The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was held on September 22, 2004, at the request of the appellant. The Panel discussed this appeal on the same day.

Issue

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

Decision

That the right of action is removed pursuant to the provisions of The Workers Compensation Act.

Decision: Unanimous

Background

This case arises from an accident in which a worker died. File information revealed that the worker's spouse filed a claim with the Workers Compensation Board (WCB) which was accepted and benefits were paid accordingly.

On July 12, 2002, a Statement of Claim in the Court of Queen's Bench against the applicant, claiming damages under The Fatal Accidents Act of Manitoba, C.C.S.M. c.F50 (the "FAA"). In response to the Statement of Claim, the applicant filed a Statement of Defence in February 2003.

Pursuant to subsection 68(4) of The Workers Compensation Act (the "WCA"), the applicant applied to this Commission for a determination that the right of action was removed by the provisions of the WCA.

On May 10, 2004, the Appeal Panel met with counsel for both parties to discuss the issues to be considered, the nature of the materials to be filed and the procedure to be followed at the hearing. On September 22, 2004, an oral hearing was held to determine the issue as detailed above.

Reasons

The applicant in this matter has brought an application pursuant to the provisions of section 68(4) of the WCA, seeking a determination as to whether the right of action is removed by the WCA.

The action, in which the applicant has been named as defendant, was made pursuant to the provisions of the FAA. It is brought by and on behalf of relatives of a worker who is now deceased, against the applicant who at the time of the worker's death, was the employer of the worker. The action claims compensation under the FAA for damages resulting from the death of the worker. The named plaintiff in the action, who is the respondent in this application, is the administrator of the deceased's estate, having been granted Letters of Administration by the Manitoba Court of Queen's Bench.

It is the position of the applicant that the combined operation of sections 4(1) and 13(1) of the WCA leads to the conclusion that the right of action in this case is removed. The applicant argued before us that under section 4(1) of the WCA, by reason of the deceased's accident, compensation was to be paid by the Workers Compensation Board ("WCB"). By virtue of the wording of section 13(1) of the WCA, the right to compensation under section 4(1) is in lieu of all rights of action to which the deceased worker, his legal personal representative (in this case the respondent), or his dependents might be entitled to bring against the applicant, as the deceased's employer. Therefore, he argues, no action in any court of law against the applicant in respect of the accident, lies.

The following sections of the WCA are relevant to this application:

Compensation payable out of accident fund

4(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of the employment is caused to a worker, compensation as provided by this Part shall be paid by the board out of the accident fund, subject to the following subsections.

Right of action against person other than employer

9(1) Where an accident happens to a worker in the course of his employment under such circumstances as entitle him or his dependants to an action against some person other than his employer, the worker or his dependants, if entitled to compensation under this Part, may claim the compensation or may bring such an action.

Limitation of right of action

9(7) 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.

Board to decide all claims

12 No action lies for the recovery of compensation under this Part; and all claims for compensation shall be heard and determined by the board.

Compensation to be in lieu of other rights

13(1) 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 personal representative, or his dependants, 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.

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.

Based on the Agreed Statement of Facts, we find that at the time the accident which caused the worker's death occurred:

(a) the applicant was an employer in "an industry" within the scope of Part I of the WCA;

(b) the deceased was a "worker" within the meaning of section 4(1);

(c) "personal injury by accident" occurred, resulting in death; and

(d) the deceased's accident arose "out of and in the course of [his] employment".

Having made these same findings, the WCB determined that compensation was payable pursuant to the provisions of section 4(1).

Had the worker himself survived, therefore, he would have received compensation out of the Accident Fund for injuries sustained. Indeed, subsequent to the worker's death, his dependents, as that term is defined within the meaning of the WCA, received compensation out of the Accident Fund.

Section 12 of the WCA provides that no action lies for the recovery of compensation under Part I. Neither the deceased, had he lived, therefore, nor his dependents, would have been entitled to bring an action for the recovery of compensation.

