Restrictions on Tort Claims Under the Workers Compensation Act

Restrictions on Tort Claims Under the Workers Compensation Act by D. Lawrence Munn and Krista Prockiw at Clark Wilson LLP 800-885 West Georgia Street Vancouver, BC V6C 3H1 Canada Tel. 604.687.5700 Fax 604.687.6314 www.cwilson.com

I. INTRODUCTION Restrictions on Tort Claims Under the Workers Compensation Act D. Lawrence Munn and Krista Prockiw May 2004 The Workers Compensation Act, R.S.B.C. 1996, c. 492 creates a system intended to insure that persons who are injured while working receive proper treatment and compensation for their injuries. The system also provides a form of insurance for employers and limits the need to resort to the courts. Theoretically, when a worker, a term defined in the Act, is injured, he or she has an option whether to bring a tort action in the Courts or claim compensation under the Act. However, there is a significant exception to this basic rule: if the injury occurs in the course of employment, and the potential defendant in the tort action is another worker or an employer as defined in the Act, the injured worker will be limited to his or her remedies under the Act. Section 10 of the Act restricts the injured worker to the compensation available under the Act. Whenever a worker is injured by his or her own employer or by a fellow worker on the same job site, then there should be little doubt that section 10 applies. However, when a worker is injured while away from his or her usual job site and by another worker or employer, then it is not always apparent that section 10 applies. It is this latter situation to which insurers should be particularly alert. If section 10 applies and the proper steps are taken to determine whether it does apply, then a personal injury plaintiff will not be able to proceed to judgment. The Workers Compensation regime, and not the tortfeasor s liability insurer, will ensure that the injured worker is properly compensated. Whether section 10 applies is a decision that can only by made by the Workers Compensation Appeal Tribunal (the Appeal Tribunal ). A formal written application must be brought pursuant to section 257 of the Act and proper evidence is critical. If the Appeal Tribunal determines that section 10 applies, then it will provide a Certificate setting out its finding to the Court, which will then make an order staying the plaintiff s tort action. Set out below is an overview of the relevant provisions of the Workers Compensation Act, together with a review of the procedure for bringing an application and the evidence that will be required. II. THE ACT The relevant provisions of the Workers Compensation Act are set out in the Schedule to this Paper. Section 10 imposes the restriction on tort claims. It also deals with the Board s right to subrogate. Part 4 of the Act governs applications to the Appeal Tribunal.

p. 2 Definitions are set out in Section 1 of the Act, including definitions of employer, industry and worker. Section 2 of the Act defines the persons to which Part 1 applies. Part 1 of the Act governs the right to compensation. Basically, Part 1 applies to every employer and worker, unless specifically exempted. Sections 2(2) and 3 allow the Board to extend the application of Part 1 to independent operators and other groups of persons, such as those engaged in work study programs. Section 9 permits a worker to elect to receive compensation under the Act, if he or she is otherwise entitled, or proceed with a court action. Note that if the worker is precluded from bringing an action under section 10, there is no election to be made and the worker will be limited to the compensation available under the Act. III. RESTRICTIONS ON TORT CLAIMS When dealing with the limitations on a worker s right to bring a tort claim, section 10(1) is the key section of the Act. What section 10(1) does is take away a worker s right to bring an action (that would otherwise exist at law or pursuant to contract) when, in the course of employment, the worker is injured by another worker or an employer. The injured worker is limited to the compensation scheme provided by the Act. Since the compensation provided by the Workers Compensation Board pursuant to the Act is funded by employers (on behalf of their workers), it is, in essence, a form of insurance, and it follows that an injured worker is not allowed to sue another worker or employer, but must look to the insurance scheme set up by the legislation. Section 10(1) is relatively straightforward, but particular difficulties will arise in its application to a given set of facts. This is when an application to the Appeal Tribunal under section 257 of the Act will most likely be necessary. The procedure under section 257 will be discussed more fully below. Two issues merit further discussion: (1) it will not always be clear whether a worker s injury occurred in the course of employment, and (2) it will not always be clear whether a particular worker or employer is governed by the Act. A. Course of Employment For section 10(1) to apply, the injured worker must have been acting in the course of his or her employment at the time of the accident and the conduct of the other worker or employer that caused the accident must have occurred within the course of employment of that other worker or employer. Course of employment is not defined in the Act. To understand its meaning, it is necessary to look to the various policies of the Worker s Compensation Board as well as the decisions of the Appeal Tribunal, former Appeal Division and the Courts. The extent to which these authorities are binding is discussed more fully below. The Appeal Tribunal adheres to the following guidelines when determining whether an injury occurred during the course of employment:

