Section 10 WCB Bar Fails to Protect Ministry of Solicitor General
(Update June 19, 2013 – the below decision was overturned in reasons for judgement released today by the BC Court of Appeal)
As previously discussed, Section 10 of the BC Workers Compensation Act can strip people of their right to sue if they are injured in the course of their employment by someone else in the course of their employment.
When a police officer in the course of their duties injuries someone through negligence they may be subject to this bar. However, when an RCMP officer is negligent they usually enjoy personal immunity from lawsuits and instead the injured party needs to look to the Minister of Public Safety and Solicitor General for compensation who are exposed by statute for liability when RCMP members are negligent in the course of their duties. (Note: this Ministry has recently been overhauled and renamed the Ministry of Justice)
Interesting reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, discussing the interplay of the WCB Bar to lawsuits and actions against the Minister of Solicitor General for negligence of RCMP officers.
In last week’s case (Aitken v. Bethell) the Plaintiff was seriously injured while sitting in a parked vehicle. The RCMP were in pursuit of the Defendant Bethell who lost control of his vehicle, colliding with another, and eventually causing a collision with the Plaintiff’s vehicle. The Plaintiff sued various parties including the police officer.
Both the Plaintiff and the Police officer were found to be in the course of their employment at the time of the crash. The Minister of Public Safety and Solicitor General brought an application to have the lawsuit against them dismissed relying on the WCB section 10 bar. Mr. Justice Halfyard refused to do so finding that while the bar could prevent the lawsuit against the individual officer, the Minister did not enjoy the same immunity as they were not an ‘employer‘ and their liability was created by virtue of statue. In permitting the claim to proceed Mr. Justice Halfyard provided the following reasons:
I have attached s. 10(1) of the Act as an appendix to these reasons. It seems to me that, in a negligence action for damages for personal injury, in order for a defendant to succeed in this defence, it must be established:
a)that the plaintiff, at the time of the alleged injury, was a “worker;”
b)that the alleged injury “[arose] out of and in the course of [the plaintiff’s] employment;”
c)that the defendant was the plaintiff’s employer, or the plaintiff’s co-worker, or “any employer within the scope of this Part” (i.e., Part 1 of the Act), or “any worker;” and
d)that the conduct of the defendant which is alleged to have caused the injury “arose out of and in the course of employment within the scope of this Part” (i.e. Part 1 of the Act).
Where the statutory bar applies in favour of a defendant, the plaintiff cannot maintain his or her action as against that defendant. The plaintiff is restricted to making a claim for workers compensation in respect of the injury caused by that defendant.
It appeared to be common ground that, if the Minister was an employer within the meaning of the Workers Compensation Act, then s. 10(1) would be an absolute bar to any action being brought against him by the plaintiff, i.e., a “worker,” (for any tort allegedly committed by him or by a police officer), even though neither the government nor the Minister was the employer of the police officers involved. The potential scope of the statutory bar appears to be broad…
It seems to me that the Court of Appeal is saying, by necessary implication, that the province cannot be vicariously liable under s. 11 of the Police Act, and that only the Minister can be. If that is so, then on hindsight, it would appear that Mr. Justice Macaulay should not have granted judgment against both the government and the Minister, but should only have found the Minister to be vicariously liable. To my mind, that result cancels out the argument of the applicants based on Hill v. Hurst.
If the plaintiff had sued the Government of British Columbia (which would have to be named as “Her Majesty the Queen in Right of the Province of British Columbia”: s. 7 of the Crown Proceedings Act), the finding of WCAT that the government was an employer within the meaning of the Workers Compensation Act could have the legal effect of entitling the government to the statutory bar in s. 10 of the Act (but only if the conduct of the government, or its servant or agent, was a cause of the injury, and that conduct “arose out of and in the course of employment”). But the plaintiff has not sued the government, nor could he have sued the government, in my opinion. I am not persuaded that the Minister should be accorded the status of an employer for the purpose of s. 10(1) of the Act, simply because the government is an employer and because the Minister is the designate, or is the agent of, the government for the purposes of the Police Act.