The rationale for this is found in the wording of section 13(1) of the WCA which provides that the right to compensation provided by Part I is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, his legal personal 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. This section, therefore, sets out a statutory bar which affords immunity from suit, in certain circumstances.

The wording of section 13(1) is very broad with respect to the nature of actions which, the legislation contemplates, might be brought against an employer and to which the statutory bar applies. The bar only arises, however, where the right to compensation exists under Part I; that is, where compensation is payable, pursuant to section 4(1) and further, where the action sought to be removed is one which is brought against an employer in respect of an accident which arose out of and in the course of employment, all within the meaning of Part I. But the nature of actions which are statute barred once compensation is payable and the facts underlying the action fall within the wording of section 13(1), is very broad.

The section provides that the right to compensation is in lieu of "all rights and rights of action, statutory or otherwise". It further provides that "no action in any court of law against the employer in respect thereof thereafter lies." It is this last phrase of the section which provides ultimate authority for removing the right of action whenever a claim is brought against an employer in circumstances where compensation is payable and where the action relates to the accident which gave rise to entitlement to compensation. This interpretation, we believe, is in keeping with the purpose and intention of the legislative scheme of the WCA.

The history and purpose of workers compensation legislation was well set out by the Supreme Court of Canada in Pasiechnyk v. Saskatchewan (Workers' Compensation Board) online at [1997] SCJ No. 74. In that case the court discussed at para.25, what has become known as the

"…historic trade-off by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability."

The Supreme Court went on to discuss the importance of this trade-off which has long been recognized by the courts, as follows at para.26:

"In Reference re Validity of Sections 32 and 34 of the Workers' Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers' compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p.524:

While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible.

I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers' compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker's obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.

27 Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p.279 that the scheme is based on four fundamental principles:

(a) compensation paid to injured workers without regard to fault;

(b) injured workers should enjoy security of payment;

(c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and

(d) compensation to injured workers provided quickly without court proceedings.

I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers' Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide then with any insurance." [emphasis added]

The intention of the compensation scheme provided for in the WCA is further understood by having regard to sections 9(1) and 9(7) of the WCA. Section 9(1) of the WCA provides that where an accident happens to a worker in the course of his employment under such circumstances as entitle him or his dependents to an action against some person other than his employer, the worker or his dependents if entitled to compensation under Part I by falling within the provisions of section 4(1) can claim the compensation or may bring an action. However, the provisions of section 9(7) provide that in any case within section 9(1), that right of action will be taken away in respect of an accident against an employer in an industry in Part I 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. In other words, a worker is not entitled to elect between claiming compensation or bringing an action where the defendant in the action would be an employer or a worker of an employer in an industry within the meaning of Part I of the Act.

The combined effect of sections 9(1), 9(7), 12 and 13(1) of the WCA, therefore, makes it clear WCA's intention is to provide a scheme which affords compensation to workers who are injured in the course of their employment without their having to bring an action against their employer for such compensation and at the same time, to provide such employers, who have paid premiums, the benefit of knowing that they are immune from becoming the subject of litigation.

The action in the Court of Queen's Bench which forms the subject matter of this application involves a claim against the applicant/employer for damages arising as the result of a worker's death. There is no dispute between the parties that that worker's death arose out of and in the course of that worker's employment with the applicant. Since, based on the facts admitted by the parties, compensation was payable as a result of the accident which caused the worker's death, we find that, pursuant to the provisions of section 13(1) that right to compensation is in lieu of all rights of action which might be brought against the applicant, including the within action. Therefore, the right of the respondent to bring that action, is removed.

The respondent's counsel argued that while his client, and the parties on whose behalf the action is brought are all relatives of the deceased worker, they are not "dependents" of the deceased within the meaning of the WCA. There is no dispute between the parties as to that fact. The respondent's counsel went on, however, to argue that since those individuals were not themselves entitled to receive compensation under the WCA, the provisions of section 13(1) do not apply to their action and they do not, therefore, lose the right to bring an action for damages resulting from the death of the worker.