p. 3 (1) Did the injury occur on the premises of the employer? (2) Did the injury occur in the process of doing something for the benefit of the employer? (3) Did the injury occur in the course of action taken in response to instructions from the employer? (4) Did the injury occur in the course of using equipment and material supplied by the employer? (5) Did the injury occur in the course of receiving payment or other consideration from the employer? (6) Did the injury occur during a time period for which the employee was being paid? (7) Was the risk to which the employee was exposed the same as the risk to which he or she is exposed in the normal course of production? (8) Was the injury caused by some activity of the employer or fellow employee? These criteria are set out in Chapter 3 of the Workers Compensation Board s Rehabilitation Services and Claims Manual ( Claims Manual ), one of the authorities which sets out the policies of the Appeal Tribunal. The Claims Manual can be viewed online at the Workers Compensation Board s website at www.worksafebc.com. Effective June 30, 2002, the Workers Compensation Act was amended by the Workers Compensation Amendment Act, 2002 which changed the law in relation to compensation benefits for injured workers. The transitional rules determine which volume of the Claims Manual applies. The current provisions found in Volume II apply to an injury that occurs on or after June 30, 2002. Subject to some exceptions, the former provisions of the Claims Manual found in Volume I apply to an injury occurring before June 30, 2002. Various borderline situations with respect to determining whether injury occurred during the course of employment have required policy decisions and these are discussed in Chapter 3 of both Volume I and II the Claims Manual. If a worker is travelling on a road maintained by an employer that leads from a public highway to the employer s premises (known as a captive road ) then the worker will likely be in the course of employment. The captive road doctrine is discussed at #18.11 of Chapter 3 of the Claims Manual. A worker travelling from home to work is not generally considered to be in the course of employment. However, if the worker is paid to travel, uses transportation provided by the employer (e.g., a bus) or makes sales or business calls directly from home, then the worker is likely in the course of employment. These situations are discussed in #18.20 and #18.21 of the Claims Manual. Illustrative cases can be found in the Workers Compensation Reporter.

p. 4 Where subsequent treatment worsens an injury which occurred in the course of employment, the subsequent treatment may also be viewed as arising out of the course of employment. Thus, an action against a neurosurgeon providing substandard treatment of a workrelated injury may be barred (see, for example, Re Kovach (1995), 5 B.C.L.R. (3d) 142 (S.C.), an appeal from a decision of the Board.). It should also be kept in mind that the employer or worker who causes the injury must also be in the course of employment. For example, the driver of the car that causes an accident will be in the course of employment if he or she is making a sales call, but not if he or she is on a personal errand. What should be clear is that it is necessary to examine all the facts when a worker is injured and proceeds with a tort claim. The supporting authorities such as the relevant sections of the Claims Manual must also be collected. This is discussed further below. B. Whether a Particular Worker or Employer is Governed by the Act The Act now covers most every employment situation in British Columbia. This was not always the case. Prior to the amendments which came into effect on January 1, 1994 (Workers Compensation Amendment Act, 1993, S.B.C. 1993, c. 34), certain industries and individuals were exempted from the application of the Act. The professions, the banking industry and most other sedentary workers were exempted. In other words, most office workers were not covered by the Act. In contrast, section 2(1), set out in the Schedule, is now very broad. Section 2(1) only allows exceptions for employers or workers exempted by order of the board. The following exemptions have been granted by the Board: (1) An individual employed by the owner or occupier in or around a private residence, other than for the purpose of the owner s or occupier s trade or business, or employed in serving the personal needs of the owner or occupier or the owner s or occupier s family is exempt where: (i) the individual is regularly employed for a definite or indefinite period on a weekly, monthly or similar basis for an average of less than 8 working hours per week; or 15 working hours per week, and the individual is employed caring for children in the period immediately preceding and following school; or (ii) the individual is employed to do a specific job or jobs involving a temporary period of less than 24 working hours. (2) Both spouses involved in unincorporated businesses are exempt where one or both own the business. Spouses includes common law

