sworn August 21,

2017;

• The affidavit of David Sayle (general contractor with Apex), sworn August 21, 2017;and,

• The affidavit of Kelly McNab (a paralegal with the law firm representing the plaintiff),sworn August 24, 2017.

[17] Counsel for Mr. Magee provided the following documents to WCAT:

• A copy of the plaintiff's ICBC insurance claim application form dated March 11, 2015(exhibit 1 at the EFD of the plaintiff);

• A copy of the plaintiff's time sheet for hours worked from February 28 to March 6,2015 (exhibit 2 at the EFD);

• A copy of the plaintiff's income tax return for 2013 (exhibit 3 at the EFD);

• A copy of the plaintiff's income tax return for 2014 (exhibit 4 at the EFD);

• A copy of the plaintiff's Statement of Contract Payments (T5018) for each of theperiods ending July 31, 2013; July 29, 2014; and July 31, 2015 (exhibit 5 at theEFD);

• Photographs of the March 6, 2015 accident site and vehicles (exhibit 6 at the EFD);

• Printout of an ICBC "Snapshot: Loss Details" respecting the March 6, 2015 accident(exhibit 7 at the EFD);

• Printout of notes of an ICBC agent respecting a conversation with the plaintiff(exhibit 8 at the EFD);

• Printout of notes of an ICBC agent respecting a further conversation with the plaintiff(exhibit 9 at the EFD);

• A photograph of the vehicle driven by Mr. Magee, showing the Howe Sound Brewinginsignia displayed on the vehicle;

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• A printout of a page from the Internet website of R & B Brewing, identifyingMr. Magee's position as one of the owners and a general manager, and identifyingmembers of the sales team, including Barry Benson and Lundy Dale (order desk);and,

• A copy of the cover and three pages from Mr. Magee's diary, includinghandwritten entries for appointments at 8:00 a.m. and 10:30 a.m. on March 6, 2015(8:00 "R & B — meet Barry"; and 10:30 "Dale —> NV")1.

[18] In response to inquiries from WCAT, the Board's Audit and Assessment Departmentprovided memoranda dated August 1 and December 29, 2017 and March 13, 2018,which included the following information from the Board's records:

• An account in the name of Howe Sound Brewing Company Ltd. dba Howe SoundInn and Brewing Company has been registered with the Board since June 10, 1996and was registered at the time of the March 6, 2015 accident;

• An account in the name of Apex Western Homes Ltd. has been registered with theBoard since September 1, 1999 and was registered at the time of the March 6, 2015accident;

• There is no record of registration in the name of Chase Atkey;

• Trevor Magee is a participant in two accounts registered with the Board, as ashareholder of 1005466 B.C. Ltd. and as a shareholder of 0898133 B.C. Ltd., both ofwhich accounts were registered at the time of the March 6, 2015 accident;

• An account in the name of 1032151 B.C. Ltd. dba R and B Brewing was registeredwith the Board on April 1, 2015 and was not registered at the time of the March 6,2015 accident;

• An account in the name of R & B Brewing Incorporated was registered with theBoard from August 5, 1997 to August 14, 2015, and effective August 14, 2015 thisfirm underwent a name change to 0504268 B.C. Ltd.

[19] I will address the information in the various documents as needed in my reasons.

General Background

[20] At the time of the accident the plaintiff worked for Apex, a new home builder, as acarpenter. Apex and the plaintiff considered the plaintiff, who was paid an hourly wage,to be a subcontractor. He submitted invoices for his hours worked, and looked after hisown remittances to the Canada Revenue Agency for income tax and other deductions.The parties disagree about whether he was a worker within the meaning of the Act (anemployee of Apex) or operated as an independent business.

1 All quotes reproduced as written, unless indicated otherwise.

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[21] The plaintiff's duties as a carpenter included construction framing, roof framing,concrete forming, window installation, and siding installation.

[22] The plaintiff lived on 14th Street East, North Vancouver. In the days leading up to theaccident he was working on the completion of a house being built by Apex onWest 22nd Street, North Vancouver.

[23] The plaintiff and a friend co-owned a boat which Apex had allowed the plaintiff to storeat Apex's works yard in North Vancouver. Raymond Vesely, a principal of Apex, hadtold the plaintiff that he needed to move the boat out of that location, and offered him anempty lot on Oxford Street in East Vancouver, which was owned by Mr. Vesely, as analternative location to store the boat.

[24] The plaintiff has stated that on the morning of the accident he drove from his residencein North Vancouver to have a look at the empty lot on Oxford Street in East Vancouver.He drove a 2014 Dodge Ram pick-up truck. His wife was the registered owner of thetruck and he was listed as the principal operator. His plan was that after viewing theempty lot, if it was a good place to store the boat he would go and get the boat and towit to the lot using the pick-up truck. He had to return the pick-up truck to his wife laterthat morning because she needed to use it to take one of their children to pre-schooland to do some personal errands. The worker has stated that he intended to go to workthat day, but did not need to get an early start because the project at West 22nd Street inNorth Vancouver was winding down.

[25] After viewing the empty lot and determining that it was not a secure enough location tostore the boat, the plaintiff had "some time to kill" before driving back toNorth Vancouver to return the truck to his wife, and decided "on a whim" to do his bossa favour by picking up a box of manufactured stones (called cornerstones or cornercapstones) from a supplier a few minutes' drive away from the empty lot. The accidentoccurred while the plaintiff was returning to North Vancouver carrying the 2 feet by8 inches by 21 inches box of cornerstones in the back of the pick-up truck.

[26] The accident occurred while the plaintiff was stopped northbound on theCassiar Connector waiting to merge onto Highway 1 to continue over the Iron WorkersMemorial Bridge. The plaintiff's truck was rear-ended by the Ford F150 pick-up truckdriven by Mr. Magee.

[27] Mr. Magee is a general manager of HSBC, which is located in Squamish. His work forHSBC includes managing the sales representatives. The Ford F150, of which HSBC isan owner, was equipped with Bluetooth technology, so Mr. Magee could operate hismobile phone. The insignia of HSBC is displayed on the outside of the vehicle. HSBCoperates, among other things, a restaurant (the Devil's Elbow) located on Beatty Streetin Vancouver. Mr. Magee's work for HSBC sometimes takes him to the Devil's Elbow.