While we have sympathy for the position of the respondent and those on whose behalf she brings the action, we do not agree with that interpretation of the legislative scheme.

We find, in particular, that the interpretation the respondent wishes us to make of section 13(1) is too restrictive and is not in keeping with the intention of the legislation. In interpreting the Act we are guided by our understanding of the historical objectives of the legislative scheme, as discussed earlier. We are also guided by what has been referred to as the "modern" interpretation method of legislation in Canada, articulated by Professor R. Sullivan: Driedger On the Construction of Statutes (3rd ed. 1994) at p.131:

"There is only one rule in modern interpretation, namely, courts are obliged to determine the meaning of legislation in its total context, having regard to the purpose of the legislation, the consequences of proposed interpretations, the presumptions and special rules of interpretation, as well as admissible external aids. In other words, the courts must consider and take into account all relevant and admissible indicators of legislative meaning. After taking these into account, the court must then adopt an interpretation that is appropriate. An appropriate interpretation is one that can be justified in terms of

a) its plausibility, that is its … compliance with the legislative text;

b) its efficacy, that is, its promotion of the legislative purpose; and

c) its acceptability, that is, the outcome is reasonable and just."

We find, in interpreting the provisions of section 13(1), having regard to the purpose of the legislation as a whole, that where the facts giving rise to an action are such that compensation is payable out of the Accident Fund, no right of action will lie against the employer of the deceased, for a claim arising from that accident, regardless of whether or not the party bringing the action received compensation itself.

Therefore, although we agree that the respondent and those on whose behalf she brings the action are not themselves entitled to any compensation under the WCA, we do not agree that that fact brings their action outside the operation of the scheme of the WCA.

To accept that interpretation would be to subvert the intention of the legislation and would create a "loophole" or exception which was never intended. The intention of the legislative scheme is that employers who fall within Part I, as a result of paying premiums and participating in the scheme of the WCA, receive in exchange, an immunity from actions of any sort where personal injury or death is caused to a worker employed by them, as the result of an accident which happens to the worker arising out of and in the course of that worker's employment.

In keeping with the intention of the legislative scheme set out in the WCA, therefore, we find that on a plain reading of section 13(1), the respondent's right of action is taken away.

This interpretation is plausible in terms of its compliance with the legislative text. It promotes the legislative purpose of the WCA and is reasonable and just, having regard to the intention of the WCA to create a scheme whereby entitlement to compensation replaces all rights of action, statutory or otherwise.

As the applicant argued, if civil actions were permitted against employers by non-dependents of a worker, every fatality claim would potentially lead to a claim against an employer - something which would be contrary to the intention of the workers compensation scheme - being to keep workplace injuries out of the tort system in favour of a no-fault compensation scheme.

Fatal Accident Claims and The Workers Compensation Act

The applicant also argued that in determining whether the right of action is taken away in this case, we should examine the specific nature of the action itself.

The action is brought pursuant to statutory rights set out in the FAA. Section 2(1) of that act provides:

"Liability for damages caused by death

2(1) Where the death of a person is caused by wrongful act, neglect. or default, and the act, neglect, or default is such as would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof, the person who would have been liable, if death had not ensured, is liable for damages, notwithstanding the death of the deceased, even if the death was caused in circumstances amounting in law to culpable homicide."

This section, therefore, provides a statutory right of action to relatives of the deceased but only where, if death had not ensued, the deceased himself would have been entitled to maintain that action.

In this case, pursuant to section 4(1) of the WCA, compensation was payable out of the Accident Fund. Had the deceased survived he would have been entitled to receive compensation, personally. Since section 13(1) of the WCA provides that the right to compensation is in lieu of all rights of action, statutory or otherwise to which the deceased worker was entitled, it is clear that had the deceased, if he had survived, tried to bring an action against the applicant (his employer), his right of action would have been removed by the WCA.