p. 5 spouses. Common-law spouse is defined as an individual who is known in the community as being a spouse, is living together with an individual of a different or the same sex and is not married to that individual: (i) (ii) where there is a child from the relationship, for at least one year; or where there is no child from the relationship, for at least three years. (3) Certain employers with no place of business in the province who temporarily carry on business in BC, but do not employ a BC resident, provided they are covered in another jurisdiction that provides compensation for occupational injuries and diseases and meet additional criteria set out below. (i) If an employer is in the trucking industry in BC, the additional criteria are that it: is not incorporated in BC; is not hauling goods between BC points; and hauls goods out of BC six or fewer times per calendar year. If an employer meets all these criteria, it is exempt regardless of the number of trips it may make hauling goods into the province, dropping them off and dead heading out. (ii) If an employer is not in the trucking industry in BC, the additional criteria are set out in the following table: Number of actual or proposed working days in BC in a year Number of actual or proposed visits to BC, in a year Status if meets basic criteria and columns 1 and 2 apply 15 or more Any number Not exempt 10 to 14 3 or more Not exempt 10 to 14 1 to 2 Exempt 9 or less Any number Exempt

p. 6 An employer who qualifies as an independent firm and who does not meet all the above criteria for exemption must register with the Board and begin payment assessments when it first comes into BC. Where an employer in BC hires a labour contractor (determined by the labour contractor s activities in BC) from out-of-province to work in BC, the employer is responsible for the labour contractor s coverage unless the labour contractor is registered with the BC Board. This policy applies regardless of the amount of time the labour contractor spends in BC, or the number of trips the labour contractor makes into BC. (4) Professional sports competitors or athletes are exempt. This exemption does not apply to non-competing workers of a sports team such as coaches, management, trainers or other support staff. (5) A personal financial holding company that complies with all of the following is exempt: (i) (ii) (iii) it is incorporated; the only workers are the shareholders of the company; no activities are carried out by the company except the management of the shareholders own personal financial investments; which consist solely of: investments in publicly traded stocks and bonds, mutual funds, or limited partnerships where the company has no say in day-to-day management of the partnership; interest bearing financial instruments such as GICs, savings bonds, treasury bills or certificates for deposit; or non-revenue producing land, buildings, or equipment where there is no development construction, or direct rental activity; and (iv) the company invests only its own assets and the assets of its shareholders. The first thing to keep in mind is that the number of situations where a tort action is precluded are now more numerous. A person such as a claims examiner, for example, who is concerned to limit the number of tort claims should be aware of the expansive categories. The exemptions set out above are quite narrow. Clause (1) of the exemptions is intended to exclude part-time domestic help such as babysitters. These exemptions are set out and

