Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, 2012 BCCA 392

In Downs Construction Ltd. v. Workers’ Compensation Appeal Tribunal, the British Columbia Court of Appeal (BCCA) held that a worker who fails to obtain workers' compensation benefits for a workplace injury is not entitled to sue his/her employer for a common law breach of duty. The judgment reinforces the historic trade-off in s. 10 of the B.C. Workers' Compensation Act (BCWCA), which bars an action for an injury arising out of and in the course of employment if the worker could bring a claim under s. 10 of the BCWCA. The BCCA found the trade-off was appropriate even if there may be a lacuna in the compensation scheme under the Act.

Chiasson J.A. indicated that the trial judge and the Workers' Compensation Tribunal (WCAT) misunderstood the purpose of the 'historic trade-off' embodied in s. 10 of the BCWCA. Rather than the trade-off merely being a quid pro quo in which workers exchange tort rights for compensation under the BCWCA, the trade-off involves workers relinquishing their right to sue their employers and co-workers, along with the benefits of potentially larger damages, in exchange for prompt and guaranteed no-fault compensation, in which employees may receive compensation for workplace injuries regardless of fault. He drew on the judgment by Sopinka J in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 to emphasize the complexity of the historic trade-off, but also on commentary by the Minister during the reading of the Bill which would become the BCWCA. Chiasson J.A. noted that the Minister's comments on the need for the compensation scheme to provide sustainable benefits reflect concerns at the core of the historic trade-off. In his view, it would be contrary to legislative intent if employees are permitted to bring tort claims “notwithstanding the action of the Legislature to curb such claims because they were having an adverse financial effect on employers”.

In this case, a worker claimed compensation for, inter alia, post traumatic stress disorder pursuant to s. 5.1 of the BCWCA, and also brought a tort claim against her employer and co-worker for mental stress. The BCCA held that while the worker was not entitled to benefits through the BCWCA because she did not fit the criteria required for compensation, the injury arose out of and in the course of employment. As such, the worker was not entitled to bring a tort claim against her employer or her co-worker for the workplace injury she suffered because of the “historic trade-off” principle.

Link to Decision

Carolyn Lambert

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