IN THE SUPREME COURT OF BRITISH COLUMBIA
| Citation: | Gourlay v. Crystal Mountain Resorts Ltd., |
|
| 2019 BCSC 1134 |
Date: 20190626
Docket: S53213
Registry: Vernon
Between:
Kevin Gourlay
Plaintiff
And
Crystal Mountain Resorts Ltd.,
Crystal Ski & Golf Resort Inc., and John Doe
Defendants
- and -
Docket: S53279
Registry: Vernon
Between:
Meagan Harvey
Plaintiff
And
Crystal Mountain Resorts Ltd.,
Crystal Ski & Golf Resort Inc., and John Doe
Defendants
Before: The Honourable Mr. Justice Hori
Oral Reasons for Judgment
In Chambers
| Counsel for the Plaintiffs: | C.T. Hart |
| Counsel for the Defendant Crystal Mountain Resorts Ltd.: | M. Gianacopoulos |
| Counsel for the Defendant Allard: | G. Ginter |
| Place and Date of Trial/Hearing: | Kelowna, B.C. June 20, 2019 |
| Place and Date of Judgment: | Kelowna, B.C. June 26, 2019 |
[1] THE COURT: The applications before me are on two related actions. The first is Kevin Gourlay v. Crystal Mountain Resorts Ltd., Vernon Registry 53213, and the second is Meagan Harvey v. Crystal Mountain Resorts Ltd., Vernon Registry 53279. The applications have been brought by the defendants in those actions to adjourn the trials that have currently been set in those actions.
[2] The Gourlay trial is scheduled to commence on July 2, 2019, for eight days, with a jury, and the Harvey trial is scheduled to commence on August 12, 2019, for seven days, with a judge alone. The Harvey action has an additional complicating factor, in that the Harvey action is to be heard at the same time as an action involving a motor vehicle accident in which Ms. Harvey was involved subsequent to the incident which is the subject matter of the two actions before the court today.
[3] In addition to applying for an order adjourning these trials, the defendants apply to amend their responses to civil claim to allege a defence based on s. 10 of the Workers Compensation Act [Act].
[4] Both of these actions arise out of a chairlift incident at Crystal Mountain Ski Resort on March 1, 2014. The plaintiffs at that time were ski patrollers for the mountain and were riding on the chairlift when the incident occurred. They both claim injuries as a result. The plaintiffs submitted claims to WorkSafeBC for compensation pursuant to the Workers Compensation Act. Both WorkSafeBC applications were denied because WorkSafeBC concluded that the plaintiffs were volunteers and did not receive any money for their services. As a result, they were not considered to be workers under the Act.
[5] The action on behalf of Ms. Harvey was commenced on February 3, 2016, and the action was commenced on behalf of Mr. Gourlay on January 6, 2016. Responses to both actions were filed by the defendants on March 11, 2016. The responses deny liability but do not raise any defences under s. 10 of the Act.
[6] On January 22, 2018, the parties arrived at an agreement with respect to the future progress of the actions. The terms of that agreement were recorded in a case plan order on that same day. The case plan order in these actions provided the following:
a) the trial will deal with the assessment of damages only;
b) the defendants have agreed to pay damages as assessed at the trial or as negotiated; and
c) the issue of liability will not be adjudicated and will not be an issue in this litigation.
[7] The examination for discovery of Meagan Harvey was conducted on May 9, 2017. During that discovery, Ms. Harvey disclosed that the plaintiffs in the actions made claims to WorkSafeBC but were denied. At that discovery, the defendants requested the WorkSafeBC documents, including the denial letters. Defence counsel followed up on this request on January 28, 2019, May 10, 2019, and May 21, 2019.
[8] The denial letters from WorkSafeBC were delivered to the defendants following the trial management conference which was conducted on May 21, 2019. When the defendants received copies of the denial letters, they determined that the WorkSafeBC denial was based on incomplete information. In addition, on May 21, 2019, the defendants received a recent decision from the Workers' Compensation Appeal Tribunal in which the Tribunal held that volunteers may be workers under the Act in circumstances where they receive some benefit from the volunteer work.