p. 7 discussed in greater detail in Policy No. AP1-2-1 of the Workers Compensation Board s Assessment Policy Manual. Self-employed persons are not considered to be workers under the Act unless they incorporate a limited company or voluntarily register under the Act. Further discussions of the definitions of worker and employer can be found in the Assessment Policy Manual. Employees of the government of Canada are also not workers under the Act. Under section 4(2) of the Federal Act, the Government Employees Compensation Act, R.S.C. 1985, c. G-5, an employee usually employed in a province is given the same rights to compensation as workers under the provincial Act. However, the Federal Act only precludes tort actions against the federal government if an employee is injured. If an accident involving a federal employee occurs, then the specific legislation and authorities should be consulted, including the definitions of employee set out in the Claims Manual. Difficulties have arisen in the past as to whether certain defendant workers and employers were within section 10(1) because of the nature of motor vehicle ownership and registration. An injured party may proceed against both the driver and the owner of a motor vehicle, with the owner being vicariously liable for the actions of the driver by virtue of section 86 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. In Gibb v. Munro and Schroeder, [1981] 1 S.C.R. 42, the plaintiff and the defendant drivers were workers in the course of their employment at the time of the accident. However, the defendant driver, a garage mechanic, was test driving a customer s car. The Court held that, because the defendant car owner, the customer, was neither the garage mechanic s employer nor an employer under Part 1 of the Act, section 10(1) of the Act did not preclude an action against the owner. For a recent application of this case see also Dyck v. Lohrer 2000 BCCA 219. A different result followed in Virk v. Bannister (1989), 36 B.C.L.R. (2d) 241 (C.A.), where the owner of the vehicle, although not the employer of the defendant driver, was an employer under Part 1 of the Act. The Court of Appeal held that the action was barred by section 10(1). In his Reasons, Justice Anderson explained how this result was intended by the amendments to the legislation. See also the comments of Mr. Justice Hollinrake in Hoschka v. Nijjar 2002 BCCA 256. IV. PERMITTED ACTIONS Actions against persons other than workers and employers are allowed. If a worker is injured during the course of his or her employment by someone other than an employer or worker, the injured worker can elect to claim compensation under the Act or to proceed with a tort action. Sections 9 and 10(2) recognize this right of election. If a worker elects to receive compensation under the Act, the Board must be notified within three months of the injury. Section 10(3) permits an extension of the three month period if undue hardship would result. The right of election may arise in the situation described above, where the driver of a motor vehicle is a worker but the owner of the vehicle is not an employer. If a worker elects to receive compensation from the Board, the Board has a right of subrogation against the tortfeasor pursuant to section 10(6). Having paid the injured worker, the

p. 8 Board can then bring an action against the person who caused the injury, as long as that other person is not another worker or employer. Pursuant to section 10(6), the Board, and not the injured worker, has authority to determine whether the claim can be compromised or settled. Any amount recovered which exceeds the amount paid out by the Board, less costs and administration, is paid over to the injured worker. These subrogated claims may be handled by the Board s own solicitors, or, subject to the direction of the Board, by outside counsel, including the injured worker s own solicitor. Section 10(7) provides that, where an action is brought and another worker or employer is found to be partly liable for the injury, the portion of the loss or damage for which that other worker or employer is liable must be determined, but that portion is not recoverable. Section 10(8) precludes actions by employers of injured workers against other employers, although it permits the Board to make certain administrative decisions as to how compensation awards will be attributed to the funds being administered. V. SECTION 257 CERTIFICATES Where, in the course of an action, an issue arises regarding a plaintiff s right to proceed with an action in light of the restrictions in section 10(1) of the Act, an application to the Board is required. It is the Board, and more particularly the Appeal Tribunal, that has sole authority to make a determination regarding rights under section 10(1). Thus, an application must be made to determine whether an injured worker is a worker under the Act, whether the worker or employer who caused the injury is a worker or employer under the Act, and whether the injury occurred during the course of employment. The Appeal Tribunal will provide a Certificate setting out its findings and this Certificate can then be presented to the Court in which the action has been commenced. There is a specific procedure in place for obtaining a section 257 Certificate which must be followed. This procedure is set out in the WCAT Manual of Rules, Practices and Procedures ( MRPP ) and it should be reviewed by anyone seeking a section 257 Certificate. The MRPP can be found online at www.wcat.bc.ca. A. Preliminary Steps Claims examiners should be aware that a section 257 Certificate is not available unless an action has been commenced. Section 257 states where an action...is commenced.... Thus, where there is possibility that a potential claim is barred by the section 10(1) of the Act, then a claims examiner should be reluctant to settle the claim for any significant amount and should insist that a court action be commenced. A section 257 application can then be brought. If section 10(1) is a bar to a plaintiff s action, then it should be pleaded in the Statement of Defence although the MRPP states that an application may be made without such a specific pleading. Rule 24 of the Rules of Court allows a party to amend its pleadings once at any time prior to the delivery of the Notice of Trial, but thereafter only with the consent of all parties or with leave of the Court. Of course, where there is any doubt regarding the plaintiff s action, the

