In Puddicombe, the Nova Scotia Court of Appeal extensively used the principles laid down in C.P.R. and Gellately as discussed supra. Due to the general language used in the test phrase, courts refuse to limit the test phrase to a "set of rules or even firm guidelines."234 The test phrase has to be applied in the particular context of workers' compensation law and if not interpreted in that light could be "viewed as being concerned simply with the employee's contractual duties."235 In the context of workers' compensation law, interpretation will be too narrow and inappropriate if
"arising out of employment" is purely seen as a question of whether the work was the cause of the injury.236
Generally, injuries sustained on the way to and from work fall in the employee's personal domain and "do not arise out of or in the course of employment."237 This is so because working hours normally start upon reaching the workplace and the employee is not paid for travel time as it does not form part of his contractual duties. Furthermore, the risks involved in travelling to work are not causally connected to the employment.238
In citing Gellately, two aspects of the enquiry are identified: "the nature of the work and the link between the activity of the employee giving rise to the injury and the risk of the work."239 In addition, to consider whether the employee was discharging his duties under his employment contract, all factors incidental to it should be taken into account; and if applied to the facts of the case, it became clear that the employee was exposed to an additional risk when travelling to work on an emergency call out by his employer although he was neither paid for it nor did travelling from his residence form part of his contractual duties.240
234 Puddicombe[25].
235 Ibid[26].
23<5 Ibid[26],
237 Ibid[36] and as cited from C.P.R.
23s Ibid[36], 239 Ibid[37], 2« ibid[38]—[41],
3.4. Migrant labour
Migrant labour in Canada includes not only inter-province migration within the Canadian federation but also immigrants from other countries working in Canada.
Canada established the Seasonal Agricultural Worker Program in 1966 according to which agricultural workers241 from Jamaica could work for a maximum of eight months at a time in Canada but could return each year.242 By 1970 the program was extended to include Mexicans and currently the program (according to which all working conditions and benefits of employment should be equal to Canadian citizens and permanent residents) includes workers from Mexico and the Caribbean countries of: Anguilla, Antigua and Barbuda as well as Barbados, Dominica, Grenada, Jamaica, Montserrat, St. Kitts-Nevis, St. Lucia, St. Vincent and the Grenadines and Trinidad and Tobago.243 In 2002 a pilot immigration project was introduced and currently immigrants from about 80 countries enter Canada to take up lower skilled job opportunities.244 However, it is not limited to lower skilled staff as highly trained and skilled people in information technology in the banking sector as well as health care providers are hired under the Temporary Foreign Worker Program.245 As the immigrants, temporary or other, may not be treated less favourably than Canadian citizens and permanent residents, it follows that equal treatment of occupational injuries and diseases and the benefits attached to it, have to be equally favourable and it will be adjudicated upon according to the applicable compensatory act with jurisdiction.
241 Dean, D. 2013. Canada treats migrant workers horribly. Vice website: Ontario: Canada. The website reports that although more than 50 agricultural immigrants died in workplace accidents since 1996, no coroner’s inquests have been held in connection with the death of farm workers. Retrieved on 20/09/2013 from http://www.vice.com/en_ca/read/canadas-migrant- workforce-has-very-few-rights. See further Chapter 4 paras 2.4 & 4.4 and Chapter 5 paras 2.10;
3.7 & 4.7.
242 CBC News. 2012. Migrant workers: Who they are, where they're coming from. Toronto: Ontario.
Retrieved on 20/09/2013 from http://www.cbc.ca/news/canada/migrant-workers-who-they- are-wher e-they-re-coming-from-1.1137930.
243 Ibid. See also Canada (Federation) website. Employment and Social Development. [Sa], Hiring seasonal agricultural workers. Retrieved on 21/09/2013 from http://www.esdc.gc.ca/eng/
jobs/foreign_workers/agriculture/seasonal/index.shtml.
244 Ibid.
245 Valiani, S. 2013. RBC only one o f many Canadian employers misusing temporary migrant workers.
Toronto: Star Newspapers. Retrieved on 28/09/2013 from http://www.thestar.com/opinion/
commentary/2013/04/15/tempor ary_foreign_worker_problem_goes_well_beyond_rbc.html.
Immigrants from countries other than the Canadian Federation should be distinguished from citizens and people with permanent residency moving between jurisdictions within Canada. The federal governmental system of Canada could have had the unjust result of prohibiting employees from compensation when injured in the course of employment while moving or working in a different jurisdiction than the one in which they are usually employed or normally reside. To prevent such, provision has been made for a right to compensation to cover trans-border injuries by entering into the Interjurisdictional Agreement on Workers' Compensation by all the Workers’ Compensation Boards. The Boards undertake to:246
ensure that through the provisions of this Agreement and mutual co
operation, no worker disabled as a result of injury or disease causally related to employment in Canada, is denied fair and equitable compensation..
