Nov 11, 2020

Workers’ Comp; Striking Pleadings

Jirasek v. Zhao, 2020 BCCA 308 (CanLII)

Keywords: Workplace Accident; Workers Compensation Act, R.S.B.C. 1996, c. 492; Supreme Court Civil Rules, BC Reg 168/2009

Synopsis:

The Appellant, Mr. Jirasek, is injured in a workplace accident after an excavator bucket strikes his head. He applies to the B.C. Workers’ Compensation Board, and is awarded some compensation. The Appellant then files a petition for judicial review of the Board’s decisions, seeking additional compensation. He does not pursue the petition, opting instead to file a civil claim as against the Respondent, Ms. Zhao (the property owner/employer), for “not reporting his claim right away and for not cooperating with the Board’s investigation of his claim”. (See para. 8).

The Chambers Judge strikes the claim on the basis that s. 10 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 says a worker who files a claim with the Board is barred from suing his employer. The Chambers Judge also finds that the claim could not go ahead because it was “trying to overturn final decisions of the Board and Appeal Tribunal outside of the proper review process”. (See para. 9).

On Appeal, the Appellant seeks reinstatement of the claim. The Court of Appeal dismisses the appeal, finding the Chambers Judge did not err in striking the claim; that the Appellant’s claim was an attempt to circumvent the process and obtain damages directly from his employer.

Importance:

The Appellant says his situation reflects a broader problem with smaller employers “not following the rules that are there to keep all workers safe”. (See para. 15). He alleged his employer did not have insurance, did not report the accident, and failed to provide timely information about what had happened. For the Court of Appeal, however, the issue before the Board was whether the Appellant’s sympoms were caused by the accident and “nothing Ms. Zhao did or did not do could affect that analysis”. (See para. 12).

The Chambers Judge applied Rule 9-5(1)(a) and (d) of the Supreme Court Civil Rules, BC Reg 168/2009, which permit a court to strike out or amend pleadings:

Scandalous, frivolous or vexatious matters

(1)At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that

(a) it discloses no reasonable claim or defence, as the case may be,

(b) it is unnecessary, scandalous, frivolous or vexatious,

(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or

(d) it is otherwise an abuse of the process of the court,

and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.

For the Chambers Judge, s. 10 of the Workers Compensation Act barred the Appellant’s claim. Critically, the Chambers Judge determined the Appellant’s claim was really a means of seeking additional compensation for a workplace injury. As such, the proper avenue for recourse was judicial review of the Workers Compensation Board decision. On Appeal, Mr. Jirasek argued the Chambers Judge mischaracterized his claim, and failed to make an important distinction: the Appellant was not suing his employer for his injuries, but rather for the way in which she dealt with the Board. (See para. 10).

The Court of Appeal did not accept this argument, finding: “I do not see that the judge made a mistake when she struck out the claim under Rule 9-5(1), because the claim against Ms. Zhao does not disclose a valid cause of action and because it deals with the same matters the Board dealt with”. (See para. 11). For the Court of Appeal, Mr. Jirasek’s claim sought compensation “for the very injuries and pain and suffering and loss of ability to work that the Board addressed in its process”. (See para. 14). Accordingly, the Court of Appeal determined the Chambers Judge was “correct to strike out Mr. Jirasek’s notice of civil claim” and dismissed the appeal. (See para. 19).

Counsel for the Appellant, appearing in person: Vaclav Jirasek

Counsel for the Respondent: Adam Soliman (Soliman, Adam, Barrister & Solicitor, North Vancouver)