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[28] In addition to his role as vice-president and general manager of HSBC, Mr. Mageestates that he is one of the owners and the general manager of R & B Brewing. On themorning of the accident Mr. Magee had driven the HSBC truck from Squamish to attenda meeting with Barry Benson at 54 East 4th Avenue in Vancouver (the location ofR & B Brewing Ale and Pizza House). Barry Benson is an R & B Brewing area salesrepresentative. After that meeting Mr. Magee planned to drive to North Vancouver for ameeting with Lundy Dale, the R & B Brewing order desk operator. Mr. Magee's plannedroute to the meeting with Lundy Dale would have taken him over the Iron WorkersMemorial Bridge. The accident occurred during that journey.

Status of the Plaintiff, Chase Atkey

Whether the plaintiff was a worker

[29] The plaintiff's position is that he existed as a business enterprise separately andindependently of Apex, for whom he performed work as a subcontractor and not as anemployee. Accordingly, he submits that he was not a worker at the time of accident.

[30] The defendant's position is that the plaintiff was an employee of Apex, and a workerwithin the meaning of the Act.

[31] Section 1 of the Act includes the following definitions:

"employer" includes every person having in their service under a contractof hiring or apprenticeship, written or oral, express or implied, a personengaged in work in or about an industry;

"worker" includes(a) a person who has entered into or works under a contract of serviceor apprenticeship, written or oral, express or implied, whether by wayof manual labour or otherwise; ...

[32] RSCM II policy item #6.10, "Nature of Employment Relationship," provides that, where aperson contracts with another to provide labour in an industry covered by the Act, theBoard considers that the contract may create one of three types of relationship in whichthe person doing the work may be an independent firm, a labour contractor, or a worker.The policies in the Board's Assessment Manual, including policy item #AP1-1-1,"Coverage under Act — Description of Terms," provide detailed provisions with respectto those categories.

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[33] The Assessment Manual at policy item #AP1-1-3, "Coverage under Act — DistinguishingBetween Employment Relationships and Relationships Between Independent Firms,"sets out nine general principles and one major test for determining whether a contract toperform work creates an employment relationship or a relationship betweenindependent firms.

[34] The major test, which largely encompasses the nine factors, is whether the individualdoing the work exists as a business enterprise independently of the person or entity forwhom the work is done.

[35] In their submissions each of the parties has referred to the factors in policyitem #AP1-1-3, as well as other policies in the Assessment Manual. I have consideredtheir submissions, and without summarizing all of the details of parties' arguments, I willaddress them below in discussing the relevant policy criteria.

Whether the services to be performed by the plaintiff are essentially services of labour

[36] The plaintiff does not appear to disagree with the defendant's characterization of theplaintiff's services as services of labour. Based on the plaintiff's description of his jobduties, such as framing, concrete forming, siding installation, and window installation, Iconclude that he was providing services of labour to Apex.

The degree of control exercised over the plaintiff by Apex

[37] The plaintiff submits that he exercised a great deal of control over his own workbecause he was able to set his own days and hours of work, including whether heworked over 40 hours per week and on weekends. He was able to take time off at will.He could request more hours of work or work at different work sites. The plaintiff statesin his affidavit that he would have sought out additional work, including side contracts ifthe hours or income from Apex had been insufficient, but that was not necessarybecause he got enough work from Apex. The plaintiff submits that the control heexercised over his work shows that he worked as an independent subcontractor and notas a worker of Apex.

[38] The defendant points to the plaintiff's evidence that he worked on particular projects asdirected by Apex's owner and its general contractors. Apex controlled the materials thatthe plaintiff used to carry out his work and identified what tasks he was to complete onthe projects to which he was assigned. Apex (through its general contractors) organizedthe attendance of the various trades at the project sites, and arranged for the site visitsby building inspectors. The plaintiff testified that he generally worked what heconsidered to be "regular construction hours" from 8:00 a.m. to 4:30 p.m. Mondaythrough Friday. The defendant submits that the degree of control exerted by Apexsupports an employment relationship.

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[39] While I acknowledge that the plaintiff had some control over his work, the controlexercised by Apex was greater. Based on the evidence that has been provided I viewthe plaintiff's control over the work concerned mainly the hours that he worked. Theplaintiff was not required to "clock" in and out at specified times, but only had to recordin the time sheets provided by Apex the hours he worked on various activities at thedifferent projects and submit them to Apex in order to be paid for his time. He could askfor more hours and for hours on other Apex projects. It was up to him when he took alunch break and if he took one at all. The impression given by the plaintiff's descriptionof his work is that it was oriented toward the completion of tasks assigned by Apexrather than putting in a set number of hours. Nonetheless, he worked fairly regular, butsomewhat variable, hours in a Monday to Friday pattern.

[40] The plaintiff generally worked at the projects to which he was assigned by Apex. Whilehe could turn down an assignment, or request to work on a different project, this wasnot the general pattern of his work. In addition, while he might in the course of a projectidentify, on his own, tasks that he needed to complete, generally he was given lists oftasks to complete by the general contractor on a project, and he worked at completingthe tasks in those lists.

[41] Considering the evidence as a whole, I do not find the degree of control that the plaintiffexercised over his work to be sufficient to reflect the provision of his services as anindependent subcontractor. The degree of control exercised by Apex was moreconsistent with an employment relationship.

Whether the plaintiff might make a profit or loss

[42] The plaintiff testified that his compensation from Apex was purely based on a rate of$25.00 per hour. He did not bid on contracts to provide services to Apex at other ratesof compensation or other contract amounts such as with a fixed fee contract. He did notreceive bonuses based on performance or based on the amount of profit Apex made ona project. He was never paid less than $25.00 per hour if a project was less profitablefor Apex. The plaintiff stated that he owned no shares in Apex and had not made anyinvestment in Apex. He did not stand to profit or sustain a loss through the provision ofsupplies or materials to the various projects.

[43] I conclude that the plaintiff did not stand to make a profit or sustain a loss from theprovision of his services to Apex, and that this is not consistent with the provision of hisservices as an independent business.