[9] Based on the information received about the denial and the recent Workers' Compensation Appeal Tribunal decision, the defendants have applied to the Appeal Tribunal for a s. 257 determination under the Workers Compensation Act. However, the trials are scheduled to commence on July 2 and August 12, 2019. Therefore, the defendants apply for a stay of proceedings or an adjournment of the trials until the determination of the Workers' Compensation Appeal Tribunal is completed. The defendants also apply to amend their responses to civil claim to include a Workers Compensation Act defence pursuant to s. 10 of the Act. The plaintiffs resist those applications.
[10] Section 10 of the Workers Compensation Act provides that the provisions of the Act are in lieu of any right and rights of action founded on a breach of duty of care to which a worker may be entitled against an employer or worker. Section 10 applies when the injury arises out of and in the course of employment and the Act provides that no action in respect of it lies.
[11] The defendants claim that the recent disclosure of documents from WorkSafeBC and a recent decision of the Workers' Compensation Appeal Tribunal have raised an issue as to whether the plaintiffs' claims are caught by s. 10 of the Act and are statute barred.
[12] Section 257 of the Workers Compensation Act sets out the procedure to be followed to have the Appeal Tribunal determine whether the individual elements required for s. 10 are established. I will refer to this as the “Section 257 Determination”. Section 257 is recognized as giving the Appeal Tribunal the exclusive jurisdiction to determine whether: (a) a person was, at the time the cause of action arose, a worker; (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 employer's servant or agent was, at the time the cause of action arose, employed by another employer; and (d) an employer was, at the time the cause of action arose, engaged in an industry within the meaning of Part 1 of the Act.
[13] The defendants have applied to the Appeal Tribunal for a Section 257 Determination. That determination will take at least six months. The defendants submit that if the Section 257 Determination concludes that all of the necessary elements for s. 10 to apply are established, then the court would be compelled by s. 10 of the Act to dismiss the actions. The defendants submit that once the Section 257 Determination concludes that the necessary elements to apply s. 10 are established, the court no longer has jurisdiction to proceed with a tort action. Therefore, the court must allow the Appeal Tribunal to make its Section 257 Determination before proceeding with the actions. Accordingly, the action should be stayed or the trials adjourned and the defendant should be granted leave to amend their responses to civil claim.
[14] In support of their position, the defendants rely on The Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46, in which the Supreme Court of Canada considered whether the Ontario Workmen's Compensation Act could operate to stay the proceedings when it was raised as an amendment to the defence at the opening of trial. After considering this issue, Anglin J. held, at page 63:
Under the amended statute, in my opinion, whenever this question arises as a substantial issue in the course of an action the proper course to take is to stay proceedings in the action until it has been adjudicated upon by the board. Simpson v. Crowle at pages 250, 255. In view of the provisions of s. 20 the workman-plaintiff will be well advised in every case where there is any conceivable ground for contending that his claim falls within the Act to seek the determination of the board at the earliest possible date.
[15] The defendants further submit that it matters not when the potential for a s. 10 defence is discovered. Even after judgment has been given, the s. 10 defence has been accepted to stay proceedings.
[16] In Canadian Pacific Limited v. Jones Estate, [1989] B.C.J. 1241, the Supreme Court of British Columbia considered the provisions of the B.C. Workers Compensation Act and whether those provisions required a stay of proceedings. After citing the Supreme Court of Canada decision in Dominion Canners Ltd., Cumming J. directed that the tort action be stayed pending a determination by the Workers Compensation Board under the then s. 11 of the Act, now s. 257. The stay of proceedings was directed even though the Workers Compensation Act issue was first raised as a defence during the trial of the action.
[17] The plaintiffs do not take issue with the exclusive jurisdiction of the Appeal Tribunal to make a Section 257 Determination, nor do they disagree that s. 10 of the Workers Compensation Act is a bar to the recovery of tort damages. They submit that the Section 257 Determination and the s. 10 statutory bar are not relevant and do not apply in this case, as a result of their agreement with the defendants, as set out in the case planning order of January 22, 2018.