Specific provision is made in the Government Employees Compensation Act247 for federal government employees by providing their claims to be administered and adjudicated by the provincial compensation authority in which the employee is normally employed.248 Government employees normally employed outside the borders of Canada e.g. diplomatic services are compensated by the Ontario compensation authority. People employed by the Canadian Federal Government in foreign countries who are citizens of the host country, will be covered by the compensatory scheme of the foreign country unless such country does not have a scheme, in which case, the foreign worker will be covered by the Government Employees Compensation Act section 7.249 COIDA does not have similar provisions.
246 Association of Workers' Compensation Boards of Canada. 2008. Interjurisdictional Agreement on Workers’ Compensation. 1.4.1. Retrieved on 25/05/2012 from http://www.awcbc.org/common/
assets/english%2 Opdf/ija_consolidated_agreement.pdf.
247 Government Employees Compensation Act, RSC 1985, c G-5.
248 Ibid. The Act defines "compensation" to include "medical and hospital expenses and any other benefits, expenses or allowances that are authorized by the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen."
249 Ibidat s 6: ‘‘Where an employee, other than a person locally engaged outside Canada, is usually employed outside Canada, the employee shall for the purposes of this Act be deemed to be usually employed in the Province of Ontario.” See also Canada (Federation). [Sa]. Labour Program. Retrieved on 25/05/2012 from http://www.labour.gc.ca/eng/health_safety/
compensation/local.shtml.
Alberta specifies in section 52 that payment of compensation may be terminated by the Compensation Board if an employee to whom compensation was awarded resides outside Canada unless:
(a) the worker provides medical evidence in a manner satisfactory to the Board confirming the continuation of the disablement and the Board is satisfied that the period of disablement is not prolonged by the worker leaving Alberta, or
(b) the worker has been granted an award for permanent disability arising out of the accident
This section differs thus to section 23 of COIDA in that it is not limited by time and that the pension may be continued upon the submission of prove of the continued permanent disability. However, section 53 of the Alberta Act, provides for the continuation of payment of compensation to persons residing outside Canada.
However, the Acts of Ontario, Prince Edward Island, Quebec and Yukon are silent on the portability of compensation should a worker leave the jurisdiction after compensation for permanent disablement has been awarded.
Manitoba provides extensively for workers who are injured outside their jurisdiction in section 5(3) which, similarly to COIDA, provides for accidents during temporary absence from Manitoba. Section 5(4) refutes compensation to workers injured during non-work-related activities whilst outside Manitoba and who are employed by employers whose main businesses are not within Manitoba. In contrast to this provision, section 6(4) specifically provides for the Board to pay compensation subject to its discretion if an injustice would otherwise result where an employee failed to make an election if entitled to claim compensation in another country or place. New Brunswick (section 9) specifically includes accidents that happen in the "United Kingdom of Great Britain and Northern Ireland".
Newfoundland and Labrador covers the workers of employers who carry on business within their area of jurisdiction if injured at work outside the province (section 51) and, very importantly, according to section 50 provides that compensation will not cease if a worker leaves the jurisdiction.
The Northwest Territories’ Act (section 21), on the other hand, requires a worker to return to its jurisdiction for purposes of medical examinations at the workers' own costs if the claim is lodged after leaving Canada and provides for compensation if the worker is injured in a foreign country in sections 22-23. Saskatchewan requires the worker to present himself periodically for continuation of compensatory benefits (section 37).
Similarly to COIDA, The Acts of Nova Scotia (section 19-25), Ontario (sections 18
20), Prince Edward Island (sections 7-8), Quebec (section 8) and Saskatchewan (section 35-36) require the worker to be domiciled within its jurisdiction or the employer to have his establishment within the area of their jurisdictions, while Ontario (section 19), Prince Edward Island (section 7) and Yukon (section 7) limit the right to a claim, similarly to COIDA, to temporary absence for work from their respective provinces.
It follows that although extensive provisions are in place for coverage of employees within the Canadian Federation, cognisance is being taken of the needs of immigrants from other foreign countries. This is so because Canada provides for similar treatment and benefits of employees entering Canada (irrespective of the province) to employees who are citizens or permanent residents of Canada for both temporary as well as permanent employment. The requirement of similar treatment and benefits includes the realm of compensation for occupational injuries and diseases.
