Public Decisions | The Appeal Commission

Decision #96/01 - Type: Workers Compensation

Preamble

An Appeal Panel hearing was held on June 13, 2001, at the request of legal counsel, acting on behalf of the employer and both third parties. The Panel discussed this appeal on June 14, 2001.

Issue

Whether or not the claimant's right of action is removed pursuant to Section 68(4) of the Act.

Decision

The action against the defendant co-workers is not stature barred;

The action against the employer in respect of an alleged workplace accident is statute barred; and

The action against the employer in respect of wrongful dismissal is not statute barred.

Background

The claimant (hereinafter referred to as the plaintiff) filed a Statement of Claim in The Queen's Bench against two co-workers (co-workers B and V) and her employer. The plaintiff alleged intentional and wrongful assault while on the job by co-workers B and V and that the employer was vicariously liable for these actions.

In a letter to the Appeal Commission dated September 21, 2000, legal counsel for the employer requested the Appeal Commission to adjudicate and determine whether the plaintiff's right of action was removed pursuant to Section 68(4) of the Workers Compensation Act.

The following is a brief summary of the facts alleged in the Statement of Claim filed by the plaintiff:

Between March and September 1997, co-workers B and V intentionally and wrongfully assaulted the plaintiff by attempting to hug her and place their arms around her and by making lewd and sexual remarks to the plaintiff about her breasts.
Around June 12, 1997, co-worker B intentionally and wrongfully assaulted the plaintiff by approaching her from behind and cornering her in the cash area of the store by placing his hands on either side of the counter in front of the plaintiff and then pressing the full length of his body against the plaintiff which actions amounted to a battery upon the plaintiff.
On June 13, 1997 or thereabouts, the plaintiff verbally complained about the actions of co-worker B to the store's manager, thereby placing the employer on notice that the incident complained of was not an isolated incident and that the plaintiff could not work with co-worker B. The verbal complaint was followed by a written complaint dated June 16, 1997.
In July 1997, following return from holidays, the plaintiff was advised that she was scheduled to work with and in fact did work the same shifts as co-worker B. Co-worker B was uncooperative to work with and acted in a rude manner towards the plaintiff, i.e. refusing to associate with the plaintiff in carrying out the normal duties required by her employer, ignoring the plaintiff when she directed a work related comment to co-worker B or not performing his share of duties.
A new assistant manager (co-worker V's brother) was assigned to the store following the plaintiff's return from holidays. The plaintiff indicated that the new assistant manager continuously pressured her to quit and commenced a course of conduct against the plaintiff which made it impossible for her to continue her employment. The new assistant manager insulted and criticized the plaintiff by stating that she was lazy and was no good as an employee, all of which criticisms were unjustified and untrue. In or around August 1997 the plaintiff resigned her job due to the intolerable working condition.
The plaintiff pleaded that both co-workers willfully and without reason or cause uttered immoral and sexually offensive statements in order to intentionally or recklessly cause emotional distress to the plaintiff. The plaintiff pleaded that both co-workers knew or ought to have known that she would be seriously upset by the statements and that such statements would likely cause injuries to the plaintiff. Actions made by both co-workers were a willful infliction of nervous shock.
The plaintiff claims that the employer was vicariously liable for the actions of its employees (both co-workers). The plaintiff pleaded that the employer's failure to take appropriate steps to rectify her complaint about the actions of both co-workers created such an intolerable work environment that her resignation amounted to a constructive dismissal.
The plaintiff pleaded that in the alternative, the actions and omissions of the employer constituted negligence, i.e. failure to organize shifts to ensure that the plaintiff and co-worker B did not work together; failure to transfer co-worker B to a different store, etc.
As a result of the actions of both co-workers, the plaintiff pleaded that she suffered acute anxiety and depression and that she remained under the care of medical specialists, psychiatrists and counsellors and that she continues to require treatment. The plaintiff indicated that she has been unable to carry out her normal tasks of living and has lost the enjoyment of life. The plaintiff had suffered from traumatic, emotional and nervous upset thereby affecting her manner of living. The plaintiff feels that both co-workers are jointly and severally liable for her damages and in addition or alternatively, the employer was vicariously liable for her damages as a result of the actions of both co-workers.
The plaintiff pleaded that as a result of the actions of both co-workers and the employer that she has been unable to continue her employment with the employer and has thereby suffered a loss of income. As a result of the actions of both co-workers and employer, the plaintiff pleaded that she has incurred special damages for, inter alia, doctors' accounts, medication, transportation and other related expenses. The plaintiff felt that the conduct of both third parties and the employer had caused her humiliation, loss of dignity and pride.