Whether the plaintiff provided the major equipment

[44] The evidence does not indicate that either the plaintiff or Apex supplied major revenueproducing equipment (such as excavators, et cetera). The plaintiff and Apex bothsupplied some hand tools, and Apex provided larger tools.

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•WCAT WCAT Decision Number: A1602619

[45] The plaintiff relies on the fact that he supplied some of his own tools that he used in hiswork, such as his hammer, tool belt, speed square, and tape measure. Apex and itsgeneral contractors supplied other equipment such as air compressors, pneumaticguns, Skil saws, large drills, staplers, calking guns, levels, extension cords, mitre saws,table saws, shovels, rakes, and mixing paddles. Both the plaintiff's hand tools and theequipment supplied by Apex and the general contractors were usually stored at night onsite in a trailer that was provided by Apex or a general contractor.

[46] The use of personal hand tools such as hammers and tape measures in theconstruction trades are not generally considered to amount to the provision of majorequipment. The fact that, aside from such personal hand tools, the major equipmentused in the projects was provided either by Apex or the general contractors does notsupport the plaintiff's position that he operated as an independent business.

If the business enterprise is subject to regulatory licensing, who is the licensee

[47] As stated by the plaintiff in his affidavit, he held a business licence to operate as a soleproprietor and had a Goods and Services Tax (GST) registration number. He did nothave any workers and was not registered with the Board.

[48] While Apex was responsible for obtaining building permits and arranging for regulatoryinspections for their projects as a whole, I tend to agree with the plaintiff that thosesteps are not indicative of the plaintiff's status. Subcontractors who operate asindependent businesses may work on construction projects without being responsiblefor building permits or arranging for the scheduling of inspections, which often would bearranged for by the project owner or a general contractor. I view the fact that Apex andits general contractors were responsible for arranging building permits and inspectionsto be a neutral factor.

[49] However, the plaintiff's business licence and his registration as a sole proprietor forremitting his GST payments does not really speak to his compliance with regulatoryrequirements associated with the construction projects he worked on. His businesslicence and his GST registration are some evidence of his intention to arrange hisaffairs so as to provide his services as an independent business, rather than as anemployee. I find that this weighs somewhat in favour of independent business status.

Whether the terms of the contract are normal or expected for a contract betweenindependent contractors

[50] The terms of the contract between Apex and the plaintiff have some features to beexpected in an arrangement between independent contractors, such as the plaintiffmaking his own income tax and other remittances to the Canada Revenue Agency andhis receiving from Apex a T5018 Statement of Contract Payments, instead of a

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T4 Statement of Remuneration Paid. In addition, the plaintiff was not paid statutoryovertime if he worked more than 40 hours per week. He was paid straight time ($25.00per hour) for all the hours he worked. Nor did Apex pay him vacation time.

[51] However, as noted by the defendant, when the plaintiff was asked whether, at the timehe was hired, he was given the option of being employed on payroll or working as asubcontractor, he testified that he was given no choice. He was only offered work on asubcontract basis and, it appears, on the terms set by Apex. While the plaintiff chose toaccept those terms, I do not view the terms to have been the result of any negotiation orbidding process that would reflect a relationship between independent businesses.

[52] In the circumstances, I find that the terms of the contract between Apex and the plaintiffto be relatively neutral with respect to determining the plaintiff's status.

Who is best able to fulfill the prevention and other obligations of an employer underthe Act

[53] The plaintiff testified that Apex was responsible for providing personal protectiveequipment and first aid at the job sites and for advising about any hazards of the worksites. The plaintiff was aware of the need to wear personal fall protection when workingat heights, and that this was provided by Apex or the general contractors. He was awarethat if he sustained an injury at a work site he was to report it to a first aid attendant, andthat the first aid attendant was supplied by Apex.

[54] Unlike the plaintiff, Apex was registered with the Board and was therefore in a betterpositon to be informed of the occupational health and safety obligations at the job sites.Moreover, as a company with a number of projects each year that it controlled andnumerous individuals providing services (either as subcontractors or employees), Apexwas better able than the plaintiff to fulfill the occupational health and safety obligationsof an employer under the Act. This is consistent with an employment relationshipbetween Apex and the plaintiff.

Whether the plaintiff engaged continually and indefinitely for Apex or workedintermittently and for different persons

[55] The plaintiff has emphasized that, if Apex had not been providing him with enough workto maintain a sufficient income, he was free to seek other contracts, and that he wouldhave done so. The fact that he did not work for any other persons in the two yearspreceding the accident was because he had been getting enough work from Apex.

[56] The defendant notes that the plaintiff testified that, when he was hired by Apex, hesigned a non-competition agreement under which he would not do work in competitionwith Apex. He apparently does not have a copy of the document and it has not been

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produced. I do not place significant weight on the plaintiff's evidence about anon-competition agreement. Without knowing the actual terms, it would be speculativeto reach conclusions about its scope or about its role in defining the plaintiff'srelationship with Apex. For example, such an agreement may have simply meant thatthe plaintiff would not operate as a home building firm in competition with Apex, ratherthan indicating that he would not provide his services as a carpenter to Apex'scompetitors.

[57] I consider the worker's evidence about his actual pattern of work to be more significant.The fact that he worked for Apex continuously for two years prior to the accident and didnot provide his services to other persons or firms during that time is more consistentwith an employment relationship with Apex than with a relationship betweenindependent businesses.

Whether the plaintiff was able or required to hire other persons.

[58] The plaintiff's evidence is that he did not hire other persons to work on Apex projects.There is no evidence that he was able to hire others to do the work that Apex assignedhim to do. I consider this to be more consistent with an employment relationship than arelationship between independent businesses.

[59] Turning to the major test in the policy, I find on the preponderance of the evidencerelated to the foregoing factors that the plaintiff did not exist as a business enterpriseindependently of Apex. I acknowledge that Apex and the plaintiff may have intended forhim to provide his services as an independent subcontractor, but this is notdeterminative. The majority of the factors in the policy indicate an employmentrelationship. In particular, I consider that the manner in which work was assigned to theplaintiff by Apex, the way that the plaintiff was paid, the fact that the plaintiff did notstand to profit or sustain a loss on the provision of his services, the fact that he workedsolely and continuously for Apex for the preceding two years, and the fact that he didnot hire others to do any the work he was assigned, strongly indicate the existence ofan employment relationship.