Although a number of the provisions referred to supra are similar to COIDA, the general trend is a wider coverage than COIDA with specific provisions made for Government employees working abroad, foreigners working for the Canadian Government in foreign countries and the provisions made for the portability of compensation benefits.
3.5. Summary
It is clear from the discussion above that Canadian compensatory legislation finds broad application with extended coverage.
Elements to be taken into account in fulfilling the requirements in the definition and test phrase are:250
• an injury; and
• sustained in circumstances that need to be arising out of and
• in the course of employment.
An important added feature is the inclusion of a rebuttable presumption with regard to the two elements of the test phrase that has the working of one element having been satisfied, the other will be presumed to be satisfied unless otherwise proven.251
Despite the limiting effects of the test phrase, Canadian Acts provide for a broadening of eligibility for claims in the form of:
• commuting injuries;252
• serious disablements sustained despite misconduct;253
• transgression of labour laws;254
• provision for emergency services;255
• an irrefutable presumption in respect of a dead body found at the workplace;256
• trans-border compensation.257
Canada and South Africa share a historical connection both in the applicable principles on compensatory legislation as well as certain early English rulings.258 It has however been differently developed in each of the countries.
The definition of an injury and the test phrase in the Canadian compensatory legislation is nearly as limited as the South African equivalent but in Canada as in South Africa, the courts interpret it broad and generous259 and the Canadian right to 250 Par 3.1 supra.
251 Chapter 4 fn 156-164 supra.
252 Chapter 4 para 3.3.6 supra.
253 Chapter 4 paras 3.2.3; 3.3.3 & 3.3.4 supra.
254 Chapter 4 para 3.3.5 supra.
255 Chapter 4 fn 217 supra.
256 Chapter 4 para 3.3.1 supra.
257 Chapter 4 para 3.4 supra.
258 Chapter 4 para 3.2.4 supra.
259 Chapter 4 para 3.2 supra.
compensation is much broader than the South African right due to the working of presumptions260 and the inter-jurisdictional agreement.261
4. AUSTRALIA
4.1. Statutory definition of an injury: the test
The Australian compensatory laws with its common law history initially used the test phrase similar to COIDA but it developed very broadly in legislation and case law to a point where the need was identified for amendments intending to narrow the test and limit the right to compensation to injuries sustained in circumstances where the nexus with employment can be proved.
The Australian compensatory laws (except South Australia which uses the term
"disability"262) require the existence of an "injury" and not an "accident" and define it in the New South Wales Act as:263
In this Act: "injury":
(a) m eans personal injury arising out o f o r in the course of employment, (b) includes:
(i) a disease which is contracted by a w orker in the course of employment and to which the em p lo y m en t w as a co n trib u tin g factor, and
(ii) the aggravation, acceleration, exacerbation or deterioration o f any disease, w here the em p lo y m en t w as a co n trib u tin g fa c to r to the aggravation, acceleration, exacerbation or deterioration, and
(c) does not include (except in the case o f a w orker employed in or about a mine) a dust disease, as defined by the W orkers’ Compensation (Dust Diseases) Act 1942, or the aggravation, acceleration, exacerbation or deterioration o f a dust disease, as so defined.264
260 Chapter 4 fn 1 5 6 -1 6 4 supra, 261 Chapter 4 para 3.4 supra.
262 South Australia s 30. Western Australia refers to "a personal injury by accident arising out of or in the course of employment..."
263 New South Wales s 4.
264 Own emphasis.
"Injury" bears its normal meaning, interpreted liberally but an additional requirement is introduced by the term "contributing factor".265 The nexus between employment and injury is a requirement of all the Acts to establish a right to compensation. However, all the jurisdictions in Australia changed266 the text of their legislation from the conjunctive phrase "out of and in the course o f to the disjunctive form: "out of or in the course o f';267 and in doing so broadened the test through reducing the two-folded test to a single test if an injury has been proved.
The test has recently been narrowed by the introduction268 of a further requirement in the form of "a substantial employment relationship" the extent of which is clear from the New South Wales Act,269 in section 9A:
9A No compensation payable unless employment substantial contributing factor to injury
(1) No compensation is payable under this Act in respect of an injury unless the employment concerned was a substantial contributing factor to the injury.
(2) The following are examples of matters to be taken into account for the purposes of determining whether a worker’s employment w as a substantial contributing factor to an injury (but this subsection does not limit the kinds of matters that can be taken into account for the purposes of such a determination):
(a) the time and place of the injury,
(b) the nature of the work performed and the particular tasks of that work,
265 Own emphasis. Commonwealth s 5A; Australian Capital Territory s 31(1}; New South Wales s 1;
Victoria s 4(1); Queensland s 32; Western Australia s 5; South Australia s 30(2); Tasmania s 25;
Northern Territory s 3(1) & New South Wales s 4(1).