p. 9 most efficient course is to simply plead section 10(1) when the Statement of Defence is first delivered. The following language is recommended: At the time of the accident: (a) (b) (c) the Defendant John Doe was a worker within the scope of Part 1 of the Workers Compensation Act; the Defendant AB Co. was an employer within the scope of Part 1 of the Workers Compensation Act; and the Plaintiff was a worker within the scope of Part 1 of the Workers Compensation Act or an independent operator or an employer deemed to be a worker within the meaning of the Act and the Plaintiff s injury arose out of and in the course of her employment as a worker within the meaning of the Act, and accordingly, pursuant to section 10 of the Act, the plaintiff has no cause of action against the Defendants in respect of any personal injury sustained as a result of the accident. The section 257 application will require evidence regarding the issues to be read, particularly the plaintiff s status as worker, the defendant s status as a worker or employer and whether the injury occurred in the course of employment. Thus, where a section 257 application is contemplated, Interrogatories should be sent or an Examination for Discovery conducted at an early stage of the action. As a practical matter, it may be wise in terms of costs to adjourn that portion of an Examination for Discovery dealing with a plaintiff s injuries and damages until the section 257 application has been completed. Finally, a section 257 application should be sought early in the action and at least six months in advance of any trial date. While the requirement that the Appeal Tribunal issue a decision within 180 days does not apply to a section 257 determination, it should be viewed as minimum time frame required to complete the certification process. In establishing dates for submissions of the parties, the Appeal Tribunal will take into account any trial date which has been scheduled. Even after a trial decision has been rendered, it may be possible to proceed to seek a section 257 Certificate. However, the earlier the application is made, the more costs that are likely to be saved. B. Steps in the Application A section 257 application may be initiated by any party or on reference by the Court. Where the defendant (or plaintiff, for that matter) wishes to bring an application, that party initiates the procedure by writing to the Workers Compensation Appeal Tribunal for British Columbia at 150-4600 Jacombs Road, Richmond, BC V6V 3B1 advising of the action that has been commenced and that a section 257 Certificate is sought. Basic information regarding the plaintiff, such as birth date and social insurance number, should be provided. If possible, information regarding the defendant employer s registration with the Board should also be provided. In