On June 13, 2001, an oral hearing was convened at the Appeal Commission to hear arguments from all concerned parties pertinent to this case.

Reasons

THE ISSUES

This is the case of a worker who alleges that she was sexually harassed in the workplace, causing her injury, for which she did not file a claim for workers compensation. Instead, she filed an action in Queen's Bench seeking redress from the employer and two co-workers for her injuries. In addition, the plaintiff alleges that actions of the employer and co-workers, in the aftermath of the alleged incident, forced her to resign, for which she is also seeking damages.

The principal issue before The Appeal Commission was whether or not any of her rights of action are removed pursuant to section 68(4) of The Workers Compensation Act ("the Act'). The appeal was brought by the defendants named in the action: the employer and the two co-workers.

As there are a number of causes of action contained in the Statement of Claim, the panel must address a number of specific issues in this appeal.

Employer Issues

The plaintiff's Statement of Claim contains a number of possible causes of action against the employer. Of these, two are matters which the panel has been asked to consider:

whether or not the claims against the employer in respect of the injuries allegedly suffered by the plaintiff in the workplace are covered by Section 13(1) of the Act (Issue #1); and
whether or not the claims against the employer in respect of the constructive or wrongful dismissal of the plaintiff are covered by Section 13(1) of the Act (Issue #2).

If so, then the plaintiff's causes of action may not proceed.

For the employer's appeal on the first issue to succeed, the panel must determine that the injuries noted in the pleadings, if proven, are matters covered by the Act. If so, then the action against the employer, in respect of the claimed injuries, is statute-barred. It will then be up to the adjudication division of the Workers Compensation Board to determine whether or not a compensable injury occurred, as defined by the Act and Board Policy.

For the employer's appeal on the second issue to succeed, the panel must determine that the action for constructive dismissal falls under the Act. To come to that conclusion, the panel would have to find that the plaintiff's decision to resign was causally related to the workplace incident(s), either directly or as a reasonable sequela of the incident(s). If not, then the action may proceed.

Co-Workers Issues

The Statement of Claim lists two co-workers (B & V), the alleged perpetrators, as co-defendants in the action, and seeks redress from them. The Statement of Claim also asks that the employer be held vicariously liable for the actions of its employees. The co-workers have asked this commission to determine that they are protected by Section 9(7) of the Act and that the actions against them are barred. (Issue #3)

The employer has asked the commission to determine whether or not the action for vicarious liability for the actions of the co-workers is protected by section 13(1) of the Act, with that cause of action, thus, barred. (Issue #4)

For the co-workers' appeal to succeed, the panel must determine that, in committing the alleged sexual harassment, the co-workers did not take themselves outside of the course of their employment. If so found, the action is barred. If not, then the action against them may proceed.

The Panel's Findings

First, it is not the role of the panel to adjudicate or make findings of fact on any of these matters. The panel's role, as outlined to all counsel in this proceeding, is to determine whether the allegations, if proven, are a matter covered by The Workers Compensation Act. If so, the right of action is removed and the plaintiff's right is to claim compensation. If not, then the actions may be pursued in the Court of Queen's Bench.

It must be noted that, for the purposes of this appeal only, the parties have agreed that the incidents did occur as alleged in the plaintiff's Statement of Claim.

