Leslie Slater  of Carfra Lawton LLP, acting for the Defendant employer, along with co-Defence Counsel Harold Turnham, acting for the Defendant employee, successfully appealed a WCB decision to the BC Court of Appeal.
In summary, the Plaintiff brought a tort claim for mental stress which allegedly rendered her permanently disabled as a result of being bullied at work by a co-worker. She sued both her employer and the co-worker. The employer brought an application to the Workers’ Compensation Board, seeking certification that the matter arose out of and in the course of employment, and that the tort claim should be stayed.
The Workers’ Compensation Appeal Tribunal (”WCAT”) upheld the Board’s decision and found that the Plaintiff, co-worker, and employer were workers and an employer under the Workers Compensation Act, that the incident occurred at work, and that the psychological injury was caused by the employment incident, but found that the Plaintiff had not met the criteria set out in the Act to establish a mental stress claim – while it was an acute reaction to a sudden traumatic event, it was not “unexpected”. The WCAT issued a s. 257 certificate stating that the injury “did not arise out of and in the course of employment“.
On judicial review, the judge determined that if the Plaintiff was not entitled to receive WCB benefits, she could continue her tort claim against the employer and co-worker.
In a unanimous decision, the BC Court of Appeal (”BCCA”) disagreed with the judge below and determined that while the Plaintiff was precluded from receiving benefits through WCB, the injury clearly arose out of and in the course of employment. The BCCA cited the “historic trade-off” – workers gave up their right to sue employers and co-workers, in exchange for a no-fault compensation system, and, conversely, employers pay into the system for the certainty that employees cannot sue them. The court found that in this case, the Plaintiff was entitled to claim WCB benefits, but that she was unsuccessful in receiving them because she did not fit the criteria for compensation. Because of the “historic trade-off”, she was not entitled to bring a tort claim against her employer or the co-worker.
It is noteworthy that this decision brings the BC law in line with the laws in Alberta and Saskatchewan.