[60] I find that at the time of the accident the plaintiff was a worker within the meaning ofPart 1 the Act.

Whether the plaintiff's injuries arose out of and in the course of his employment

[61] The fact that the plaintiff was a worker of Apex, rather than having an existence as anindependent business, does not determine whether his injuries "arose out of and in thecourse of the employment," the terminology is used in sections 5 and 10 of the Act.

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[62] Consistent with the parties' submissions, the Board policies relevant to the "arising outof and in the course of" determination are set out in Chapter 3 of the RSCM II andinclude the following:

• item #C3-14.00, "Arising Out of and In the Course of the Employment";

• item #C3-18.00, "Personal Acts"; and,

• item #C3-19.00, "Work-Related Travel".

[63] Policy item #C3-14.00 of the RSCM II explains that "in the course of the employment"generally refers to whether the injury or death happened at a time and place and duringan activity consistent with, and reasonably incidental to, the obligations andexpectations of the employment. "Arising out of the employment" generally refers to thecause of the injury. The policy recognizes that "employment" is a broader concept than"work."

[64] Policy item #C3-14.00 sets out a list of nine non-medical factors to be considered inmaking a decision as to whether an injury arose out of and in the course of a worker'semployment. The policy explains that all of these factors may be considered in making adecision but that no one of them may be used as an exclusive test. This list is notexhaustive, and other relevant factors may also be considered. As well, other policies inChapter 3 of the RSCM II may provide further guidance. I will discuss these factorsbelow.

[65] Policy item #C3-18.00 recognizes that there is a broad intersection and overlapbetween employment and personal affairs, and provides guidance on weighing theemployment features of a situation against the personal features.

[66] Policy item #C3-19.00 states the general principle that injuries occurring in the course oftravel between a worker's home and the normal place of employment are notcompensable. The policy also states:

... On the other hand, where a worker is employed to travel, injuries ordeath occurring in the course of travel may be covered. This is so whetherthe travel is a normal part of the job or is exceptional. In these cases, theworker is generally considered to be traveling in the course of theemployment from the time the worker commences travel on the publicroadway.

[67] Policy item #C3-19.00, under Part A, "Regular Commute," states that an employmentconnection generally begins when the worker enters the employer's premises for thecommencement of a shift and terminates when the worker leaves the premises at theend of the shift. Therefore, a worker's regular commute between home and a normal,

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regular or fixed place of employment is not generally considered to have anemployment connection. The policy states that this applies to injuries that occur during a

worker's regular or routine commute where:

• the employer provides the worker with a vehicle for the purpose ofwork and also allows the worker to use the vehicle for personal useoutside of work hours; or

• the worker commutes to work in his or her own vehicle and uses thevehicle for a work purpose during the worker's shift.

[68] Policy item #C3-19.00 also describes situations in which travel is part of a worker's

employment such that it may attract workers' compensation coverage. Part C,

"Traveling Employees," provides that an employment connection generally exists

throughout the travel undertaken by traveling employees. Examples of traveling

employees include, but are not limited to, taxi drivers, transportation industry drivers,

cable installers, and sales representatives.

[69] I turn to the nine non-medical factors set out in policy item #C3-14.00.

(1) Whether the injury occurred on the employer's premises

[70] The accident did not occur on the employer's premises. This weighs against an

employment connection to the accident. However, an employment connection may exist

if the plaintiff was a traveling worker at the time of the accident as contemplated by

policy item #C3-19.00. I will return to that question below.

(2) Whether the plaintiff was doing something for the employer's benefit

[71] The parties do not appear to disagree about whether the plaintiff was doing something

for the benefit of the employer. The plaintiff asserts that he decided to do his employer a

favour by picking of the cornerstones at the supplier in East Vancouver and that he

intended to deliver them at some as yet undetermined time to the job site inNorth Vancouver where he working. The defendant submits that in picking up and

transporting the cornerstones, the plaintiff was doing something for the benefit of the

employer.

[72] The plaintiff testified that he did not normally pick up and deliver supplies for Apex, as

the company employed runners for that purpose, who were supplied with company

vehicles and whose job duties specifically included pick-ups and deliveries. This is

confirmed in the affidavit of Raymond Vesely, made on August 21, 2017.

[73] On the face of it, the plaintiff's action in picking up and transporting the cornerstones

would benefit Apex, since the cornerstones were to be used on one its job sites, and the

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Workers' Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 3B1

Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898


plaintiff's delivery of them would save one of Apex's runners from having to pick themup and deliver them. This weighs somewhat in favour of an employment connection tothe accident.

(3) Instructions From the Employer

[74] Policy item #C3-14.00 states that the clearer the employer's instructions regarding aworker's activities at the time of injury the more this factor favours workers'compensation coverage. The parties disagree about whether the plaintiff was acting oninstructions from Apex.

[75] The plaintiff asserts that he decided to do this "on a whim", as a favour to his boss, andthat he was not directed by the employer to do so. This is confirmed by Mr. Vesely in hisaffidavit, at paragraph 9, in which he states that he did not ask the plaintiff to pick upany materials, including corner capstones, for the job site at West 22nd Street inNorth Vancouver. He states that, to the best of his recollection, he has never asked theplaintiff to run errands or pick up materials for a job site. He would not do so becausethe company has runners whose job it is to pick up materials.

[76] Mr. Sayle, the general contractor with Apex for the West 22nd Street project, also statesin his affidavit that he did not assign the plaintiff to pick up any materials, includingcornerstones, for the West 22nd Street job site. He states that he never asked theplaintiff to run errands or pick up materials. He states that a runner was employed forthat purpose for the jobs on which he was the general contractor, including theWest 22nd Street job.