We have determined, in respect of Issue #1, that the injuries suffered by the plaintiff would be compensable, if it is determined, by the WCB, that they arose out of and in the course of her employment. Thus, this action against the employer is barred by Section 13(1) of the Act.

For Issue #2, we have found that there is nothing in the Act to bar the action against the employer for constructive dismissal. It may proceed.

For Issue #3, we find that the two co-defendants, the co-workers, did take themselves out of the course of their employment and, thus, are not protected by Section 13(1) or 9(7) of the Act. This action may proceed.

For Issue #4, we find that the protection afforded the employer in Issue #2 prevents an action against the employer for vicarious liability for the injuries allegedely suffered by the plaintiff at her workplace.

RELEVANT LEGISLATION

The authority for this panel to determine whether or not an action may proceed is conferred by sections 60.8(1)(b) and 68(4) of the Act, which read:

(b) determinations under subsection 68(4).

Board to determine right of action
68(4) Where an action in respect of an injury is brought against an employer or a worker of an employer by a worker or the legal personal representative or a dependant of the worker, the board has jurisdiction, on the application of a party to the action, to adjudicate and determine whether the right of action is removed by this Act; and the adjudication and determination is final and conclusive, and if the board determines that the right of action is removed by this Act, the action shall be forever stayed.

According to section 9(1) of the Act a worker, who is injured in the course of his employment and who is entitled to compensation as a consequence thereof, has the right to claim compensation or to bring an action against some person other than his employer should the circumstances so warrant. However, section 9(7) restricts or limits this right as follows:

Workers compensation was first introduced into Manitoba in 1916 as a disability scheme, which was designed to compensate workers who were injured as a result of workplace accidents. The Workers Compensation Act establishes a social contract of insurance whereby workers have relinquished their right to sue in exchange for reasonable compensation regardless of fault. On the other side of the equation, employers have received immunity from suit in exchange for their funding the costs of the scheme. The contractual entitlement to compensation in lieu of other rights is set out in section 13(1) of the Act:

Other relevant legislation will be noted in the discussion in respect of specific issues.

AGREED MATERIAL FACTS

For the purposes of this appeal only, the parties agreed to a number of material facts. We find that the following are relevant to our considerations in this appeal:

Between March and September 1997, the two co-workers assaulted the plaintiff by attempting to hug and put their arms around her, and by making lewd and sexual remarks to and about her.
In June 1997, one co-worker assaulted her by approaching her from behind, cornering her by placing his hands on either side of her and on a counter and then pressing the full length of his body against her.
The day after this last incident, the plaintiff reported the incidents to the employer.
A new Assistant Manager, who happened to be the brother of one of the co-defendants, was assigned to the workplace.
This Assistant Manager commenced a course of conduct against the plaintiff which included insulting her, accusing her of laziness and criticizing the quality of her work.
The plaintiff found this led to an intolerable working condition and, as a result, she quit her employment.
The plaintiff suffered acute anxiety and depression and remains under medical care. She has also suffered from traumatic, emotional and nervous upset.
An action by the plaintiff/plaintiff against the employer and the two co-workers was commenced in the Manitoba Court of Queen's Bench on February 25, 1999.

On September 21, 2000, counsel for the employer filed an application with The Appeal Commission, pursuant to Section 68(4) of the Act, asking the commission to adjudicate and determine whether the right of action was removed by the Act. This appeal was later joined by the two co-defendants.

ISSUE #1: ARE THE CLAIMS AGAINST THE EMPLOYER IN RESPECT OF THE ALLEGED INJURIES STATUTE-BARRED?

Does sexual harassment constitute a workplace accident?

The key to determining all of the above-noted "sub-issues" is whether or not what occurred would constitute a workplace accident. If not, then this appeal ends and all of the actions may proceed.

To resolve this issue, the Panel must consider:

Whether she suffered an injury for which benefits are payable under this Act, ie, was there an accident, as defined in the Act?
Whether the plaintiff was in the course of her employment at the relevant time?