[18] The plaintiffs submit that the case planning order records the terms of an agreement between the parties with respect to the issues in the action. The plaintiffs say that the terms of this order make s. 257 and s. 10 of the Act irrelevant because there is a contractual obligation on the defendants to pay the damages assessed at the trial. In effect, the plaintiffs claim that the defendants have contracted out of or waived the applicability of s. 10 of the Act.
[19] The plaintiffs claim that the consent order made at the case planning conference has not been set aside and the proper course is for the defendants to apply to set aside the order. The plaintiffs rely on the British Columbia Court of Appeal decision in Shackleton v. Shackleton, 1999 BCCA 704, where the court concludes:
A consent order is a formal expression of an agreement between the parties. Where parties intend to finally dispose of the issues between them, a consent order will operate as a final judgment: Campbell v. Campbell (1954), 1954 CanLII 231 (BC SC), [1955] 1 D.L.R. 304 (B.C.S.C.). For the same reason that courts enforce settlement agreements, to provide certainty to parties settling disputes, consent orders are not easily altered. Subject to statutory provisions otherwise a consent order may be set aside or altered in substance only in circumstances which justify the same treatment to the underlying contract . . .
[20] By this passage, the Court of Appeal is suggesting that in order to set aside a consent order there must be an analysis of the underlying agreement. In this case, I would think that such an analysis would require investigation into what information the parties had at the time of the agreement; what were their intentions; was there an intention to waive the provisions of s. 10 of the Workers Compensation Act.
[21] I cannot lose sight of the fact that these actions are tort actions claiming damages arising out of a breach of duty of care. They are not actions for breach of contract in which the contractual issues mentioned earlier can be properly assessed. Those issues would need to be addressed in a properly‑pled action for breach of contract. In my view, the proper and most reasonable course to follow is to follow the course adopted by the Supreme Court of British Columbia in the Canadian Pacific case.
[22] The trials scheduled to commence on July 2, 2019, in Gourlay, and August 12, 2019, in Harvey, should be adjourned and the defendants should be allowed to amend their responses to raise the Workers Compensation Act s. 10 defence. Should the Section 257 Determination find that the elements for the application of s. 10 of the Act are established, the court will ultimately determine what effect the Section 257 Determination has on these actions. I expect, however, that the s. 10 statutory bar will have a significant persuasive effect.
[23] Therefore, I order that the trial scheduled to commence in the Gourlay action on July 2, 2019 be adjourned and the trial scheduled to commence in the Harvey action on August 12, 2019 be adjourned.
[24] The parties may reschedule the trials, leaving sufficient time for the Section 257 Determination to be completed, which I am told is a minimum of six months.
[25] The defendants are also granted leave to amend their responses to civil claim in both actions to allege the s. 10 Workers Compensation Act issue.
[26] With respect to costs, there will be no order as to costs for these applications and there will be no order with respect to costs thrown away in the Harvey and the Gourlay actions.
[27] While the defendants may have avoided the need for late applications if they had made more extensive investigations earlier because the defendants had the means to know the worker status of the plaintiffs, the plaintiffs ought to have made WorkSafeBC disclosure earlier than they had. In addition, the parties had no control over the recent publication of the Workers' Compensation Appeal Tribunal decision on volunteers.
[28] However, with respect to costs thrown away by Ms. Ginter's client in the additional action, if there are costs thrown away, those costs will be paid in the cause in the Harvey action. In other words, the unsuccessful party in the Harvey action will pay the costs thrown away incurred by Ms. Ginter's client as a result of this adjournment. I also direct that Ms. Ginter be kept informed as to the progress of the Section 257 Determination and of any new trial dates in the Harvey action.
[29] As a result of the decision of the application to adjourn, I am going to adjourn the defendant's application for production of additional documents generally at this time. The defendants have liberty to reset that application following the Section 257 Determination.
“Hori J.”
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