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.
(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.
As previously discussed, Section 10 of the Worker’s 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. One of most litigated issues with respect to this bar arises when people are in collisions commuting to and from work. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such a scenario.
In this week’s case (Franzke v. Workers’ Compensation Appeal Tribunal) the Plaintiff was injured while driving home from her usual place of employment. She was employed in the insurance industry. Her job required her to have a Driver’s Licence and to occasionally work away from the office.
On the day of the collision the Plaintiff left her office early in the face of an expected snow storm. She took files home with her with an intention of working from home for the balance of the day and depending on road conditions perhaps for some time beyond that.
In the course of her lawsuit the Defendants argued that these circumstances brought the commute within the “course of employment” stripping her of the right to sue. The matter was put before the Workers Compensation Appeal Tribunal (WCAT) who agreed. While WCB’s Policy 18 states in part that “the general position is that accidents occurring in the course of travel from the worker’s home to the normal place of employment” is not an activity in the course of employment here the Plaintiff’s intention to work from home was crucial with WCAT finding that “the intention of the worker was given significant weight and was determinative“.
The Plaintiff asked the BC Supreme Court to review this decision arguing that it was patently unreasonable. Madam Justice Ross disagreed and refused to disrupt WCB’s decision. In doing so the Court reached the following conclusion: I have concluded that the Original Decision was not patently unreasonable and that the hearing was fair with no denial of natural justice. In addition, I have concluded that the decision of the Reconsideration Panel to dismiss the application for reconsideration was correct. In the result, the petition is dismissed.
When a party succeeds in a BC Supreme Court lawsuit the losing party usually has to pay the winner’s ‘costs and disbursements‘. Disbursements are the out of pocket expenses incurred in moving the lawsuit forward. (common disbursements include Court filing fees and the costs of medical reports).
What if your case is complex and your lawyer needs to hire an additional lawyer to properly advance your case? Is this extra legal expenses a reasonable disbursement? Reasons for judgement were released today by the BC Court of Appeal addressing this topic.
In today’s case (Baiden v. Vancouver) the Plaintiff was injured at the hands of the Vancouver Police. Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”. A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment. In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action. This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit. That is exactly what happened in today’s case.
Before heading to WCAT the Plaintiff’s lawyer hired an additional lawyer to assist with the process. Ultimately the WCAT hearing was successful for the Plaintiff and the case proceeded to trial. After judgmenttThe trial judge awarded the Plaintiff $8,400 to compensate him for the additional fee of hiring a second lawyer to deal with the WCB issue. (You can click here to read my article summarizing the trial judge’s reasons)
The Defendants appealed arguing that the judge was wrong in awarding this as a disbursements. The BC Court of Appeal agreed with the Defendants and overturned the trial judge. In doing so the BC High Court provided the following reasons making it clear that the expense of multiple lawyers will rarely be considered a reasonable disbursement:
 The limited authority on this issue in this province supports the view that if counsel retains another lawyer to perform a specialized function due to his or her own lack of experience, it does not follow that such fees are recoverable from the opposing party, but remains a matter between the original lawyer and his client: Noble v. Wong, Bell v. Fantini (1981), 32 B.C.L.R. 322 (S.C.). That is a practical and appropriate approach, and should have been followed here. Outsourcing portions of legal work during litigation and then permitting recovery of that lawyer’s fees as a disbursement undermines the policy of party and party costs. While there may be cases in which this can be justified, they would be limited and exceptional.
 This is not such a case. I would therefore allow the appeal, and set aside the order permitting Mr. Baiden to recover Mr. Ishkanian’s fees of $8,400 as a disbursement.
When a person is injured through the fault of another in British Columbia the injured party generally has the right to make a claim for compensation against the at fault party through our Civil Litigation system (ie. a tort claim through the Courts).
There are some exceptions to this and one such exception is found in section 10 of the Workers Compensation Act. Generally speaking, Section 10 prohibits a worker who is injured in the course of employment from suing a responsible party who was also in the course of employment at the time of the injury. (I should point out that there are some exceptions to this general rule). This statutory bar can be a complete defence to a tort claim arising from a motor vehicle accident and reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Dhanoa v. Trenholme) the Plaintiff was injured in a 2006 BC Car Crash. She was “walking through a parking lot owned by her employer when she was struck by the Defendant who was driving a motor vehicle at that time and who also works for the same employer“.
The Plaintiff sued the Defendant for her injuries and damages. The Defence lawyer, in responding to the claim, raised s. 10 of the Workers Compensation Act. When this defence is raised in a BC Lawsuit the issue of whether both parties were workers must be decided by the Workers Compensaiton Appeal Tribunal (WCAT). WCAT decided that both Plaintiff and Defendant were in the course of their employment when the crash happened. With this decision in hand the Defendant’s lawyer applied to dismiss the lawsuit and succeeded. In dismissing the claim Mr. Justice Cole awarded the Defendant full costs of defending the lawsuit.