[77] The defendant submits that the plaintiff's evidence about his actions on the morning ofthe accident is problematic for a number of reasons. The defendant notes that theplaintiff reported to ICBC on March 6 and March 9, 2015 that at the time of the accidenthe was using his truck for business purposes to pick up materials as directed by hisboss. On March 9, 2015 he reported to an ICBC adjuster that he picked up materials forhis boss notwithstanding the registration of his vehicle for pleasure use only (except forsix times per month). He stated that he had spoken to his boss about stopping suchrequests until the plaintiff changed his insurance to "business use." Two years later, indiscovery, the plaintiff denied that he had made that statement to ICBC, and denied thathe was directed by his boss to pick up the corner capstones for the project he wasworking on at the time of the accident. The plaintiff testified that he had only been askedonce by his boss to pick up materials, and that on that occasion he used an Apex truck.

[78] The defendant notes that the plaintiff testified that he submitted gas receipts forbusiness write-offs on his income tax returns. The defendant submits that if the plaintiffnever used his wife's truck for business purposes he could not claim deductions forbusiness use of that truck.

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[79] The defendant also notes that the first time the plaintiff mentioned going toEast Vancouver to look at a possible storage site for the boat was during his discoverytwo years after the accident. At that time he testified that he had spontaneously decidedto stop by the tile shop, where he had never been before, to see whether somecapstones were ready to be picked up for the job site. He had no recollection of how hehad learned the capstones were ordered or were available for pick-up.

[80] In addition, the defendant notes that the plaintiff testified that when he picked up thecapstones, he signed an invoice for them, placed them in the back of the pick-up truck,and headed towards North Vancouver. He did not intend to drive directly to the job siteto drop off the capstones, nor did he intend to take them to the job site when he wentthere later. Instead, he intended to leave the capstones in the back of the pick-up truck(which I note had a canopy) until such time as he needed them at the work site, atwhich time he would ask his wife to drop them off.

[81] The defendant also submits that the plaintiff's evidence about his intentions on themorning of the accident is not consistent. The plaintiff said that he had to return thepick-up truck to his wife, but also stated that if the vacant lot was suitable for parking hisboat he intended to drive back to North Vancouver to bring the boat to the vacant lot onOxford Street in East Vancouver. The defendant submits that either the plaintiff's wifeneeded the pick-up truck that morning or she did not. If she needed the truck thatmorning to drop their child off at pre-school, the plaintiff could not possibly have hadenough time to complete the task of moving the boat, which the defendant contendswould have taken between 90 and 120 minutes.

[82] The defendant submits that, in light of the plaintiff's confusing and contradictoryevidence, the more logical explanation for the plaintiff's actions on the morning of theaccident can be found in the plaintiff's time sheets for the week of the accident. Thesetime sheets show that he was building exterior stone pillars on the two days before theaccident. The defendant submits that this provides a more straightforward explanationfor the plaintiff's spontaneous decision to pick up the corner capstones inEast Vancouver, since the plaintiff's duties would likely have included adhering them tothe pillars in front of the new residence at the job site. As I understand the defendant'ssubmissions, the plaintiff's evidence about his reasons for picking up the capstoneslacks credibility, and the defendant's position is that the plaintiff must have realized thathe needed to get the capstones to complete the work that had been assigned to him.

[83] I recognize that the plaintiff's evidence is not entirely consistent and is to some extentproblematic. At the same time, I am not persuaded by the defendant's argument that theplaintiff was effectively acting on his employer's instructions when he picked up thecornerstones and placed them in his truck with the intention of transporting them to thejob site in North Vancouver. The defendant does not appear to assert that the plaintiffwas acting on his employer's direct instructions, but instead submits that the reason for

15



the plaintiff being where he was at the time of the accident was for the purpose ofcompleting the worker assigned to him by Apex.

[84] I note that, contrary to the defendant's submissions, the plaintiff is not reported by ICBCto have expressly stated on March 6 or March 9, 2015 that he was acting on thedirections of his employer in picking up the cornerstones. The ICBC adjuster's note fromMarch 6, 2015 stated that the plaintiff was "... using [vehicle] to pick up contractingmaterials for job hens working on". The ICBC March 9, 2015 note indicates that anadjuster spoke to the plaintiff about the use of the pick-up truck, and the plaintiff statedthat he was aware on the restrictions on the insurance policy. The ICBC adjuster's notestates that the plaintiff also reported that:

... he rarely uses the vehicle for work — once in awhile he is asked fromhis boss to pick up materials but he said he has told his [boss] he can onlydo that max 6X/mth. [H]e said that he has been asked more and more todo that and he said he has had a conversation with his boss and askedhim [to] restrict that until he renews and changes the policy.

[85] I recognize that the plaintiff has denied making the latter statement to ICBC (in both hisdiscovery testimony and his affidavit). However, even if I were to accept that he madesuch a statement to ICBC, I do not read the statement as demonstrating that the plaintiffstated he received instructions from his employer to pick up the capstones on March 6,2015. I appreciate that the plaintiff's comments to ICBC could be interpreted as implicitlysaying that he was acting on his employer's instructions. However, because the plaintiffdid not expressly say that to the ICBC adjuster in the March 6 or March 9, 2015interviews, I do not find that his discovery testimony two years later (about thespontaneous decision, on the morning of the accident, to pick up the cornerstones)directly contradicts his statement to ICBC closer in time to the accident. The discoverytestimony is consistent with the plaintiff telling ICBC that he was transporting materialsfor a job he was working on.

[86] The defendant's argument about the apparent inconsistency in the plaintiff's evidenceabout his intentions on the morning of the accident (both intending to possibly move theboat to East Vancouver and intending to return the truck to his wife so she could taketheir child to pre-school) does not address the evidence of the plaintiff's wife.

[87] In her affidavit Ms. Atkey states that at the time of the accident their younger child wasenrolled in pre-school, and that the pre-school hours were from 12:30 p.m. until3:00 p.m. on Tuesdays, Thursdays and Fridays (the accident occurred on a Friday).She has attached a copy of the pre-school official receipt/registration form to heraffidavit, which confirms those hours. She states that on Tuesdays, Thursdays andFridays it was her practice to use the pick-up truck to drop off the younger child atpre-school and then to pick her up at about 3:00 p.m., after which she would go andpick up the older child from primary school.

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[88] Ms. Atkey also states that, on the morning of the accident, the plaintiff told her he wasgoing to East Vancouver to look at a storage site for the boat, and planned to go to worklater that day because work was slow. Ms. Atkey reminded him that she needed thepick-up truck to take their younger child to pre-school, and to do some errands. She didnot need the truck back until late morning, but asked the plaintiff to bring it back "soonerthan later."

