The Workplace Safety and Insurance Board (WSIB) awards workers’ compensation benefits only when an accident arises “out of and in the course of” a worker’s employment. While that may sound straightforward, it is not. The WSIB has found a worker to be entitled to benefits in surprising circumstances, such as when:

• A worker fell while walking to a Weight Watchers meeting during her break.
• An injury was sustained at an off-site, after-hours workplace holiday party.
• A worker was hurt while driving home under the influence in a carpool with co-workers.

An employer may be shocked at how broadly the WSIB can interpret the employment connection, and how easily liability can extend beyond the traditional workplace or workday. The result can be unexpected and significant premiums for an employer.[1]

In this article we unpack:

• How the WSIB determines whether an accident arose out of and in the course of a worker’s employment.
• Steps an employer can take to reduce risk.
• Best practices to minimize claims costs.

Note: This article highlights Ontario legislation and caselaw.  However, other Canadian provinces have a similar approach to addressing workers’ compensation benefit entitlements. To learn more and for assistance, contact Sherrard Kuzz.

“Out of and in the course of” a worker’s employment

Under the Workplace Safety and Insurance Act,[2] a worker who “sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits.” This entitlement also arises when a worker suffers a chronic or traumatic mental stress injury arising out of and in the course of employment.

The WSIB Operational Policy Manual contains numerous policies addressing specific scenarios such as an accident on or off the employer’s premises, in a parking lot or plaza, while travelling, while engaging in personal activities, or when fighting or engaging in horseplay. Three decisions of the Workplace Safety and Insurance Appeals Tribunal (“Tribunal”) illustrate how the Tribunal determines whether an injury is compensable.

1. Decision No. 231/25: On premises Weight Watchers meeting [3]

The worker worked at a large university. During her paid 15-minute break, she walked to another building on the university’s campus to attend a brief Weight Watchers “weigh-in.” The university did not organize the Weight Watchers program, although it provided space in one of its buildings for the meeting. While in the building where the meeting took place, the worker fell and suffered a concussion.

The employer argued the worker was not entitled to benefits because she was engaged in a “personal” activity when the injury occurred. Further, the university’s “very large” campus should not all be considered part of the worker’s workplace, and the worker was not at her individual place of employment on campus when the injury occurred.

The Tribunal disagreed and found the worker was entitled to benefits. It held, with limited exceptions, an employer is responsible for any accident on its premises and within its control. The key factor in distinguishing between a personal and work-related activity is the location of the activity rather than the type of activity. By allowing a Weight Watchers meeting to occur on its premises, the university condoned the worker’s participation even though it did not organize the event.

The Tribunal noted a worker is likely entitled to benefits if they are injured:

• When participating in a work-related sports activity if the employer condones the activity by making the employer’s premises available and/or exercising a form of supervision and control, and
• By ordinary hazards of the employer’s premises during a non-work period (break, lunch, etc.).

In addition to the place of the injury, the Tribunal will consider the time and the nature of the activity:

• If a worker has fixed working hours, an accident will generally be found to have occurred in the course of employment if the accident occurred during those fixed hours or a reasonable period before starting or after finishing work.
• If a worker was engaged in an activity to satisfy a personal need, the worker may have been engaged in an activity that was “incidental” to employment or “in the course of” employment. This depends on factors such as the duration of the activity, nature of the activity and work environment, and the extent to which the activity deviates from the worker’s regular employment activities.

2. Decision No. 551/19: Off-site, after-hours workplace holiday party [4]

A worker injured her ankle during a “balloon stomp” game at a workplace holiday party. The party was held offsite and after hours. It was organized by a social committee of workers and funded jointly by the employer and through a $2.00 deduction from each paycheque.

The Tribunal found that although the party was offsite and after hours, the injury arose out of, and in the course of, the worker’s employment.

The Tribunal highlighted that while a worker is generally not considered to be in the course of their employment when away from the workplace, there are exceptions to that general rule. The overriding consideration is whether “the hand of the employer was clearly present in the event in which the worker participated.” In other words, did the event have a significant employment relationship and connection to the employer?

In this case, the answer was yes. The purpose of the social committee was to “improve employee morale,” “hopefully allow people from different departments to get to know each other,” and “to work more cooperatively.” The Social Committee led to “a better work environment” and “increased productivity,” and the employer gave employees “service pins” at the party.

3. Decision No. 852/19: Driving home with colleagues while impaired[5]

A road crew foreman was required to drive the company vehicle, with his coworkers, to and from the worksite for purposes of his employment. The foreman crashed the vehicle while driving home from work with two members of the road crew and suffered a serious spinal cord injury. Beer cans were found at the scene of the accident, and the foreman had a blood alcohol level above the legal limit. The Tribunal found the foreman was entitled to benefits. The employer brought a judicial review of the Tribunal’s decision, but the court held the decision was reasonable.[6]

The employer argued the worker was “off the clock” when the accident occurred and, further, the worker’s decision to drink to excess severed the nexus between the accident and employment.

