The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on April 5, 2004, at the appellant's request. The Panel discussed this appeal on the same day.

Issue

Whether or not the plaintiff's right of action is removed pursuant to the provisions of The Workers Compensation Act.

Decision

That the plaintiff's right of action has not been removed pursuant to the provisions of The Workers Compensation Act.

Decision: Unanimous

Background

On March 24, 2003, the applicant's general manager submitted an Employer's Report of Injury or Occupational Disease form to the Workers Compensation Board (WCB) for an injury that took place on February 2, 2002 to the respondent. The respondent was classified as a Canadian Ski Patrol Volunteer at the time of the incident. It should be noted, as well, that the respondent did not file a worker's report of injury form with the WCB.

In a letter from the WCB's employer services branch dated March 31, 2003, the applicant was advised that the WCB was unable to consider the claim as the respondent was a "volunteer" of the Canadian Ski Patrol. Individuals who were not paid directly for their services were not covered with respect to WCB coverage (i.e. volunteer). The letter further stated,

"In addition, in your letter dated March 24, 2003, you requested that this claim be considered under the same provisions of the Workers Compensation Act under which volunteer fire fighters are covered. Unfortunately this is not possible. The Workers Compensation Act is specific in this regard as it relates to coverage for emergency fire fighters and the application is intended to address the issue of coverage for emergency fire fighters and not volunteers, Canadian Ski Patrol."

On April 21, 2003, a solicitor for the applicant filed a Notice of Appeal pursuant to Section 68(4) of The Workers Compensation Act (the Act). On April 5, 2004, an oral hearing took place at the Appeal Commission to consider the issue as detailed above.

Reasons

Workers compensation was first introduced into Manitoba in 1917 as a disability scheme, which was devised to compensate workers who were injured as a result of workplace accidents. The system is based on no fault insurance principles designed to provide an expeditious remedy to an injured worker without having to resort to litigation.

The Workers Compensation Act of Manitoba (the Act) establishes a social contract of insurance whereby workers have relinquished their right to sue in exchange for reasonable compensation regardless of fault and on the other side of the equation, whereby 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:

"The right to compensation provided by this Part is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, or his legal representative, or his dependents, are or may be entitled against the employer, for or by reason of personal injury to, or the death of, the worker occasioned by any accident which happens to him arising out of, and in the course of, his employment; and no action in any court of law against the employer in respect thereof thereafter lies."

The contractual entitlement to immunity from suit is set out in section 9(7) of the Act:

"In any case within subsection (1), the worker, his or her legal personal representative and dependents, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

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, as previously pointed out, section 9(7) restricts or limits this right as follows: a worker has "no right of action in respect of the accident against an employer in an industry, or against a worker of such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

It should be noted, as well, that once an injured worker makes an application for compensation and the claim is approved by the Workers Compensation Board (the WCB), then according to section 9(5) of the Act, immediately on approval of the claim by the WCB any right of action for or in respect of a personal injury to that injured worker becomes vested in the WCB.

As the background notes indicate, this case involves an application by the defendant (applicant), named in Court of Queen's Bench Suit No. CI 103-[numbers], requesting that the Appeal Commission determine, pursuant to section 68(4) of the Act, whether or not the plaintiff's (respondent) right of action against it has been removed by the provisions of the Act. Section 68(4) states as follows:

"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."

The exclusive jurisdiction to make such a determination has been specifically conferred on the Appeal Commission by virtue of section 60.8(1)(b) of the Act. It is also significant to note that the Appeal Commission's decision and ruling with respect to such matters in question is conclusive and final. In addition, once it has been determined that the right of action has been removed by the Act, then the action or suit shall be forever stopped from going forward.

The basic facts giving rise to this application are, by and large, not in dispute. According to the pleadings filed in the Court of Queen's Bench by the plaintiff, an accident took place in February of 2002, at which time the plaintiff sustained personal injury as a result of his accidentally coming into physical contact with a wooden power pole supported by a similar sized wooden power pole anchor while he was skiing downhill. The plaintiff was a qualified member of the Canadian Ski Patrol, and was checking one of the ski runs, consistent with his ski patrol responsibilities, when the accident occurred. As a result of the plaintiff's coming into contact with the pole anchor, he suffered a comminuted distal fracture, a broken nose and a shattered right upper knee joint together with bruising to his chest and back.