[89] Based on Ms. Atkey's evidence, I do not agree with the defendant's argument that theneed to return the truck to her was inconsistent with the plaintiff's statement that if hehad considered the Oxford Street lot to be suitable, he would have returned toNorth Vancouver to bring the boat to Oxford Street before returning the truck toMs. Atkey. Given the timing of the trip to Vancouver (the accident occurred atapproximately 8:45 a.m. on the return trip to North Vancouver) and the travel timesidentified in the defendant's submissions, I infer that, even if it would have taken theplaintiff two hours to travel from the Oxford Street lot to North Vancouver to get the boatand bring it back to the Oxford Street lot in East Vancouver, he could have returned thetruck to his wife in North Vancouver by late morning.

[90] I am not persuaded by the defendant's submissions that the plaintiff's evidence abouthis intentions on the morning of the accident should be rejected as incredible orunreliable. Considering the evidence on the whole, I accept that it is likely that theplaintiff undertook the journey to Vancouver on the morning of the accident as he hasdescribed in his discovery testimony and affidavit.

[91] I find that the plaintiff was not acting on his employer's instructions in his picking up thecornerstones to bring them later to the job site on West 22nd Street in North Vancouver.I accept that after he determined the empty lot on Oxford Street was not suitable forstoring the boat, he decided on his own initiative to see if the cornerstones wereavailable for pick-up and, if so, to pick them up as a favour for his employer.

[92] I have also considered whether the plaintiff was acting on his employer's instructionswhen he went to look at the empty lot on Oxford Street as a possible site to which tomove the boat. He had been told by his employer that he would have to get the boat outof the Apex works yard, and had been offered another potential storage location at theOxford Street lot. I do not consider that these circumstances amount to directions by theplaintiff's employer. Instead, I interpret the evidence (including the affidavit of Mr. Sayle)as showing that Mr. Sayle was doing the plaintiff a personal favour by allowing theplaintiff to store the boat in Apex works yard, and in offering the Oxford Street lot as analternative storage site because the boat had to be removed from the works yard. Theevidence does not indicate that the offer of the Oxford Street lot amounted to adirection, or that the plaintiff's drive to look at the Oxford Street lot on the morning of theaccident was the result of instructions from Apex. Instead, the plaintiff chose toinvestigate the Oxford Street lot as a possible storage site for personal reasons.

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Workers' Compensation Appeal Tribunal 150, 4600 Jacombs Road, Richmond, B.C. V6V 391Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898


[93] I find that the fact that the plaintiff was acting for personal reasons, and not oninstructions from his employer, in making the return journey between North Vancouverand East Vancouver weighs against workers' compensation coverage for the accident.

(4) Equipment Supplied by the Employer

[94] That the accident occurred while the plaintiff was driving his personal vehicle, ratherthan a vehicle supplied by his employer, weighs against coverage. While some of theemployer's supplies (the cornerstones) were in the back of the plaintiff's truck at thetime, they were not the reason for the plaintiff's journey and their presence in the truckdid not play a role in the occurrence of the accident. I find that this factor does notfavour workers' compensation coverage.

(5) Receipt of Payment or Other Consideration from the Employer

[95] The accident did not occur while the plaintiff was in the process of receiving payment orother consideration (drawing pay) from the employer. I consider this factor to be neutral.

(6) During a Time Period for which the Plaintiff was Being Paid or Receiving OtherConsideration

[96] The plaintiff testified that he was only paid for his hours of work, and that he was notpaid for travel. The accident occurred before the plaintiff had started work for the day athis job site, and the evidence does not show that it occurred during a time period forwhich he was being paid or receiving other consideration from Apex. Instead, theaccident occurred during the plaintiff's personal time.

[97] I consider that this factor weighs against workers' compensation coverage for theaccident.

(7) Activity of the Employer, a Fellow Employee or the Worker

[98] The defendant submits that the plaintiff was injured as a result of the actions of anotherworker, namely the defendant Mr. Magee.

[99] The plaintiff points out that the Board policy does not refer to the actions of "anotherworker" but to a "fellow employee."

[100] Consistent with the plaintiff's submission, I do not interpret this factor in the policy asencompassing the actions of all workers who might be involved in an accident. Instead,the reference to the actions of "the employer or of a fellow employee" encompass theactions of another employee of the same employer, in this case Apex.

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[101] There is no evidence that the accident resulted from the actions of the plaintiff'semployer Apex or of a fellow employee of Apex. I find that this factor does not favour anemployment relationship to the accident.

(8) Part of Job

[102] The policy provides that if the injury occurred while the worker was performing activitiesthat were part of his regular job, this favours workers' compensation coverage.

[103] The defendant's position is that the accident occurred while the plaintiff was performing

activities that were part of his job. The defendant points to the contradictory nature ofthe plaintiff's evidence, and refers to the plaintiff's immediate post-injury statements to

ICBC, as documented in the adjusters' claim notes. The defendant submits that theevidence indicates that the plaintiff had identified a need for capstones to complete his

list of tasks that had been provided by the employer on the project he was working on.

Either in response to the instructions from his employer or on his own initiative, theplaintiff drove to East Vancouver to pick up the manufactured capstones for the purposeof using them to complete the exterior pillars he had been working on in the dayspreceding the accident.

[104] The plaintiff's position is that picking up and transporting materials to be used at jobsites was not part of his regular job duties and that his decision to pick up thecornerstones occurred in the context of a personal journey to inspect the potential boat

storage site.

[105] The plaintiff's evidence about his job duties is consistent with the affidavit evidence of

Mr. Vesely and Mr. Sayle, both of whom state that the plaintiff was employed to docarpentry work and that his duties did not include transporting materials to job sites, aspecific activity for which Apex employed runners to whom it provided vehicles. Theplaintiff's job did not include working as a runner, and both Mr. Vesely and Mr. Sayle

state that they did not instruct him to pick up the cornerstones on the day of theaccident.