p. 10 addition, if the matter has been set for trial, the Appeal Tribunal must be advised of the trial date. The letter should then briefly canvass the issues to be raised which should reflect those issues enumerated in section 257: (a) (b) (c) (d) whether the plaintiff was a worker at the time the cause of action arose; whether the injury arose in the course of the plaintiff s employment; whether the defendant(s) was a worker or employer at the time the cause of action arose; and whether the defendant employer or worker was engaged in an industry or in the course of employment at the time of the accident. Finally, the following documents should be provided: Writ of Summons, Statement of Claim, Statement of Defence, any statements made to ICBC (in motor vehicle cases), any Third Party pleadings, relevant Affidavits and Motions filed in the legal action, Notice of Trial (if scheduled) and transcripts of any Examinations for Discovery that have been held. On receipt of the initial request, the Appeal Division will inform all parties that the application has been brought. The plaintiff s employer will also be informed and invited to participate in the section 257 application. Because of the effect a claim may have on the premiums to be paid to the Board, the plaintiff s employer is considered to be a person with an interest in the outcome. The application generally proceeds by way of written submissions. If an oral hearing is sought, a written request to the Appeal Tribunal must be made, setting out reasons why an oral hearing is necessary. The MRPP recognizes that an oral hearing may be warranted if significant questions of credibility exist. The Appeal Tribunal further has the discretion to order, where necessary, an oral hearing whether or not it has been specifically requested. The party requesting the section 257 application will be asked to provide the first written submission. The submission should set out the issues to be determined (as set out in the letter of request, above), the facts and the argument. Of course, the facts relied on should be supported by the proper factual documentation, particularly the Examination for Discovery transcripts. Other documents, such as handwritten witness statements, business records and sworn Affidavits, may be submitted and relied on by the Appeal Tribunal. An oral hearing will involve oral testimony. The formal rules of evidence do not apply, but less reliable evidence will be given less weight. The MRPP notes that legal argument should include reference to the policy of the board of directors that is applicable in a case, which consists of the following: (i) (ii) (iii) Rehabilitation Services and Claims Manual [Vol. I & II]; Assessment Manual; Prevention Manual;

p. 11 (iv) (v) (vi) Workers Compensation Reporter; Tribunal precedent panel decisions; and Decision of the Governors declared to be policy (to be published in the Workers Compensation Reporter). The MRPP recognizes that the Appeal Tribunal is not bound to follow precedent, but it does strive to be consistent. The Rehabilitation Services and Claims Manual, the Assessment Manual and the Workers Compensation Reporter will be most useful. The Prevention Manual is primarily concerned with the prevention of accidents. The above publications and prior Appeal Division certification decisions since November 1992 can be found on-line at www.worksafebc.com. Appeal Tribunal decisions since March 3, 2003 are publicly accessible at www.wcat.bc.ca. Proper legal argument should refer to whatever policy and previous decisions of both the Appeal Tribunal and prior Appeal Division lend support to the position being argued. The first submission will be disclosed to the other parties (counsel must provide a copy of their submissions to opposing counsel at the same time they are sent to the Appeal Tribunal), who will be informed they have three weeks to respond, although this time may be extended upon request. The first party will be allowed a further three weeks to present rebuttal argument. A shorter time frame may be imposed if a trial date is imminent. Upon receipt of all submissions (written and/or oral) and once the matter has been considered, the Appeal Tribunal will issue both a Certificate and written reasons. This process may take up to ninety days. C. The Certificate In a section 257 Certificate, the Appeal Division will set out whether, at the time the accident occurred: (a) (b) (c) (d) the injured person was a worker; the injury arose in the scope of the worker s employment; the defendant(s) is also a worker or an employer; and the conduct of the defendant(s) which caused the accident arose during the course of employment. If all four determinations above are not required by the submissions of the parties, the Certificate will be narrower. There is no appeal from a section 257 Certificate. Section 255 specifically provides that any decision is final, conclusive and not open to question or review in any court. Section 254 of the Act provides that the Appeal Tribunal has exclusive jurisdiction to inquire into, hear and determine all matters of fact and law arising under section 257 of the Act. The Courts have recognized this privative clause and will not overturn a Certificate in the absence of a breach of natural justice, such as bias or failure to provide a proper hearing. Whether there has been a breach of natural justice depends on all the circumstances and the Court will be very reluctant to