The defendant's counsel contends that the plaintiff was at the time of the accident a worker within the meaning of the Act who was working in the course of his employment for a covered employer and therefore the plaintiff's right of action in Court of Queen's Bench Suit No. CI 103-[numbers] as against the defendant (applicant) should be removed pursuant to the provisions of the Act. The plaintiff's position is that he was a volunteer, and not a worker, and accordingly the Act does not cover his injuries.

After having reviewed and considered all of the evidence, we were able to make the following findings of fact:

• The defendant's business as a ski hill operator was not considered to be a compulsory industry by the WCB.
• The defendant's business did, however, register for voluntary coverage with the WCB, and was a covered employer under the Act at the time of this incident.
• The incident leading to the plaintiff's injuries took place on the defendant's premises.
• On the day of the accident, the plaintiff was skiing at the defendant's ski hill and was doing so as a member of the Canadian Ski Patrol (CSP). He received a free ski pass from the defendant, allowing him access to the ski hill.
• The plaintiff was responsible for his own transportation costs to and from the ski hill. In this particular case, the plaintiff traveled approximately 120 miles to and from the ski hill at his own expense.
• The CSP provides training and certification to skilled skiers that allows them to provide on-hill emergency medical and evacuation services and ensure the safety of skiers. This involves checking on the status of runs, assisting skiers in trouble, and ensuring that the hill is clear at the end of the day.
• The CSP mandate is clearly targeted at providing services to fellow skiers and not to the ski hill. Ski hills specifically indicate that skiers go onto the hills at their own risk, however the defendant does acknowledge that prompt attention to medical situations affects its reputation.
• The CSP is given a room to use at the ski hill, to store its equipment and to use for basic medical treatment. On the day of the accident, the plaintiff signed in at the CSP room, and took on ski patrol responsibilities that day.
• The defendant had in its employ full time salaried ski patrollers.
• The CSP works with ski hills to augment the numbers of qualified ski patrollers who are available. These will vary depending on the anticipated volumes of skiers, and is arranged in a consultative process between the CSP leader and the ski hill manager.
• CSP skiers are given free ski passes, for themselves and for a companion, when they arrive at the hill. They also receive discounts at the ski hill restaurant and shops. The defendant also offers occasional rewards to high-attendance CSP skiers - equipment deals, a discounted ski trip to the Rockies, and a $100 reimbursement (toward CSP license fees) to patrollers who put in more than 100 hours of ski patrol duties per year.
• The plaintiff paid his own CSP license fees and paid for his own training. He also purchased his own CSP jacket and ski equipment.
• There was no specific time commitment required of the plaintiff (or any CSP member) by the defendant. The evidence of the plaintiff is that he would call if he felt like skiing on a given weekend, and would sometimes receive a call asking if he was interested in acting as a ski patrol. He had the right to accept or decline those offers.
• There was, in fact, sporadic attendance on the part of the plaintiff as a ski patroller at this particular ski hill, based on the sign-in sheets that were introduced as evidence.
• The plaintiff was not specifically solicited to attend the ski resort and to patrol the ski hill on the day of the accident.
• The plaintiff was in fact only available for 2% of the total number of potential ski days in a season.
• Ski patrollers provide their services for a number of reasons, which include a concern for the safety of fellow skiers, an interest and pride in the types of training and the certification they receive, the right to wear the CSP jacket and the prestige associated with being a ski patroller as well as having unlimited skiing free of charge.

Counsel for the defendant has referenced a number of cases dealing with the issue of whether or not an individual was a worker within the meaning of the Act and whether or not the individual received any remuneration or gained any benefit which was equivalent to remuneration of benefits. While the cases were instructive, the Act nevertheless prescribes that an Appeal Panel should decide each case before it in accordance with the 'real merits and justice of the case' and that it 'is not bound to follow strict legal precedent'. However, we do, as a matter of course, examine the cases to which we have been referred for guidance and direction.

Much of the defendant's case was based on the premise that any form of remuneration would be sufficient to qualify the plaintiff as a worker under the Act and in this case focused on the free ski passes, the food and shop discounts, and the availability of discounted ski trips and equipment packages as being sufficient. As such, the plaintiff would be working under a contract of service, written or oral, express or implied, as defined in Section 1(1) of the Act. The plaintiff counters that he was not a "worker" but rather a volunteer.