[106] I find that the plaintiff's job duties did not generally include travel to pick up materialsand deliver them to Apex job sites. I find that in picking up the cornerstones toeventually deliver them to the job site where he was working, the plaintiff was notperforming an activity that was part of his job. Instead, in deciding on his own initiative

to pick up the cornerstones, the plaintiff was performing a task normally performed by

other Apex employees.

[107] I find that this factor weighs against workers' compensation coverage.

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(9) Supervision

[108] The evidence does not show that the plaintiff was being supervised by Apex or arepresentative of Apex at the time of accident. Instead, I have found that the accidentoccurred while the plaintiff was engaged in what was essentially a personal activity.

[109] This factor does not favour workers' compensation coverage.

[110] The only one of the foregoing factors that favours workers' compensation coverage isthe fact that in transporting the cornerstones from the supplier in Vancouver toNorth Vancouver, to be delivered to a job site at some future time, the plaintiff wasdoing something for the benefit of his employer. The other factors are either neutral orweigh against an employment connection. I consider the fact the accident happened offthe employer's premises, during a time when the plaintiff was not being paid by hisemployer and while he was performing an activity that was not part of his regular job, toweigh strongly against workers' compensation coverage for the accident. On the basisof the nine factors in policy item #C3-14.00, I would find that the accident did not ariseout of or in the course of the plaintiff's employment.

[111] It is also necessary, however, to consider the policy respecting work-related travel.

[112] As pointed out by the defendant, the accident did not occur while the plaintiff was takingpart in his regular commute between his home and his workplace. Accordingly, thegeneral principle of denying workers' compensation coverage during a regular commuteis not determinative.

[113] The evidence does not support a finding that the plaintiff was generally a travelingworker. He testified that he did not normally travel between multiple job sites in thecourse of a day but, instead, would be assigned to a construction project and work atthat site for weeks or longer, commuting between his home and that job site on a dailybasis until he was assigned to work at another site. In addition, for the reasons givenearlier, I also find that the plaintiff's job duties did not normally include transportingmaterials to the employer's job sites. I conclude that while the plaintiff was working forweeks at a time at a particular job site, the pattern of his employment was such that thejob site was a regular or fixed place of employment. The plaintiff was not employed totravel, and the services of employment that he provided to Apex did not include travel.

[114] Consistent with policy item #C3-19.00, even though he was not generally employed asa traveling worker, the plaintiff may have been a traveling worker on an exceptionalbasis if he undertook employment-related travel in one or more of the circumstances setout in the policy, such as where a worker is responding to an emergency or is travelingto a remote worksite. Those circumstances do not exist in the present case.

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[115] According to Board policy, if a worker has a normal, regular or fixed place ofemployment, and is directed by the employer to temporarily work in another location,the worker may be covered while traveling to the other location. While the plaintiff had aregular, fixed place of employment at the West 22nd Street North Vancouver project sitewhere he had been working for a number of weeks, I have already found that on the dayof the accident he was not traveling on his employer's instructions to either theOxford Street lot or to the cornerstone supplier. I find that he was not a traveling workeron an exceptional basis at the time of accident.

[116] Although the plaintiff was not on his regular commute on the morning of accident, I haveconsidered the following provisions from policy item #C3-19.00(A) to be relevant to theplaintiff's circumstances:

a. Deviations From Route

An employment connection may be found where a worker is instructed bythe employer to perform some activity related to work, which requires theworker to deviate from the worker's normal route while commuting.Generally speaking, an employment connection will only be found where,because of the employer's instructions, the worker is required to dosomething that would not normally be done while traveling to or from work,or to go somewhere where the worker would not normally go. A minordiversion from what is essentially a normal commute to or from work doesnot favour coverage.

Where an employer instructs or otherwise directs a worker to temporarilywork at a place other than the normal, regular or fixed place ofemployment, an employment connection may be found for travel from thepoint at which the worker commences travel on the public roadway to thetemporary work location. These workers are considered "travelingemployees", which is discussed in Section C below. Once the temporaryassignment becomes routine or consistent in nature, the travel will beconsidered a regular commute. This is assessed in the context of eachindividual case.

[117] The worker's travel from his home to the Oxford Street lot for personal reasons (and hisreturn to his home in North Vancouver) is analogous to commuting between home andwork in the sense that it was personal travel that does not attract workers'compensation coverage. Moreover, since the employer had not instructed the plaintiff topick up the capstones in Vancouver, the plaintiff was not on an employment-relateddeviation from his personal travel to and from the Oxford Street lot.

[118] I find that the plaintiff was not in the course of his employment when the accidentoccurred while he was driving on his way back to North Vancouver, and that the

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et)WCAT WCAT Decision Number: A1602619

accident did not arise out of his employment. While there was some connection to hisemployment due to his having picked up the capstones to transport them to the job site,in the circumstances of this case the employment connection to the travel was tenuous.

[119] I am unable to conclude that the mere fact of the plaintiff having decided on his owninitiative to pick up the capstones from the supplier and to deliver them at some futuretime to the job site brought what was otherwise a personal journey into the course of hisemployment. In my view, the transportation of the capstones involved a minor intrusionof the plaintiff's employment into an otherwise purely personal activity.

[120] Because the plaintiff's injuries resulted from an accident within the meaning of section 1and section 5(4) of the Act, there is a presumption that if the accident arose in thecourse of the employment it also arose out of the employment, and vice versa.However, because I have found that the accident did not arise out of or in the course ofthe plaintiff's employment, the presumption under section 5(4) of the Act does not arise.

[121] I find that any injuries suffered by the plaintiff at the time of the accident did not arise outof and in the course of his employment within the scope of Part 1 of the Act.

Status of the Defendant, Trevor Magee

[122] The plaintiff did not request a determination of Mr. Magee's status in his section 257application, and has not addressed the status of Mr. Magee in the written submissions.

[123] In his written submissions, Mr. Magee seeks a determination that he was a worker atthe time of the accident and that his actions at the time of accident arose out of and inthe course of his employment.