p. 12 interfere with a decision of the Board (see, for example, Murphy v. Dowhaniuk (1986), 7 B.C.L.R. (2d) 334 (C.A.)). D. Use of the Certificate in the Legal Action The Appeal Tribunal will not determine the effect of the section 257 Certificate on the legal action. Instead, a further application to the Court must be made, asking the Court to dismiss the action, pursuant to section 10(1) of the Act and the finding set out in the Certificate. The Courts will not take issue with the finding set out in the Certificate, and a dismissal of the action as against those defendants the Appeal Tribunal has determined are workers and employers should follow (and the action will continue as against those defendants who are not workers or employers). E. Final Considerations Applications to have a claim barred under section 10(1) may give rise to a possible conflict between an insurer and insured. If an insured defendant employer has never registered his or her business with the Board, an application may expose that employer to retroactive assessments. It may be necessary to have the insured obtain independent legal advice. VI. CONCLUSION Section 257 applications are somewhat cumbersome because the two step process requires submissions to the Appeal Tribunal and then a court application. It will also be necessary at an early stage to carefully assess all the circumstances surrounding the accident and collect reliable evidence regarding the status of the plaintiff, the defendant, their employers and their work situation. Nevertheless, the savings to insurers are substantial if a claim is indeed barred by section 10(1) of the Act. The cases where section 10(1) applies will not always be obvious, and claims examiners and defence counsel should be alert to actions properly within the jurisdiction of the Workers Compensation Board. D. Lawrence Munn Tel. 604.643.3160 lm@cwilson.com Krista Prockiw Tel. 604.643.3105 kxp@cwilson.com CWA85739.1

p. i SCHEDULE Definitions 1 In this Act: accident includes a wilful and intentional act, not being the act of the worker, and also includes a fortuitous event occasioned by a physical or natural cause;.. appeal tribunal means the Workers Compensation Appeal Tribunal established under Part 4; employer includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry; employment, when used in Part 1, means and refers to all or part of an establishment, undertaking, trade or business within the scope of that Part, and in the case of an industry not as a whole within the scope of Part 1 includes a department or part of that industry that would if carried on separately be within the scope of Part 1; worker includes (a) a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise; (b) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry within the scope of Part 1 for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment; (c) a member of a fire brigade or an ambulance driver or attendant working with or without remuneration, when serving (i) a municipality, a regional district, an urban area, an improvement district, a board of school trustees, a francophone education authority as defined in the School Act, a library board or a parks board, or (ii) a board or commission having the management or conduct of work or services on behalf of any of the bodies in subparagraph (i); (d) in respect of the industry of mining, a person while the person is actually engaged in taking or attending a course of training or instruction in mine rescue work under the direction or with the written approval of an employer in whose employment the person is employed as a worker in that industry, or while, with the knowledge and consent of an employer in that industry, either express or implied, he or she is actually engaged in rescuing or protecting or attempting to rescue or protect life or property in the case of an explosion or accident which endangers either life or property in a mine, and this irrespective of whether during the time of his or her being so engaged the person is entitled to receive wages from the employer, or from any employer, or is performing the work or service as a volunteer; (e) further, in respect of the industry of mining, a person while he or she is engaged as a member of the inspection committee, appointed or elected by the workers in the mine, to inspect the mine on behalf of the workers; (f) an independent operator admitted by the Board under section 2 (2); and (g) a person deemed by the Board to be a worker under section 3 (6). Application 2 (1) This Part applies to all employers, as employers, and all workers in British Columbia except employers or workers exempted by order of the Board. (2) The Board may direct that this Part applies on the terms specified in the Board s direction (a) to an independent operator who is neither an employer nor a worker as though the independent operator was a worker, or (b) to an employer as though the employer was a worker. (3) The application of this Part under subsection (2) to an employer does not exempt the employer, as an employer, from the application of this Part.