In doing so Mr. Justice Cole made the following useful points with respect to the practical procedural consequences that are created when a s. 10 defence is raised in an ICBC Injury Claim”  The case law is clear that merely pleading a s. 10 defence does not itself bar the litigation. The WCAT has the exclusive jurisdiction to determine the “worker vs. worker” issue and the action remains ongoing unless and until the WCAT renders a decision that would bar the action. I am of the view that if the plaintiff does not want the defendant to run up costs in the meantime, the plaintiff is at liberty to make an application for a stay of the proceedings until the Workers’ Compensation Board issue is decided…
 Based on the foregoing review of the relevant authorities, it is clear that the WCAT proceeding is a step within the action which is mandated by legislation. A stay of proceedings pending this step, however, is not automatic when the s. 10 defence is pled: Hommel, at paras. 38 and 46. Therefore, to presume there is a stay and say counsel should not be taking steps for the upcoming action is wrong in law. Unfortunately, the decision in Khare does not appear to consider the authorities that were provided to the Master in the present case and because the decision in Khare was delivered orally without the opportunity to fully consult authority, I am not bound by it: Re Hansard Spruce Mills Ltd.,  4 D.L.R. 590, 13 W.W.R. (N.S.) 285 (B.C.S.C.).
 I am of the view that because each case is unique, it would be wrong to set a blanket rule that a party claiming costs cannot recover on any proceedings initiated by them after a s. 10 Workers’ Compensation Board defence is raised, as it would be too draconian. There may be legitimate reasons to take steps in a proceeding and if those steps are unfair, either party can apply for a stay.
This case goes to show that, where the s. 10 WCB defence is raised in an ICBC Injury Claim it may be in the parties best interests to have the issue resolved early in the process to minimize costs consequences for unsuccessful party.
(Please note the case discussed in the below article was overturned by the BC Court of Appeal. You can find my summary of the Appeal Judgement here)
Very interesting reasons for judgment were released today by the BC Supreme Court dealing with the recovery of legal fees after a BC Personal Injury Lawsuit. Before getting into the facts of this case, however, some brief background is necessary.
Generally speaking when a party sues and succeeds in a BC Supreme Court lawsuit he/she is entitled to Court “Costs” which compensate the successful party for having to go through the hassle of a formal lawsuit.
These “costs” have nothing to do with the party’s actual lawyer fees, rather they are set by a Tarriff and the amount of costs the party is entitled to is generally tied to the number of steps they took in the lawsuit. In addition to ‘costs’ a successful litigant is entitled to claim reasonable disbursements (money spent on advancing the case such as court filing fees, expert witness costs etc.).
Interesting reasons for judgement were released today dealing with whether a litigant’s actual expense for hiring a lawyer could be recovered after a lawsuit. The general answer to this question is no, however, on the unique facts of this case the Plaintiff was entitled to recover the actual costs of hiring one of his lawyers as a disbursement.
In today’s case (Baiden v. Manji et al) the Plaintiff sued various defendants for personal injuries. Before the matter could proceed to trial the Defendant’s raised a “s. 10 WCB Defence”. A section 10 defence, when successful, prevents a plaintiff from suing in court where the Plaintiff is injured while acting within the scope and course of his/her employment and the at fault entity is also a person or employer that caused the accident in the course of their employment. In these circumstances the Plaintiff must turn to WCB for compensation.
Once this defence is raised, BC Courts cannot deal with its merits rather under s. 257 of the Workers Compensation Act the Workers Compensation Appeal Tribunal (WCAT) has the exclusive jurisdiction to determine the status of parties to a legal action. This is frustrating to Plaintiffs because if this defence is pursued the lawsuit is basically put on hold, a hearing has to be had at WCAT, and only if the defence fails at WCAT can the Plaintiff carry on with their lawsuit.
In today’s case this is exactly what happened. The Plaintiff had to go through with a WCAT hearing before his lawsuit was heard in court. In doing so the Plaintiff hired a second lawyer to deal with the WCAT. His legal bill for this second lawyer came to $8,400.
The s. 10 defence did not succeed and the WCAT found that “the injuries to the plaintiff did not arise out of and int he course of his employment”. The Plaintiff then proceeded to trial. At the end of trial the Plaintiff asked the Court to allow the $8,400 as a disbursement. Mr. Justice Chamberlist concluded that this was a reasonable disbursement and allowed the Plaintiff to recover this cost. Specifically the Court reasoned as follows:
I am of the view that having reviewed the legislation applicable to hearings before WCAT that this is a situation where it is necessary that specialist counsel be hired to deal with the issue.
 The Act discloses, through various sections, that the appeal tribunal is not a court of law like the Supreme Court of British Columbia…
 These very simple observations exemplify the difference between proceedings in the Supreme Court of British Columbia and proceedings under the Workers Compensation Act.
 As a result, I find attendances before the Workers’ Compensation Board and WCAT would be quite different from appearing in court and, as such, represent a need for specialization. …
As I have indicated above, a lawyer may be very competent in Supreme Court where he or she has been taught and practised the importance of legal precedent and is familiar with the rules of admissibility of evidence. Section 246.1 and s. 250 of the Act obviously disclose some of the differences in appearing before WCAT and appearing before the Supreme Court….
it is not always the case that a disbursement for legal fees paid to another lawyer and reasonably incurred will be disallowed. Experienced litigators should leave nothing to chance. …
 The fact is that only after some years that Mr. Ward had been counsel for the plaintiff was s. 10 of the WCA brought into issue. The affidavit filed by the plaintiff discloses that Mr. Ward had never before dealt with the WCAT.
 I have reviewed the various submissions made to WCAT as set out in the affidavit of Karin Reinhold, along with the decision of WCAT, and I find that the retention of Mr. Ishkanian to act for the plaintiff before WCAT was reasonably incurred at the time and the account is reasonable.
 The sum of $8,400.00 is allowed as a disbursement in this action.
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When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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