The Act, in section 1(1), defines "accident" as:

"accident" means a chance event occasioned by a physical or natural cause; and includes

A wilful and intentional act that is not the act of the worker,
any
1. event arising out of, and in the course of, employment, or
2. thing that is done and the doing of which arises out of, and in the course of, employment, and
an occupational disease

and as a result of which a worker is injured."

WCB Policy 44.05.20 further interprets the definition of accident. Section A(1)(c) of that policy reads:

When determining whether an accident was in the course of employment, the WCB will consider:

What activity the worker was engaged in when injured in order to determine the connection with the employment (ie, did the injury result from a personal act, unrelated to the employment, or was there an employment connection).
Where the worker was performing the activity. The place the injury occurred is an element in determining the connection to the employment.
When the worker was engaged in the activity. This is also an important factor in determining whether the activity was "in the course of the employment" (i.e., did the activity occur at a time reasonably connected to the work shift).

Counsel for the employer argued that the actions of the two co-workers met the definition of sexual harassment as defined by the Supreme Court of Canada in Janzen et al v. Platy Enterprises Ltd. Et al (1989) 25 CCEL 4 (SCC). He further argued that these actions occurred while the plaintiff was in the course of her employment, noting in particular:

"She was engaged in her duties as an employee at the Store. She was not engaged in a personal act, unrelated to her employment at that time.
She was performing her employment activities while in the Store.
The acts complained of took place during her shift."

He argued this met the test set out in Board Policy for determining whether she was in the course of her employment.

He concluded this point by arguing that, since the actions occurred in the course of her employment, it follows, pursuant to Section 4(5) of the Act, that the accident is presumed to have arisen out of the employment, there being no proof to the contrary.

He continued by noting that the plaintiff suffered acute anxiety and depression, for which she remains under medical care, as well as suffering traumatic, emotional and nervous upset. He argued that these constitute injuries - specifically, a psychological condition - which resulted from the actions of the two co-workers. He noted Board Policy 44.20.60, which reads:

Where information indicates a psychological condition is a result of an accident arising out of and in the course of employment, the psychological condition attributable to the accident or its consequences shall be considered a personal injury by accident, for which compensation may be paid.

He submitted that this line of reasoning should lead to the conclusion that the sexual harassment of the plaintiff is an accident within the meaning of the Act, which caused a personal injury, for which compensation may be paid.

For her part, counsel for the plaintiff argued that a compensable accident did not occur in this situation; ultimately coming to the point that sexual harassment could not constitute a workplace accident.

Her first argument was that acts of sexual assault, battery and/or harassment are so remote from normal employment functions that the employment connection is broken for all parties -- the perpetrators, the victim and the employer.

To support this argument, she relied on Board Policy 44.05.20, clause 7, which reads:

In order to be compensable, an injury must not only arise within the time ("when") and space ("where"), but also from an activity related to the employment. "Arising from an activity related to the employment" includes fulfilling work duties or doing something incidental to the employment. The question is whether the activity has its origins in the employment (ie., is connected in a causal sense).
The WCB will make a distinction between an injury resulting from a personal cause and one resulting from the employment. Generally, an injury occurring on the employer's premises is considered to arise out of the employment unless the following apply:
1. The injury was the result of a personal action by the worker and was not caused by a:
  - a hazard of the premises; or,
  - an occurrence under the control of the employer.
2. The worker was engaged in an activity not incidental to the employment. The injury will be considered to be the result of a personal hazard where the activity was so remote from normal employment functions that the activity and resulting injury cannot be characterized as reasonably incidental to the employment. The determination is based on whether the activity breaks the employment connection.

Plaintiff's counsel presented a second argument in support of her premise that an accident, as defined by the Act, had not occurred. She asked us to adopt a strict interpretation of the Act's definition of 'accident'. She specifically focussed on the words "chance event", positing that, by putting these words in the operative line of the definition, the Manitoba statute requires that all accidents must be "chance events." She argues that an accident did not occur in this case, as the actions of the two co-workers were not chance events, but were deliberate.

