Workers' compensation scheme prevents recovery for injuries caused by another trucker
The BC Court of Appeal has upheld the finding of the Workers’ Compensation Appeal Tribunal (WCAT) of the existence of an employer-employee relationship in a trucking accident case, which precludes the recovery of damages.
In Campbell v. Workers’ Compensation Appeal Tribunal, 2023 BCCA 245, David Campbell sustained significant injuries when a logging truck collided with his truck. Bowden Contracting Ltd. owned the logging truck, and its employee, Christopher Elliott, was driving the truck at the time of the incident. The accident occurred on Barkerville Highway in central British Columbia.
Campbell filed a lawsuit against Bowden and Elliott, as well as Emcon Services Inc., which had a contract with the provincial government to repair and maintain highways in that region of the province. Bowden and Elliott filed a response to the civil claim, pleading statutory immunity under the Workers Compensation Act (WCA), which precludes civil actions to recover damages for personal injuries sustained by a “worker” in the course of their employment, where the injuries are caused by another worker or employer covered by the workers’ compensation scheme.
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Employer-employee determination
Emcon applied to the Workers’ Compensation Appeal Tribunal (WCAT) to determine that it was an employer and that Campbell was an employee at the time of the accident. Bowden and Elliott filed written submissions in response, in which they also sought a determination under s. 257 of the WCA that they were an employer and employee, respectively.
Campbell filed his written submissions with WCAT. He responded to Emcon’s written submissions but did not address Bowden and Elliott’s request for an s. 257 determination.
WCAT decided that Campbell and Elliott were both workers, Bowden and Emcon were both employers, and Campbell’s injuries arose out of and during his employment. As a result, Campbell was precluded from proceeding with a civil action against any of Emcon, Bowden and Elliott.
Obligation to seek leave
Campbell sought judicial review of the WCAT decision. However, the judge dismissed his petition and ruled in favour of the defendants. Campbell raised the matter to the BC Court of Appeal. One of Campbell’s arguments on appeal was the judge’s alleged error in finding that it was Campbell’s obligation to seek leave from WCAT to respond to Bowden and Elliott’s application for a s. 257 determination. Campbell argued that the judge made an error in holding that the onus was on him to seek leave to make submissions on the Bowden and Elliot s. 257 application.
The appeal court noted that s. 257 of the WCA provides a process for determining whether a party was an employer or employee at the time of the accident. The court found that the WCAT panel provided detailed reasons for its decision, finding that Campbell’s claims fell within the WCA regime.
The court found that the judge did not place the onus on Campbell to seek permission to address the Bowden and Elliott application. Instead, the judge observed that if Campbell had genuinely intended to challenge the employment status of Bowden and Elliott, he had the opportunity to seek leave to file additional submissions at any time during the three months that it took WCAT to prepare its decision. This observation followed the judge’s finding that Campbell received notice of the Bowden and Elliott application they served him with their written submissions in response to the Emcon application.
The court also noted that Campbell knew that Bowden and Elliott were advancing a defence in the civil action based upon s. 10 of the WCA. The court also pointed out that they expressly pleaded that section in their response to the civil claim. The court agreed with the judge’s finding that Campbell’s submissions to WCAT were clearly and deliberately focused on establishing that he had stepped outside the course of his employment rather than addressing the employment status of the other parties.
The court concluded that the absence of submissions by Campbell in response to Bowden and Elliott’s s. 257 application did not render the WCAT proceeding unfair or that Campbell was not afforded a fair opportunity to be heard in response to the Bowden and Elliott application.
