Williams HR Law LLP


November 15, 2023

Employers have a vested interest in limiting their employees’ claims to the Workplace Safety and Insurance Board (“WSIB”), as premium rates are influenced, in part, by the number of claims. In the recent decision of Interpaving Limited v. Workplace Safety and Insurance Appeals Tribunal [Interpaving Limited], the employer challenged an employee’s claim for workers’ compensation benefits in relation to an injury sustained while driving home from work under the influence of alcohol. Despite the employer’s prohibition against drinking on the job and the incident occurring away from the worksite, the Ontario Superior Court of Justice (“ONSC” or the “Court”) upheld the decision of the Workplace Safety and Insurance Appeals Tribunals (the “Tribunal”) to grant the employee benefits. This ruling was based on the Court’s determination that the accident occurred “in the course of employment”.


The employee was employed as a road crew foreman, a position that involved using a company-owned vehicle for commuting and transporting coworkers to and from various worksites. While driving two coworkers from a worksite, the employee, who was impaired by alcohol, crashed the vehicle. As a result, the employee sustaining a spinal cord injury, leading to paraplegia. Notably, the employer prohibited alcohol consumption while working. The employee later pleaded guilty to driving while impaired.

The employee applied for benefits under the Workplace Safety and Insurance Act, 1997 [WSIA] and was granted benefits by an WSIB Eligibility Adjudicator. In a series of subsequent decisions, the employer unsuccessfully sought reconsideration and appealed the employee’s entitlement to WSIA benefits twice, including to the Tribunal. The employer then made an application for judicial review, challenging the reasonableness of the Tribunal’s decision.

Judicial Review Decision

The employer argued that it was unreasonable for the Tribunal to conclude that the employee was in the course of employment while driving home from work. The ONSC rejected the employer’s argument and held that the Tribunal’s decision was reasonable. In assessing whether the injury occurred in the course of employment, the Tribunal considered the WSIB Operational Policy Manual, which states that a worker is in the course of employment if their employer requires them to drive to and from work for the purpose of employment, as was the case.

The employer also argued that the employee’s decision to drink in excess implied that he could not be in the course of his employment. In rejecting the employer’s argument, the ONSC deferred to the Tribunal’s factual finding that the employee was engaged in his work duties, driving two coworkers from a worksite, when the accident occurred.

Lastly, the employer argued that the Tribunal’s decision was “socially and morally repugnant”, because it granted benefits to a worker who chose to commit a criminal offence by driving drunk without a seatbelt. Importantly, section 17 of the WSIA disentitles a worker from benefits if their injury is attributable solely to their “serious and wilful misconduct”, unless the worker’s injury results in their death or serious impairment.

According to the Tribunal, the employee engaged in “serious and wilful misconduct” by excessively consuming alcohol, such that he would typically be disentitled from WSIA benefits. However, since the employee suffered paraplegia, which constituted a “serious impairment”, the Tribunal determined that the employee’s injury was brought within the exception provided under section 17 of the WSIA. The ONSC found the Tribunal’s determination in this regard to be reasonable. The Court specifically cited the Tribunal’s reference to the no-fault nature of the worker’s compensation scheme as a reasonable basis for the Tribunal’s interpretation of the WSIA. While the Court stated that section 17 of the WSIA would not apply to workers who demonstrated “malign intent or an intention to harm themselves or others”, the mere fact that the employee’s conduct was criminal in nature was insufficient to oust the legislative intent of the WSIA.

Takeaways for Employers

This decision illustrates that even when an employee’s injury results from serious and wilful misconduct, the employee  may still be entitled to WSIA benefits if their injury is sufficiently serious and sustained in the course of employment.

That said, employers would be well advised to set the expectation that employees are not to consume alcohol or drugs, not only in the workplace, but in the course of their employment more generally. This can be achieved by implementing workplace policies and providing appropriate training.

While not directly related to WSIB benefits, employers should be cognisant that circumstances similar to those in Interpaving Limited could potentially trigger their duty under the Ontario Human Rights Code to accommodate employees with a disability, which includes drug and alcohol dependencies. As part of this general obligation, employers may have a duty to inquire about an employee’s accommodation needs, even if not specifically requested, particularly where there is reason to believe that the employee’s misconduct or poor work performance is related to a disability. For more information, please read our blog about the duty to inquire.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.