p. ii Limitation of actions, election and subrogation 10 (1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, whether that duty or cause of action is imposed by or arises by reason of law or contract, express or implied, to which a worker, dependant or member of the family of the worker is or may be entitled against the employer of the worker, or against any employer within the scope of this Part, or against any worker, in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies. This provision applies only when the action or conduct of the employer, the employer s servant or agent, or the worker, which caused the breach of duty arose out of and in the course of employment within the scope of this Part. (2) Where the cause of the injury, disablement or death of a worker is such that an action lies against some person, other than an employer or worker within the scope of this Part, the worker or dependant may claim compensation or may bring an action. If the worker or dependant elects to claim compensation, he or she must do so within 3 months of the occurrence of the injury or any longer period that the Board allows. (3) Where the Board is satisfied that due to the worker s physical or mental disability a worker is unable to exercise his or her right of election, and undue hardship will result, it may pay the compensation provided by this Part until the worker is able to make an election. If the worker then elects not to claim compensation, no further compensation may be paid, but the compensation so paid is a first charge against any sum recovered. (4) An application filed by a parent, guardian or the Official Guardian for compensation for the infant child of a deceased worker is a valid election on behalf of that child. (5) If after trial, or after settlement out of court with the written approval of the Board, less is recovered and collected than the amount of the compensation to which the worker or dependant would be entitled under this Part, the worker or dependant is entitled to compensation under this Part to the extent of the amount of the difference. (6) If the worker or dependant applies to the Board claiming compensation under this Part, neither the making of the application nor the payment of compensation under it restricts or impairs any right of action against the party liable, but as to every such claim the Board is subrogated to the rights of the worker or dependant and may maintain an action in the name of the worker or dependant or in the name of the Board; and if more is recovered and collected than the amount of the compensation to which the worker or dependant would be entitled under this Part, the amount of the excess, less costs and administration charges, must be paid to the worker or dependant. The Board has exclusive jurisdiction to determine whether to maintain an action or compromise the right of action, and its decision is final and conclusive. (7) If, in an action brought by a worker or dependant of a worker or by the Board, it is found that the injury, disablement or death, as the case may be, was due partly to a breach of duty of care of one or more employers or workers under this Part, no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker; but the portion of the loss or damage caused by that negligence must be determined although the employer or worker is not a party to the action. (8) The provisions of this Part are in lieu of any right of action that the employer of the injured or deceased worker is or may, in respect of the personal injury or death of the worker, be entitled to maintain against another employer within the scope of this Part, or an independent operator to whom this Part applies by direction under section 2(2)(a); but where the Board considers that (a) a substantial amount of compensation has been awarded as a result of the injury or death of the worker; and (b) the injury or death was caused or substantially contributed to by a serious breach of duty of care of an employer or an independent operator to whom this Part applies by direction under section 2 (2) (a) in another class or subclass, the Board may order that the compensation be charged, in whole or in part, to the other class or subclass; but the provisions of this subsection do not affect any right which an employer may have against another employer, or an independent operator to whom this Part applies by direction under section 2 (2) (a), arising out of their indemnity agreement or contract. (9) For the purpose of this section, worker includes an employer admitted under section 2 (2).

p. iii (10) In an action brought under this section, an award for damages is to include (a) health care provided under this Part; and (b) wages and salary paid by an employer during the period of disability for which regard has been had by the Board, or would have been had if the worker had elected to claim compensation, in fixing the amount of a periodical payment of compensation. (11) Costs may, notwithstanding that a salaried employee of the Board acts as its solicitor or counsel, be awarded to and collected by the Board in an action taken by the Board under this section. Certification to court 257 (1) Where an action is commenced based on (a) a disability caused by occupational disease, (b) a personal injury, or (c) death, the court or a party to the action may request the appeal tribunal to make a determination under subsection (2) and to certify that determination to the court. (2) For the purposes of subsection (1), the appeal tribunal may determine any matter that is relevant to the action and within the Board s jurisdiction under this Act, including determining whether (a) a person was, at the time the cause of action arose, a worker within the meaning of Part 1, (b) the injury, disability or death of a worker arose out of, and in the course of, the worker s employment, (c) an employer or the employer s servant or agent was, at the time the cause of action arose, employed by another employer, or (d) an employer was, at the time the cause of action arose, engaged in an industry within the meaning of Part 1. (3) This Part, except section 253 (4), applies to proceedings under this section as if the proceedings were an appeal under this Part.