We note, however, that the definition of accident goes on to state that a chance event may include "a wilful and intentional act that is not the act of the worker". We are of the view that, were we to adopt the view of plaintiff's counsel, we would render this clause inoperative. This could ultimately relegate a majority of claims for compensation in this province to the dustbin.

Both counsel referred us to Decision No. 286/96 of the Ontario Workers Compensation Appeals Tribunal (WCAT). Plaintiff counsel also referred us to Decision No. 835/97. Both decisions dealt with similar issues to those before us: sexual harassment in the workplace, wrongful dismissal and whether or not civil action was statute-barred.

We found much of the reasoning, in both WCAT decisions, to be very persuasive. Although plaintiff counsel seemed to ask us to find support, in these decisions, for her position in respect of whether or not a compensable accident had occurred, we were unable to do so. We find both cases to be unequivocal in concluding that sexual harassment in the workplace does constitute an accident.

The Panel's Findings:

In coming to the same conclusion in this case, we adopt some of the reasoning set out in Ontario Decision No. 286/96. In its decision, the Panel wrote: "It is now accepted in Tribunal jurisprudence that a sexual assault falls within the meaning of an 'accident' under the Act." It quotes from an earlier Ontario decision, No. 712/90, which stated:

If a worker sustains a personal injury by accident arising out of and in the course of her employment, it matters not whether the injury results from an assault (sexual or otherwise) or a faulty piece of production machinery. In our view, the Plaintiff was involved in an "accident" which, under subsection 1(1)(a) includes a "wilful and intentional act, not being the act of the worker." The attack by the unknown assailant is a wilful and intentional act. Relying upon the above definition, we are satisfied that, under the Act, the Plaintiff sustained a personal injury by "accident."

We agree with this analysis and find that it applies to the situation before us. Accordingly, we conclude that an accident as defined in the Act did occur.

In considering the second element of this issue, we conclude that the plaintiff was in the course of her employment during the periods of the alleged sexual harassment. The incidents occurred during her workshift. She continued to - or, at least, attempted to - perform her normal functions. She did not participate willingly in the incidents, which might have taken all parties out of the course of their employment. There was nothing about the events that would have taken her out of the course of her employment.

Given our conclusions that an accident, as defined by the Act, did occur and that it occurred in the course of her employment, we further conclude that the plaintiff's right of action against the employer in respect of any personal injury is taken away by section 13(1) of the Act.

ISSUE #2: ARE THE CLAIMS AGAINST THE EMPLOYER IN RESPECT OF THE CONSTRUCTIVE DISMISSAL STATUTE-BARRED?

The issue to be determined here is whether or not the plaintiff's right of action in respect of wrongful dismissal is taken away by the Act.

Counsel for the employer noted that the plaintiff resigned from her position due to what she alleges in her statement of claim were intolerable working conditions following the incidents of harassment. He argued that her resignation was due to her inability to perform her duties as a result of the workplace injury. As such, he submitted, this action falls within section 13(1) of the Act and is also statute-barred. His position is that any and all actions which arise as a result of a workplace accident are barred by the Act.

He also argued the "historic trade-off", which is the fundamental underpinning of the workers compensation scheme in Canada. By this trade-off workers are given a statutory right to no fault compensation for workplace accidents in exchange for giving up the right to sue their employers for the results of such accidents. Any employer which falls under the statute receives the benefit of this trade-off. The employer in this case is a covered employer.

Plaintiff's counsel referred us to Pasiechnyk v. Saskatchewan (WCB) (1997) 149 DLR (4th) 577 (SCC), wherein the Supreme Court of Canada underscored the importance of the historic trade-off. Beyond, that, however, that case is of little help to us as it does not address causes of action other than those related to compensation for workplace injuries.

