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BC Court grants stay of proceedings pending Workers’ Compensation determination
January 20, 2017
Author(s): Andrew R. McDaniel

Legal claims for workplace injuries, including mental health injuries may be covered by the Workers’ Compensation Act in certain cases. However, whether or not a claim falls within the jurisdiction of the court is a decision that will be made by the Workers’ Compensation Appeal Tribunal (WCAT), and not the court.

Workers’ Compensation legislation is in effect across the country and establishes a no-fault insurance system for employees who are injured during the course of their employment. The Act contains a statutory bar which provides that an employee is not entitled to sue an employer or another worker in respect of any injury arising out of and in the course of employment, but instead must apply to the Workers’ Compensation Board (“WCB”) for benefits. Section 257 of the Act provides that, where an action is commenced based on disability caused by an occupational disease, personal injury, or death, any party may request WCAT to make a determination as to whether the allegations in the claim are within the jurisdiction of the Workers’ Compensation Board.

In Garritty v. Richmond Kinsmen Home Support Society, 2016 BCSC 2204, the Plaintiff commenced an action against the Richmond Kinsmen Home Support Society (the “Society”) claiming damages for constructive dismissal, as well as aggravated damages for mental distress. The basis for the mental distress claim was that the Society had condoned harassment in the workplace and created a hostile working environment causing the Plaintiff to suffer mental distress.

The Society took the position that the claims alleged fell within the jurisdiction of the WCB and could not be brought to court in the legal action. The Society filed an application with WCAT to make a determination as to whether and to what extent the matters alleged by the Plaintiff are within the exclusive jurisdiction of the WCB.  The Society then filed an application in Court to stay the legal proceedings until a determination could be made by WCAT on the jurisdictional issue. At the hearing of the stay application, the Plaintiff took the position that the legal claim was a breach of contract claim and should proceed regardless of the Society’s WCAT application.

The Court found that the issue of whether a claim falls within the jurisdiction of WCB can be raised at any stage of the proceedings and if there are “conceivable grounds” for contending that at least part of the claim falls within the WCB jurisdiction, the proper course of action is to stay the legal proceedings and await a determination by WCAT on jurisdiction. On the facts of this particular case, the Court found that there was at least “conceivable grounds” that at least part of the claim was within the jurisdiction of the Act, and in particular, it was conceivable that the claims of bullying and harassment fell within the scope of the Act.

In addition, the Court found that, if a stay was not granted pending the section 257 determination, the Society would likely incur costs for discoveries and pre-trial preparation, and that this constituted harm or prejudice that would not be fully ameliorated by an award of costs.  As a result, the interim stay was granted pending the determination by WCAT of the Defendant’s application for the section 257 determination and certification to the Court.

Employers who find themselves in a legal action with former employees should consider whether any of the claims in the legal action may potentially fall within the jurisdiction of WCB and not the court. If so, the employer should consider filing a WCAT application and bringing an application for a stay to avoid unnecessary costs and expense while awaiting the jurisdictional determination. To be successful in such an application, the employer will only have to demonstrate that there are “conceivable grounds” for contending that at least a part of the claim falls within the Act and that the employer will be prejudiced if the stay is not granted.

Questions relating to the content of this article may be directed to Dianne Rideout.