The court disagreed. The worker’s alcohol consumption was not relevant to the determination of whether he was in the course of his employment when the accident occurred. The worker was engaged in work duties—driving two coworkers from the site—when he was injured. He was therefore entitled to benefits.

Steps to reduce risk

A workplace injury can both impact the injured worker and carry significant financial implications for an employer. To reduce the risk, consider the following strategies:

• When planning a workplace event, including an off-site social event, consider low risk options, and monitor alcohol consumption and general safety.
• Implement a risk review system to ensure all personal activities scheduled on work premises are risk-assessed to the extent possible.
• Proactively designate which spaces can be used for third-party or employee programs and which are off-limits.
• Regularly audit risks at and between locations on premises (e.g., a tripping hazard).
• Enforce safety protocols policies regarding health and safety precautions, safe travel, and alcohol consumption. Larger organizations may want to designate a safety coordinator trained for this role.
• Although there may still be a connection to the employer, hold high-risk social or personal activities off-site whenever feasible.

Minimizing claims costs

The longer a worker is absent from work, the less likely they are to return to their job. Three months after a disabling injury, the likelihood of a worker returning to work is 90 per cent. That drops to 32 per cent at one year and to 5 per cent at two years. According to the WSIB’s Better at Work approach, after a six-month disability-related absence from work, approximately 50 per cent of workers will never return to full-time employment. This is why we strongly encourage employers to actively participate in the return-to-work process.

It is also critical that employers engage early, and often, with boards such as the WSIB. Ignoring the issue or waiting to get involved can have significant cost consequences for an employer. It is important to ensure the workers’ compensation board processes a claim as quickly as possible. If the process moves too slowly, this can negatively impact the chances a worker will successfully recover and/or be re-trained.

Sherrard Kuzz LLP can help. Our team of experienced WSIB lawyers regularly assists employers to navigate the workers’ compensation system. Call us.

ABOUT THE AUTHORS

Michael G. Sherrard and Angela Powell are lawyers with Sherrard Kuzz LLP, one of Canada’s leading employment and labour law firms, representing employers.  Michael and Angela can be reached at 416.603.0700 (Main), 416.420.0738 (24 Hour) or by visiting www.sherrardkuzz.com.  

Michael G. Sherrard is recognized as one of Canada’s leading employment and labour lawyers by Chambers Global®, Lexology® (Global Elite Thought Leader), Legal 500®, Best Lawyers® and Lexpert®. Acclaimed for his strategic excellence and outstanding client service, says Chambers Global®, Michael “is described as ‘exceptional,’ and impresses with his ‘phenomenal’ work.” He serves clients who are national and international, public and private, and operate in a wide range of industries and sectors.

Michael frequently advises employers in the franchise sector on employment and labour issues and is widely published and sought-after to speak at national and international conferences. He is also a recipient of the Canadian Franchise Association’s Volunteer Leadership Excellence Award and Distinguished Franchise Support Service Award, reflecting his longstanding contribution to the franchise sector.

Angela Powell is a leader in workplace safety and insurance with more than 20 years of experience in both private practice and the highest levels of government and policy making. Angela leads Sherrard Kuzz LLP’s workplace safety and insurance practice, representing employers before courts and tribunals and advising on claims, risk management, and compliance.

Prior to joining Sherrard Kuzz LLP, Angela served the Workplace Safety and Insurance Board (“WSIB”) for 12 years, most recently as its Chief Legal Officer. Her career also includes senior leadership roles at eHealth Ontario, the Ontario Cabinet Office, and the Ministry of Labour, as well as serving as Senior Policy Advisor to the Minister of Labour. Prior to her public-sector work, Angela practiced as a labour and employment lawyer, bringing a practical, solutions‑focused approach to her clients.

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice, nor does accessing this information create a lawyer-client relationship. This article is current as of March 2026 and applies only to Ontario, Canada, or such other laws of Canada as expressly indicated.  Information about the law is checked for legal accuracy as at the date the article is prepared but may become outdated as laws or policies change.  For clarification or for legal or other professional assistance please contact Sherrard Kuzz LLP.

[1] The WSIB finding a worker is entitled to benefits can significantly increase costs for employers. The WSIB determines premiums based on both the employer’s industry class and individual claim experience.

[2] Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A.

[3] 2025 ONWSIAT 335.

[4] 2019 ONWSIAT 1167.

[5] 2022 ONWSIAT 542.

[6] Interpaving Ltd. v Workplace Safety and Insurance Appeals Tribunal, 2023 ONSC 5162.