Counsel for the employer also relies on the Alberta Court of Appeal decision in Medicine Hat (City) v. Wilson [2000] ABCA 247 to support his premise that Section 13(1) was designed to bar a suit by a worker against his or her employer for any alleged work related injury. Again, this is not a case which deals with a number of different causes of action, as in the case before us.

Counsel did present us with a decision - No. 28/94 - of the Ontario WCAT which did consider whether or not an action for wrongful dismissal was barred by statute. In that case, as here, the plaintiff resigned his position following a disabling workplace injury. In his letter of resignation, the plaintiff stated that his "principal reason for taking this decision is the fact that the permanent handicap inflicted upon me.prevents me from discharging my duties with ease and efficiency." He repeated this assertion in his statement of claim: that his workplace injury led to his resignation. The tribunal found that this action was "for or by reason of any accident happening to the worker." Thus, it came under the purview of the statute and was statute-barred.

Counsel for the employer asked us to distinguish WCAT decision No. 286/96 (noted above), which decided that an action for wrongful dismissal could proceed. His reasoning was that, in that case, the employee was involuntarily terminated, thus creating a distinct labour relations issue. He argues that the situation before us is different in that the plaintiff resigned voluntarily.

In countering this argument, counsel for the plaintiff submitted that the plaintiff in this matter "tendered her resignation as a result of the working conditions created, essentially, by [the employer] and that that situation arises by virtue of the employment contract between [the employee] and [the employer]"

She noted that the plaintiff reported the incidents to the employer in a timely manner. Following this, the employer continued to schedule the plaintiff to work the same shifts as one of the alleged perpetrators. The company assigned the brother of one of the alleged perpetrators to work as Assistant Manager in the same store. The plaintiff alleged, in her Statement of Claim, and this was agreed to by all parties for the purposes of this hearing, that this Assistant Manager commenced a course of conduct against the plaintiff which included insulting her, accusing her of laziness and criticizing the quality of her work.

The plaintiff alleges that all of these acts by the employer created an intolerable work situation, in which she could no longer work, forcing her to resign. Her counsel argued these actions of the employer constituted discrete managerial decisions respecting labour relations.

We agree with the plaintiff. We find that the reasoning in WCAT decision No. 28/94 does not apply in this situation. In that case, the plaintiff readily admitted that his resignation stemmed solely from the aftermath of the injury. In this case, it was argued, and we find, that a number of intervening events and factors other than the alleged injury led, at least in part, to the decision to resign.

We conclude that the plaintiff should not lose her common law right to have these matters considered by the courts. We find that the plaintiff's claim for wrongful dismissal does not arise from her personal injury but from subsequent management decisions that do not fall under Section 13(1) of the Act

Accordingly, this action against the employer for constructive dismissal may proceed.

ISSUE #3: ARE THE CLAIMS AGAINST THE CO-WORKERS STATUTE-BARRED?

At issue here is whether or not the two co-workers were in the course of their employment when the accident/sexual harassment occurred. If it is determined that they were, then they are protected by the Act. However, if it is determined that they were not acting within the scope of their employment, then the action may proceed.

Sections 9(1) and 9(7) of the Act are relevant to this consideration, and are noted earlier in these reasons.

Counsel for the two co-workers argued essentially the same position, asking us to find that the acts of their clients, which led to the accident, occurred in the course of their employment as defined in the Act and policy. They noted that the incidents happened while the parties were doing their jobs at their workstations. Thus, they argued, the co-workers' conduct was sufficiently incidental to their employment and the usual operations of the job to meet the test set out in Section 9(7).

They argued that their clients are obnoxious co-workers whose offensive behaviour caused great upset to the plaintiff. However, they submitted, obnoxious behaviour is an incident of employment.

Both counsel asked us to consider the degree of aggression in the alleged assault; in particular, to contrast the acts here with those in the above-noted Ontario case, No. 286/96, wherein the sexual assault was especially physically aggressive. We were asked to come to a different conclusion than in that case, due to the fact that the Ontario case involved a clearly criminal act, whereas in this case, the acts of harassment were much less severe. One counsel described them as "an attempt at horseplay".