The nature of fatal accident claims was discussed by the Manitoba Court of Appeal in Jaman Estate v. Hussain [1995] M.J. No. 264. The court in that case stated that a claim brought by the personal representative of a deceased on behalf of any beneficiary who acquires rights by virtue of the FAA is a derivative action and "As such it arises exclusively 'through' the deceased and is confined to those claims authorized by The Fatal Accidents Act."

The court went on to find that those who claim pursuant to a derivative claim can have no better rights than the individual "through" whom they are claiming.

Therefore, since we find that the right of action of the deceased worker, had he survived, would have been removed, the right of action of the respondent and the parties for whose benefit she brings the action and who therefore claim "through" the deceased, is also removed.

In Terence G. Ison, Workers' Compensation in Canada (2nd ed. Butterworths), the author discussed the immunity to suit principle in workers compensation schemes in the context of fatal accident claims, as follows, at page 167:

"8.1.10. Derivative actions. The statutory bar applies to all claims which depend for their validity upon the worker having had a good cause of action. Thus in fatal cases, the bar applies to any claims by the worker's family for wrongful death. This is so, even though the people claiming in the action for wrongful death might not be eligible for benefit under the Workers' Compensation Act … [emphasis added]

This latter point is further answer to the argument made by the respondent, discussed above.

The parties could not point to any Manitoba decisions that have considered the specific relationship between claims brought under the FAA and the provisions of the WCA. The leading Ontario authority which has considered this relationship is Re Butler Trucking Co. et al and Brydges et al (1984), 46 O.R. (2d) 686 (Ont.H.C.). This case arose out of a fatal injury sustained by a worker in a motor vehicle accident. Both the fatally-injured worker and the driver of the vehicle that was responsible for the accident were employed by Ontario employers covered under the Workers' Compensation Act R.S.O. 1980, c.539 (the "Ontario WCA"). Both drivers had been operating their vehicles in the course of their employment. Brydges, the father of the deceased worker, brought an action on his own behalf and on behalf of other family members under Section 60 of The Family Law Reform Act (Ontario) R.S.O. 1980, C.152 (the "FLR Act") against the at fault driver's employer, Butler Trucking, alleging negligence on the part of Butler Trucking's driver. Section 60 of the FLR Act provided as follows:

"60(1) Where a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part II, children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction."

Butler Trucking made application to the Ontario Workers' Compensation Board (the "Ontario WCB") pursuant to the Ontario WCA for a declaration that the rights of action of the deceased worker's father and other family members had been taken away by the immunity to suit provisions in the Ontario WCA, which were, in substance, the same as the immunity to suit provisions in the Manitoba WCA.

The deceased worker's father and the family members, on whose behalf he claimed, alleged that they were not "dependents" within the meaning of the Ontario WCB Act and that their actions were therefore not barred by the Ontario WCB Act. The Ontario WCB agreed and decided that the right of action was not taken away by the Ontario WCB Act. Butler Trucking applied to the Ontario High Court of Justice for judicial review of this decision and was successful.

The Ontario High Court of Justice said that section 60 of the FLR Act conferred a right of action only on family members "where a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed". Since the worker had no right of action himself, section 60 of the FLR Act gave no rights to members of his family. The court explained as follows, at page 689:

"In our opinion, the right of action of the parents, brother and sisters of the deceased person under s.60 of the Family Law Reform Act is purely a derivative action, depending on the entitlement of the deceased to personally maintain an action for damages in the circumstances of the accident if he had not been killed. In the decision of Fera et al v. Uguccioni (1980), 29 O.R. (2d) 65 … (H.C.J.), Anderson J. held that the right of action of dependents of an injured or deceased person under s.60 of the Family Law Reform Act is 'clearly derivative or vicarious'.

In our opinion, the respondent as plaintiff in the Supreme Court action could not maintain an action on behalf of the members of the family as an independent action for damages under s.60 of the Family Law Reform Act because the deceased worker would not have been entitled to recover damages had he survived, his right of action against the applicants having been taken away by s.8(9) of the Workers' Compensation Act." [emphasis added]

The reasoning of the court in the Re Butler Trucking decision has been consistently followed in Ontario. See, for example, Wright v Bodley Air Services Ltd., [2003] O.J. No. 657 (Ont.S.C.).