266 Safe Work Australia. 2011. Comparison o f workers’ compensation arrangements in Australia and New Zealand.Canberra: Safe Work Australia. At 10 it is indicated that the wording was changed already in 1946 in Victoria. Hereinafter: Comparison o f WC arrangements 2011. Retrieved on 30/07/2011 from http://safeworkaustralia.gov.au/AboutSafeWorkAustralia/WhatWeDo/
Publications/Pages/comparison2011.aspx.
267 Own emphasis. Commonwealth s 5A; Australian Capital Territory s 31(1); New South Wales s 1;
Victoria s 4(1); Queensland s 32; Western Australia s 5; South Australia s 30(2); Tasmania s 25;
Northern Territory s 3(1) & New South Wales s 4(1). Purse 2011 at 239 considers the change to the test phrase by replacing "and" by "or" as one of the two most important changes to Australian compensatory law post World War II; the other being coverage for journeys to and from work sites.
268 This limiting requirement has been introduced by all the jurisdictions in various ways with wording such as : "substantial contributing factor" in New South Wales and the Australian Capitol Territory; "a significant contributing factor" in Victoria and Queensland; "a significant degree” in Western Australia and the Commonwealth; “on the balance of probabilities" in South Australia; "a substantial degree" in Tasmania and "a material degree" in the Northern Territory but all with the intention to require prove of the employment relationship in order to exclude diseases and injuries of ordinary origin of life.
269 In following the Victorian example.
(c) the duration of the employment,
(d) the probability that the injury or a similar injury would have happened anyway, at about the same time or at the same stage of the worker’s life, if he or she had not been at work or had not worked in that employment,
(e) the worker's state of health before the injury and the existence of any hereditary risks,
(f) the worker’s lifestyle and his or her activities outside the workplace.
(3) A worker's employment is not to be regarded as a substantial contributing factor to a worker’s injury merely because of either or both of the following:
(a) the injury arose out of or in the course of, or arose both out of and in the course of, the worker's employment,
(b) the worker's incapacity for work, loss as referred to in Division 4 of Part 3, need for medical or related treatment, hospital treatment, ambulance service or workplace rehabilitation service as referred to in Division 3 of Part 3, or the worker’s death, resulted from the injury.
(4) This section does not apply in respect of an injury to which section 10, 1 1 or 12 applies.
In some jurisdictions, the requirement of employment to be a "substantial" or
"significant" contributing factor applies to both injuries and diseases while in others only to diseases.270
4.2. Interpretation through case law
Although other aspects have the benefit of more or less a hundred years of authorities, some aspects previously decided still need to be reconsidered by the courts as the aspect of injuries happening during an interlude between periods of work. The Australian Compensation Authorities have, similar to the Canadian Authorities, the benefit of policy manuals that fully explain the ordinary interpretation and application of the different compensatory Acts.271
270 Western Australia s 5; South Australia s 30A(a); Tasmania s 3(2A); Northern Territories s 4(7);
Australian Capitol Territory s 31(2) & Commonwealth s 5B.
271 Australian Government (Commonwealth). Minister for Employment and Workplace Relations.
2002. Safety, Rehabilitation and Compensation Directions 2002. Retrieved on 24/08/2012 from http://www.comlaw.gov.au/Details/F2008B00376.
Commonwealth of Australia: Comcare Regulation Policy 2011. Retrieved on 10/02/2012 from http://www.comcare.gov.au/_data/assets/pdf_file/0008/127745/OHS50_00772_Augl0_v31F INALpdf.
Interpretation by the courts is still to be settled on the recently-introduced requirement that the employment relationship needs to be a "substantial contributing factor"272 to the injury.
4.2.1. K avanagh v Com m onwealth
The High Court of Australia interpreted "injury by accident" and "in the course of his employment" in Kavanagh v Commonwealth273 (hereinafter: Kavanagh) with Dixon CJ citing the Act providing that if an employee sustained an injury by accident arising out of or in the course of employment, liability will arise for the payment of compensation with the word “injury" to mean "any physical or mental injury"
inclusive of an "aggravation, acceleration or recurrence" of a prior injury.274 Kavanagh died in hospital as a result of bronchopneumonia and heart failure due to
inclusive of an "aggravation, acceleration or recurrence" of a prior injury.274 Kavanagh died in hospital as a result of bronchopneumonia and heart failure due to