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WCB and injuries suffered en route to a work retreat

If your plane crash-lands on the way to a work retreat, can you sue the company who operates the plane for the negligence of its workers? Or are your claims limited to workers’ compensation? This question can arise in motor vehicle claims: if you are driving to a work retreat, and injured by someone who drives for work, are you able to sue – or is your compensation limited to WCB?

When someone is injured in BC, they generally have a right to sue the at-fault party. However, there are some exceptions to this, including exceptions for those entitled to WCB compensation subject to the surrounding policies. Section 10 of the Workers Compensation Act prohibits workers in the course of employment from suing if the at-fault party was also in the course of employment when the injury occurred. There are some exceptions to this general rule against workers suing workers, but that’s beyond the scope of this summary.

In a decision released earlier this week (Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal) 2016 BCSC 1216), six co-workers were passengers on a plane that crash-landed on Russ Baker Way in Richmond, BC. They had departed from Vancouver Airport, and were en route to an annual company retreat at Sparkling Hills near Vernon, BC.  They had chartered this plane to take them to the Kelowna Airport.

The passengers sued the charter company for the injuries they sustained in the crash-landing.  The liability of the charter company depended on whether the parties were subject to WCB coverage for their injuries. If so, the company would have been off the hook due to that Workers Compensation Act section which bars workers from suing other workers and their employers. Obviously the at-fault parties were workers in the course of employment when providing the charter plane services. At issue was whether the passengers were workers in the course of their employment when they were injured.

The initial decision made by WCAT concluded that the parties were workers, but that they were not in the course of their employment when they were injured. The charter company appealed this decision to the BC Supreme Court. In affirming the WCAT decision (by concluding that it was not patently unreasonable), Madame Justice Baker considered whether the mixed evidence supported a finding that WCB coverage does not extend to injuries that occur during educational or training courses:

[20]         One of the topics covered by Policy Item #C3-21 is titled “Educational or Training Courses”.  This Policy is quoted extensively in the WCAT decision starting at paragraph 101, but I set out a portion here:

  1. Education or Training Courses

Compensation coverage does not generally extend to injuries or death that occur during educational or training courses.  Such courses are generally for the worker’s own benefit, and are not considered to have sufficient employment connection as to be compensable.

  1. Education Sufficiently Connected to the Employment

However, some types of educational or training courses may be sufficiently connected to the worker’s employment as to be considered part of that employment.  Consideration is then given to the factors in C3-14.00 and any other relevant factors not listed in policy, and the evidence is weighed to determine whether the injury or death arose out of and in the course of employment.

Factors that weigh in favour of coverage for injuries or death sustained during educational or training courses include whether the education or training:

– took place on the employer’s premises;

– was for the benefit of the employer’s business;

– was undertaken at the direction of the employer;

– involved using equipment supplied by the employer;

– was during a time period for which the worker was being paid;

– was paid for by the employer; or

– was considered by the employer to be part of the worker’s job.

No single factor is determinative.  In marginal cases, it is impossible to do better than weigh the employment features of the education or training against the personal features to reach a conclusion as to whether the test of employment connection has been met.  (bold added)

[21]         I have highlighted the final sentence above because, in my view, this was one of those “marginal cases” that required WCAT to weigh the employment or business features against the personal features of the Individual Respondents’ involvement in TEC to arrive at its conclusion as to whether the injuries sustained by the Individual Respondents arose out of and in the course of employment.

                ….

[53]         In my view, paragraphs 134 to 136 set out the ratio of the WCAT decision.  WCAT acknowledged that the evidence was “mixed” − that there were factors favouring the position taken by the Petitioner; and factors favouring the position taken by the Individual Respondents.  WCAT weighed the conflicting evidence and for the  reasons given, concluded that the weight of the evidence supported a conclusion that the personal features of the Individual Respondents’ participation in the education and training provided by TEC were predominant; and that WCAT should apply the general policy that compensation coverage does not extend to injuries that occur during educational or training courses.

[54]         In Anderson v. British Columbia (Workers’ Compensation Appeal Tribunal), 2015 BCSC 1443, Justice Fenlon heard, among other submissions, an argument that the reasons of the Tribunal were inadequate.  She concluded that there was more than enough evidence to support the findings made by WCAT.  In her conclusions, she stated:

  1. Finally I note that the issue before me on this judicial review is whether the decision that the altercation arose out of and in the course of employment is patently unreasonable.  That is the question.  The issue is not whether each fact leading up to the conclusion is patently unreasonable: Kovach v. BC (Workers’ Compensation Board), [2001] 1 S.C.R. 55.
  1. I have addressed and considered each of the challenged facts on the basis of whether it was patently unreasonable for the adjudicator to have found those three facts.  I have done so because that is how the petitioner argued the case.  Nonetheless, the analysis at the end of the day requires me to step back and consider the overall decision that is contained in the certificate, the overall decision that the altercation in issue arose out of and in the course of employment.  That decision is soundly and thoroughly supported on the evidentiary record and in the reasons of the Tribunal.

[55]         While there was evidence supporting the contrary position taken by the Petitioner, I am of the view that there was also ample evidence supporting the conclusion reached by WCAT.  It is not the task of this Court to re-weigh the evidence.  I am also of the view that the decision sets out the path of reasoning followed by WCAT and adequately addresses the evidence and the arguments submitted by the Petitioner.  Read as a whole, the decision demonstrates careful consideration and weighing of the evidence; and application of the applicable statutory provisions and policies to the facts as found.

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