The applicant's counsel further argued before us that the Manitoba legislature, in drafting the FAA did not intend to afford rights to non-dependents (as that term is defined in the WCA to which workers themselves would not be entitled. He argued that it was never the intention of the legislature to change the effect of the workers compensation scheme by adding in a provision that non-dependents could make a claim for damages under the FAA and that that was the very reason that FAA claim was made derivative in nature. We find that this argument has merit.

Jurisdiction of this Panel

The WCA provides a very broad, general jurisdiction to the Board to determine all matters and questions arising under Part I. It starts with section 60(1) of the Act which provides:

General jurisdiction

60(1) The board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the board; and the action or decision of the board thereon is final and conclusive and is not open to question or review in any court; and no proceedings by or before the board shall be restrained by injunction, prohibition, or other process or proceeding in any court, or are removable by certiorari or otherwise into any court.

The WCA goes on in section 60.8(1) to afford the Appeal Commission exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under Part I in respect of, among other things, determinations under section 68(4).

With respect to our jurisdiction to make determinations about the relationship between the FAA and the WCA, we note from a review of the Ontario cases where this issue has been considered, that the decisions are inconclusive with respect to whether the jurisdiction of a Worker's Compensation Appeal Tribunal extends to determining whether a claim under the Ontario Family Law Reform Act, is removed by the Ontario Workers' Compensation Act. In Butler, supra, for example, the tribunal made such a finding whereas in Wright, supra, the tribunal declined to make such a finding and instead confined its decision to determining the facts upon which a court was then able to make such a determination.

We see nothing in the legislation in Manitoba, however, which would so restrict our jurisdiction.

The WCA in section 68(4) provides exclusive jurisdiction to this tribunal to determine whether the right of action is removed by the WCA. In the exercise of that jurisdiction, we are entitled to and should examine the nature of the action which is sought to be removed. Having regard to the derivative nature of a claim made pursuant to the terms of the FAA, therefore, we find that the right of action is removed. This finding is in addition to or in the alternative to our finding that the right of action is removed based on a plain reading of section 13(1).

The respondent's counsel argued that we do not have the jurisdiction to determine whether his client's claim is taken away by the WCA because, he says, our jurisdiction only arises in situations where the action is one which is brought by the worker, his legal personal representative, or his dependents. This is, he argues, not only because of the wording of section 13(1) but also of section 68(4). His argument is that because at the time the action was initiated, neither the respondent nor the persons on whose behalf the respondent brought the action fell within the definition of "worker", "legal personal representative" or "dependents", we have no jurisdiction to determine whether the right of action is now removed by the WCA.

We disagree. Section 3(1) of the FAA provides that actions for the benefit of the individuals entitled to bring a claim under that act shall be brought by and in the name of the executor or administrator of the deceased's estate. Section 5(1) of that act, however, provides that where there is no executor or administrator of the estate of the deceased, an action may be brought by and in the name or names of any of the persons for whose benefit the action would have been brought if it had been brought by the executor or administrator.

The term "legal personal representative" is not defined in the WCA. A personal representative is defined in The Trustee Act to mean an executor, an administrator and an administrator with will annexed. We find that this definition applies to the use of the term in the WCA, as well.

It is true that at the time the respondent initiated the action in question, she was not yet named the legal personal representative of the deceased worker. Less than one year after the action was commenced, however, letters of administration were granted to her. She is, therefore, now the legal personal representative of the worker.

We find that the respondent's argument that our jurisdiction is ousted because at the time the action was initiated none of the parties fit within the definition of "worker", "legal personal representative" or "dependent", focuses on a technicality and fails to give effect to the true meaning and intention of the WCA, relating to our jurisdiction.

