A worker who fell and was injured while walking from the parking lot to her place of employment inside a mall in Ontario was not on the employer’s premises at the time of the accident, a Tribunal has ruled.
The worker, MZ, who was an employee of a company identified as “W.”, fell on Nov. 22, 2015, after slipping on a sidewalk that covered the area between the mall and the parking lot in London, Ont. She sustained injuries including low- and mid-back strain, sciatic, anxiety, depression, difficulty sleeping and fatigue.
An application was brought by White Oaks Mall and Mobil Services, which was under contract to the mall to provide maintenance services, to the Workplace Safety and Insurance Appeals Tribunal. The issue was whether MZ’s right of action was taken away pursuant to section 31 of the Workplace Safety and Insurance Act (WSIA) and whether MZ was entitled to claim benefits under the act.
The central issue was whether MZ’s injury occurred in the course of her employment, considering the location and circumstances of the accident. The key factor revolved around whether the sidewalk where the incident occurred was part of W.’s premises and under its control. The lease between the mall and W. indicated that while W. had rights to display merchandise on the sidewalk, the maintenance and safety responsibilities lay predominantly with the mall.
In the case, Mr. L., a senior operations manager, testified about the maintenance responsibilities and lease arrangements. He highlighted that W. had the right to display items on the sidewalk but was not responsible for its day-to-day upkeep. This included winter maintenance, like shoveling and salting, primarily managed by the mall.
MZ’s testimony revealed that she was heading to work, parking her car in the general lot, and walking towards the store entrance when the accident occurred. She had not observed any maintenance work on the day of her fall.
The Tribunal found that while W. had some rights over the sidewalk for displaying merchandise, it did not have control over its maintenance, especially regarding winter conditions. The mall, through its subcontractors, was responsible for these tasks, indicating that the area where MZ fell was under the control of the mall and not her employer, W.
The decision emphasized that the employer’s control over the premises is a critical factor in determining the course of employment in such cases. Since the accident did not occur on the employer’s premises, MZ retains her right to action against the defendants — White Oaks Mall and Mobil Services.
“In the circumstances of this case, (MZ) fell almost 10 feet from the door… in an area where there were no displays and was being used used predominantly as a walkway,” the Tribunal said. “I find it is an area where (White Oaks Mall and Mobil Services), at that particular time, were exercising full control of the winter maintenance.”
It would therefore be “inappropriate” to burden her employer, W., with a compensation claim arising from an accident it had no opportunity to prevent, it said.
For more information, see Decision No. 1510/23, 2023 ONWSIAT 1686 (CanLII).