Our review of the cases cited by counsel for the defendant suggests, for the most part, factual scenarios that are significantly different from the case at hand. An earlier Manitoba Appeal Commission decision No. 73/2002 concluded that monetary remuneration was not necessary for a person to be classified as a worker. However, the facts of that case disclosed that the individual had been employed seasonally by the employer and during the balance of the year (when he got injured) he received free rent and utilities from his employer and was "on call" to perform other duties. Other Ontario cases deal with an individual helping a worker at a service station (found not to be a worker), an individual helping at a worksite after being told there was no work (found not to be a worker) and an inmate doing some cleaning work for no remuneration (found not to be a worker).

Counsel for the defendant also referred to Ontario WCAT Decision 302/88 that suggests people who volunteer to participate in emergency situations, or people who are summoned or compelled to do so are, in certain circumstances, to be considered workers. Counsel further commented that voluntary fire fighters and ambulance brigades are specifically included as "workers" under the Act, in support of the position that the Act favours a broad inclusive interpretation in this area. We note, however, that there may be specific public policy reasons for the limited extension of coverage under the Act and that the Act does not specifically refer to ski patrols or similar organizations such as St. John's Ambulance medical aid providers. We also have some difficulty in equating the risks that a ski patroller would have during the day with those faced by fire fighters or ambulance crews, based on the evidence presented on the job duties of a ski patroller.

Regarding the distinction being drawn between the terms "worker" and "volunteer," we note that volunteers are not defined under the Act. Dictionary definitions of "volunteer" typically describe a person who gives his/her services without any express or implied promise or expectation of remuneration.

We note that volunteerism is very much part of community life, and many organized community structures are literally supported by volunteers who work long hours, and often on assigned shifts. In lieu of being paid a salary, the volunteer quite often receives such things as free T-shirts, meals, accommodation, travel allowance, uniforms and the opportunity to watch the event at no charge. Whether these are officials at track meets, coaches of basketball teams, or volunteers at music festivals, these individuals are part of a process that allows otherwise financially unfeasible events to take place, to the advantage of the broader community. These events simply would not take place if it were not for the presence of those volunteers, as the events could not afford to fill those hundreds or thousands of positions with salaried employees.

Acceptance of the defendant's argument would mean that any of the forms of remuneration listed above; t-shirts, meals, accommodations, travel allowances and the like, should all automatically qualify as "remuneration" leading to a contract of service and would thus constitute all such similar volunteers as "workers" under the Act. To do so, in this particular case, would, not only, be extending the general definition of "worker" under the Act, but also, the general definition of "employer", so as to include a host of charitable organizations, incorporated as well as casual.

In this case, it is clear that the Canadian Ski Patrol, and the plaintiff as one of its representatives, is performing a public service in ensuring the safety of fellow skiers. While the provision of these services also benefit the defendant, we note that the reporting and scheduling relationships are casual, and that the primary remuneration offered in this case ski passes and shop and restaurant discounts are easily offset by the significant travel costs incurred by the plaintiff, as well as the plaintiff's personal responsibility for his own training, certification and uniform. We find that the benefits offered by the defendant to the applicant do not qualify as "remuneration", but rather, should be considered as tokens of appreciation for the volunteer services provided. The costs of these benefits to the defendant were also minimal.

It is also clear from the evidence that the plaintiff was performing these activities during his discretionary leisure time and that there are social and community benefits that he experienced in performing these duties. The plaintiff owns several businesses from which he derives his income and these volunteer commitments were not undertaken for the purpose of being hired by the defendant as a part or full-time ski patrol. While the defendant's evidence is that full-time ski patrol employee positions are often offered to CSP skiers who volunteer at the ski hill, we find that this is not a persuasive factor in our deliberations. We note, however, that such positions are infrequently available and only of interest to a small subset of the volunteer group.

After having thoroughly considered all of the evidence as well as the arguments advanced, we find, on a balance of probabilities, that the plaintiff and the defendant did not have a "contract of service" between them, and as such, the plaintiff was not a 'worker' within the meaning of the Act. Therefore, we further find and conclude that the plaintiff's right of action has not been removed pursuant to section 68(4) of the Act. Accordingly, the applicant's appeal is hereby dismissed.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

R.W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 31st day of May, 2004