Even if we were to follow the respondent's argument that section 68(4) should be so narrowly construed as to afford exclusive jurisdiction to the Appeal Commission only where the action in question is one brought by either the worker, the legal personal representative, or a dependent of the worker, the facts of this case being that the action is now brought in the name of the legal personal representative of the worker, our exclusive jurisdiction follows. We find, however, that in any event, our authority is not so restricted. This view finds support in the case law.

In the Pasiechnyk decision, the Supreme Court stated that the history and purpose of workers compensation supports the proposition that the Workers Compensation Board has exclusive jurisdiction to decide the question of whether the statutory bar which removes the right of action, applies. This is because that question is intimately related to one side of the historic trade-off embodied in the system. The court described the bar to actions as being central to the scheme.

It stated that the principle of no-fault recovery assists the goal of speedy compensation in reducing the number of issues that must be adjudicated. If there were no bar to actions, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums towards an insurance system that did not, in fact, provide them with any insurance.

With respect to jurisdiction, the Supreme Court stated at para.28-32

"The cases also support the conclusion that the legislature intended to commit exclusively to the Board the question of whether the statutory bar applied. … The Board occupies the central position in the workers' compensation system. The system has three main aspects: (1) compensation and rehabilitation of injured workers, (2) the bar to actions, and (3) the injury fund."

To rely on the formal technicality of whether the respondent who is the named plaintiff in the subject action was, at the time the action was initiated, in fact the legal personal representative of the deceased worker, ignores the essence of the action itself. We find that no effect should be given to such a technicality either with respect to whether the right of action is removed or with respect to our authority to so determine.

Finally, the respondent's counsel also argued that the WCA and the FAA are mutually exclusive. In support of this position, he pointed to section 6(c) of the FAA which reads:

Considerations in assessing damages

6 In assessing damages in an action brought under this Act there shall not be taken into account,

(c) any benefit or right to benefits, resulting from the death of the deceased, under The Workers Compensation Act, or The Employment and Income Assistance Act, or The Child and Family Services Act or under any other Act that is enacted by any Legislature, Parliament, or other legislative authority and that is of similar import or effect;

and to section 112 of the WCA which states:

Common law rules superseded

112 A worker shall be deemed not to have undertaken the risks due to the negligence of his fellow worker, and contributory negligence on the part of the worker is not a bar to recovery by him, or by any person entitled, to damages under The Fatal Accidents Act or The Trustee Act in an action for the recovery of damages for an injury sustained by or causing the death of the worker while in the service of his employer for which the employer would otherwise have been liable.

His argument was that these sections would not have meaning or purpose if one interprets the two acts so as to determine that the right of action in one, is taken away by the other.

We do not agree with this interpretation. Those sections of each act referred to by respondent's counsel, have meaning and application to situations where accidents give rise to claims by or against parties who are not, for various reasons, covered by the legislative scheme of the WCA. That is not, however, the case which is before us. Based on the Agreed Statement of Facts submitted on behalf of the parties, we have found that all parties do fall within the legislative scheme affording both compensation and immunity from suit.

The Trustee Act Claim

In addition to the claim under the FAA, the respondent's action claims damages pursuant to The Trustee Act, C.C.S.M. c.T160. At the hearing of this matter, the respondent's counsel indicated that that claim was not being pursued. We find, in any event, that like a claim under the FAA, a claim made pursuant to The Trustee Act is a derivative one. As noted by Professor Osborne, of the Faculty of Law at the University of Manitoba in his text: The Law of Torts, Carswell, 2000 at p.117:

"The estate acquires the rights of the deceased and any defences that the defendant may have had against the deceased if he had lived apply to the estate."

We find, therefore, that if such a claim were pursued by the respondent, the right to bring such an action would be removed by the WCA, for much the same reasons as we have applied to remove the FAA action. Since the worker in this case would not be entitled to bring an action against the applicant, neither would his estate be so entitled.

Conclusion

For all of the above reasons, therefore, we find that the right of action is removed by the WCA.

Panel Members

S. Walsh, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Miller

S. Walsh - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 16th day of November, 2004