The High Cost of a Successful WCB Defence in a Personal Injury Lawsuit
As previously discussed, Section 10 of BC’s Workers Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment. If this defence is raised and succeeds in a personal injury lawsuit the claim will be dismissed exposing a Plaintiff to ‘loser pays’ costs consequences. Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this reality.
In this week’s case (McKay v. Marx) the Plaintiff was injured in a 2005 collision. His vehicle was rear-ended by a Fed Ex vehicle. The Plaintiff sued for damages. There was no dispute that the Defendant was in the course of employment when the crash happened. The defendant argued that the plaintiff was also a ‘worker’ and therefore his right to sue was stripped away. The issue was sent to WCAT for determination who ruled that the Plaintiff was indeed a worker.
Given WCAT’s findings the Plaintiff’s lawsuit was dismissed. The Defendant applied for costs and ultimately was successful. In doing so Madam Justice Dorgan provided the following reasons:
 The circumstances in which the plaintiff found himself are unfortunate and they garner some sympathy. However, the authorities explicitly prohibit this court from denying costs by exercising discretion out of a sense of fairness or sympathy or a comparison of the relative economic strength of the parties.
 In summary, the defendants successfully pled a s. 10 Workers Compensation Act defence and are thus the substantially successful party ?? the winner of the event. The evidence as presented falls short of demonstrating such reprehensible conduct on the part of the defendants that would allow the court, in the exercise of its discretion, to depart from the general rule. Accordingly, the defendants are entitled to costs.