We are not required to make a finding as to whether or not what occurred here is criminal activity. However, for our purposes, we would adopt the position that sexual harassment is not a matter of degree. The fact that the assault in this case was less physically aggressive than in the WCAT case does not take away the fact that an act of sexual harassment occurred. Counsel for the employer referred us to a Supreme Court of Canada decision - Janzen et al v. Platy Enterprises Ltd. Et al, 1989, 25 CCEL - in which Chief Justice Dickson, writing for the majority, wrote:

". I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of harassment."

We find this definition to be very helpful in concluding that what occurred in this case was more than horseplay or obnoxious behaviour.

Counsel for the plaintiff argued that the two co-workers were not protected by the Act, as they took themselves outside of the course of their employment. In support of this premise, she cited the same Ontario case, which held:

"In our opinion, The Workers' Compensation Act is not intended to shield persons who commit physical or sexual assaults on other workers who are in the course of their employment. Where the facts in a case clearly establish that there was an aggressor and a victim, it is nonsensical to speak of the action being reasonably incidental to employment. Tribunal decisions have established that broad latitude is given to bringing commonplace, everyday activities in the workplace that result in injuries within the scope of reasonably incidental to employment. . The protective umbrella of compensation may well have been intended to cover workers from the unexpected results of apparently benign activities; it was not, in our view, designed to provide cover for essentially criminal acts. It is fair, this Panel finds, to suggest that workers are not in the course of their employment when they are committing malign acts with predictable results - harm to another person."

We agree with this analysis and note that the alleged workplace incidents in this matter refer to systematic and unwelcome verbal and physical assaults over an extended period of time by the two co-workers against the plaintiff. The actions, if proven go beyond "apparently benign activities" and appear to be "malign acts with predictable results" that would take the co-workers out of the course of their employment.

We note that counsel for one of the co-workers asked us to distinguish the Ontario WCAT decision, as, he argued, the Manitoba statute has different wording than that in Ontario and should lead to a different conclusion. We did not find this argument to be very persuasive, and find the wording in the two statutes to have the same intent.

Nor did we find persuasive the other arguments of the two counsels for the co-workers. We find that the activities of the two co-workers, whether they were "horseplay", "obnoxious behaviour", or "criminal activity" were carried on outside of the course of their employment. These activities, in our view, were not "within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

Accordingly, we hold that this action against the co-workers may proceed.

ISSUE #4: IS THE CLAIM AGAINST THE EMPLOYER IN RESPECT OF VICARIOUS LIABILITY STATUTE-BARRED?

We note that counsel for the plaintiff argued in the Statement of Claim and before us that the employer is vicariously liable for the actions of its employees. We reference our decision on Issue #1, which held that the action against the employer for any injuries suffered by the plaintiff is statute-barred, because the injuries arose out of and in the course of her employment with a covered employer. Therefore, it follows that, insofar as any action proceeds against the co-workers in respect of alleged injuries suffered by the plaintiff, the employer is protected against suit by section 13(1) of the Act and, thus, is not vicariously liable in this regard.

CONCLUSION

In summary, our decisions are as follows:

Regarding the Plaintiff's action against the defendant employer in respect of any personal injury, we conclude that this right of action is taken away by section 13(1) of the Act.
Regarding the Plaintiff's action against the defendant employer in respect of wrongful or constructive dismissal, we conclude that this action may proceed.
Regarding the Plaintiff's actions against the defendant co-workers, we conclude that this action, or these actions, may proceed.
Regarding the Plaintiff's actions against the employer for the vicarious liability of its employees, we conclude that no action may proceed in respect of any injuries suffered by the plaintiff.
We take no position in respect of any other actions which may arise out of the Statement of Claim.

Panel Members

T. Sargeant, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

T. Sargeant - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 27th day of July, 2001

Back