[124] The defendant's counsel has noted that the plaintiff chose not to conduct anexamination for discovery of Mr. Magee and that the information about his status isprovided to WCAT through counsel's written submissions. The defendant has providedcopies of some pages from Mr. Magee's diary and printouts from an Internet website forR & B Brewing. The defendant also relies on the August 1, 2017 memorandum from theBoard's Audit and Assessment Department which confirmed that Howe Sound BrewingCompany Ltd. was registered as an employer at the time of the accident. The defendantasserts that because he was a vice-president and the general manager of Howe SoundBrewing Company Ltd., under policy item #AP1-1-4, he is by definition a "worker."

[125] Policy item #AP1-1-4(c) provides that, as an incorporated entity is considered theemployer, a director, shareholder or other principal of the company who is active in thebusiness operations of the company is considered to be a worker under the Act.However, in this case the situation is complicated by the fact that Mr. Magee hasidentified multiple potential employers and has provided evidence that although he was

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being paid by HSBC at the time of the accident, he was traveling between two meetingsrelated to his work with one or more of the R & B Brewing entities.

[126] Because Mr. Magee identified two employers in his submissions ("Howe Sound BrewingCompany Ltd." and "R & B Brewing Company") and as various entities have beenidentified in relation to the name "R & B Brewing," on January 3, 2018 WCAT requestedclarification from legal counsel for Mr. Magee as to which entity was his employer at thetime of the accident. The WCAT letter asked counsel Mr. Magee to confirm which of thefollowing entities was Mr. Magee's second employer:

• 1032151 B.C. Ltd. dba R and B Brewing, Squamish, B.C. (Boardaccount #948917); or

• 0504268 B.C. Ltd. dba R & B Brewing Incorporated,2446 East 28th Avenue, Vancouver, B.C.: or

• R & B Brewing Company at 54 East 4th Avenue, Vancouver, B.C.

[127] In a March 6, 2018 letter to WCAT, legal counsel for Mr. Magee advised that Mr. Mageeconfirmed that at the time of the accident his sole source of employment income wasfrom "Howe Sound Brewing Company (0420301 BC Ltd)." Counsel also advised that at"the time of loss" (which I understand to refer to the time of the accident) Mr. Mageewas also a director of R & B Brewing Company Limited (1032151 B.C. Ltd.). Counseladvised that this company was incorporated on March 31, 2015 and that he was notdrawing income from this company at the time of the accident.

[128] The information provided by the defendant's counsel raises a further question as towhether Mr. Magee was listed as a director of R & B Brewing Company Ltd. at the timeof the accident (March 6, 2015), since the company was not incorporated untilMarch 31, 2015. Information received from the Board also indicates that this companywas registered with the Board on April 1, 2015 and was not registered at the time of theMarch 6, 2015 accident.

[129] I note that the entity named "R & B Brewing Company", whose address is given as54 East 4th Avenue, Vancouver, and whose Internet website lists Mr. Magee as apart-owner and general manager, is not registered with the Board according theinformation received from the Board's Audit and Assessment Department.

[130] In addition, the March 13, 2018 memorandum from the Board's Audit and AssessmentDepartment indicates that there is no record of a registration for "Howe Sound BrewingCompany (0420301 BC Ltd.)", the entity from whom Mr. Magee advised he receivedemployment income at the time of the accident. However, there is a registration for"Howe Sound Brewing Company Ltd., dba Howe Sound Inn and Brewing Company,"and it may be that Mr. Magee intended to refer to that company. However, payment of"employment income" by that company would be only one factor in relation to whether

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Mr. Magee was in the course of his employment at the time of the accident. A significantconsideration would be that Mr. Magee appears to have been traveling betweentwo "R & B Brewing" meetings at the time of the accident.

[131] In light of the foregoing, I conclude that further information would be required todetermine Mr. Magee's status under the Act at the time of March 6, 2015 accident,including both whether he was a worker within the meaning of the Act and if so, whether

his actions at the time of the accident arose out of and in the course of his employment.However, in light of my determination that the plaintiff's injuries did not arise out of andin the course of his employment, I note that a determination of Mr. Magee's status may

not be required. Accordingly, I am not certifying as to Mr. Magee's status at this time.

[132] Determinations of the status of the defendant Howe Sound Brewing Company Ltd. andof the defendant Jim Pattison Industries Ltd. have not been requested.

[133] If further determinations are required with respect to the status of the parties to theaction, including the status of Mr. Magee, a supplemental certificate may be requested.

Conclusion

[134] I find that at the time of the March 6, 2015 accident:

(a) the plaintiff, Chase Atkey, was a worker within the meaning of Part 1 of the Act;and,

(b) any injuries suffered by the plaintiff, Chase Atkey, did not arise out of and in thecourse of his employment within the scope of Part 1 of the Act.

Guy RieckenVice Chair

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Telephone: (604) 664-7800; 1-800-663-2782; Fax (604) 664-7898

•

•

NO. M-154571VANCOUVER REGISTRY

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF THE WORKERS COMPENSATION ACT

REVISED STATUTES OF BRITISH COLUMBIA 1996, CHAPTER 492, AS AMENDED

BETWEEN:

AND:

CHASE ATKEY

PLAINTIFF

TREVOR MAGEE, HOWE SOUND BREWING COMPANY LTD, ANDJIM PATTISON INDUSTRIES LTD.

C ERTIFICATE

DEFENDANTS

UPON APPLICATION of the Plaintiff, CHASE ATKEY, in this action for a

determination pursuant to section 257 of the Workers Compensation Act;

AND UPON NOTICE having been given to the parties to this action and other

interested persons of the matters relevant to this action and within the jurisdiction of the

Workers' Compensation Appeal Tribunal;

AND AFTER an opportunity having been provided to all parties and other

interested persons to submit evidence and argument;

AND UPON READING the pleadings in this action, and the submissions and

material filed by the parties;

AND HAVING CONSIDERED the evidence and submissions;

THE WORKERS' COMPENSATION APPEAL TRIBUNAL DETERMINES THATat the time the cause of action arose, March 6, 2015:

1. The Plaintiff, CHASE ATKEY, was a worker within the meaning of Part 1 of theWorkers Compensation Act.

2. Any injuries suffered by the Plaintiff, CHASE ATKEY, did not arise of and inthe course of his employment within the scope of Part 1 of the WorkersCompensation Act.

CERTIFIED this 7th day of August, 2018

ilL'cAt'

Guy RieckenVICE CHAIR

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