The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An appeal panel hearing was held on June 12 and June 13, 2006, at the worker's request. The panel discussed this appeal on June 19, 2006.

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

The Pleadings

On April 13, 2005, the plaintiff filed a statement of claim alleging the defendant had committed an assault and battery on October 21, 2003 by hip checking the plaintiff into a wall. The plaintiff suggested that the defendant had been warned on two previous occasions that the plaintiff was vulnerable to injury in the case of sudden physical impact.

The defendant's statement of defense was filed on August 10, 2005. He denied an assault and battery had taken place. The defendant also took issue with the suggestion that he had received prior warning from the plaintiff of a vulnerability to injury. The defendant took the position that the plaintiff's claim was statute barred by The Workers Compensation Act (the Act).

On September 26, 2005, counsel for the plaintiff asked the Appeal Commission to determine whether or not the plaintiff's right of action was removed by the Act.

A pre-hearing conference took place on December 19, 2005.

The Hearing

On June 12 and 13, 2003, the panel heard testimony from the plaintiff and the defendant as well as from two witnesses called on behalf of the defendant. The witnesses called by the defendant included a middle level manager still working for the employer and a former human resources manager for the employer. The former human resources manager now works with the defendant at one of his new companies.

a) The plaintiff and the employer

Between 1989 and 1998, the plaintiff worked with a number of organizations including the armed forces reserve, a bank and an armored car service. In 1994, he suffered a back injury after being struck by a drunk driver.

By the late 1990s or early 2000, the plaintiff had returned to school. He testified that he went back to pursue a more sedentary vocation that would enable him to "play sports and stuff like that" without being worn out from work. The record confirmed the plaintiff's participation in a number of recreational activities including volleyball, weightlifting, mountain biking, inline skating and water skiing.

In 2000, the plaintiff earned his computer programming diploma. He joined the employer where he worked as a computer programmer/web developer and computer assisted design (CAD) coordinator.

The plaintiff described his own work record as exemplary. The former human resources manager did not accept the plaintiff's characterization but he did not identify any concerns with the plaintiff's work performance.

On the day of the alleged assault and battery, the plaintiff was employed in the Information Technology (IT) department of the employer. The IT department was located on the second floor of the workplace. The plaintiff reported to the Chief Information Officer (CIO) for the employer.

In total, approximately 85 salaried employees worked on the second floor offices of the employer. They performed a variety of management and administrative tasks. The first floor (the shop floor) was primarily devoted to manufacturing and hosted a relatively large unionized workforce. The total number of employees was 345.

b) The defendant

On the day of the alleged assault and battery, the defendant worked as a vice president for the employer. He was the son-in-law of the company owner. He worked on a different part of the second floor than the plaintiff and was responsible for about 20 salaried employees and 200 unionized employees.

The defendant comes from a sports background. He holds masters degrees in architecture and business administration. By his own admission, his rise in his father-in-law's firm was rapid. In the early part of this decade, he rose from production manager to operations manager to vice president. The defendant no longer works for the employer. However, he continues to maintain a business relationship with his father-in-law through a number of other ventures.

c) The culture of the workplace

There seems little dispute that once the defendant became a senior manager, he sought to impose a major cultural change on both the shop floor (1st floor) and the salaried employees (2^nd floor). In his words, what was sought was a culture of "high fives" and "high accountability".

Based upon the evidence of the middle manager and the former human resources manager, this shift in culture was intended to break down the barriers between "us" (the salaried employees) and "them" (the shop floor). It was hoped that this change in approach would inject some passion into what was considered to be a stagnant and money losing operation facing intense competitive pressures.

In the opinion of the middle manager and the former human resources manager, employees were invited to be passionate about their work and to share their passion with management. They were put on notice that they would be accountable for their performance. The message was "keep your head up and focus."

The defendant sought to inject the locker room mentality of "work hard/play hard" into the work force. Perhaps the best expression of the defendant's attempt to marry passion and accountability was the day in 2002 when shop floor employees worked overtime to successfully meet a delivery target. This achievement was greeted with a boisterous round of high fives and chest to chest bumping.

d) The "in group"

As the defendant admitted, some employees "bought in" to the changes he sought to initiate and some "did not". In the view of the middle manager and the former human resources manager, the defendant tended to ignore those who did not buy in. If he ignored you, "you were out of the loop."

Those "buying in" were invited to engage in additional locker room displays such as punches to the shoulder, hip checks, and shoulder checks and on one memorable occasion a tear inducing drop kick to the groin of the defendant delivered by a woman trained in the martial arts.

Estimates of the size of the "in group" varied. According to the middle manager, there were 10 to 12 participants. The former human resources manager suggested there were upwards of 20. The defendant thought about 30 people was participants.

Within this environment, among this group, the term "keep your head up" came to represent not only a motto for corporate advancement but a necessary survival skill for a day in the office. The middle manager reported receiving and delivering more than 20 hip checks. For his part, the middle manager who had risen to his position from the shop floor embraced this environment. In his words, "who's not going to take a shot at your boss if you get the opportunity."

The former human resources manager was also an active participant. He applauded the drive to inject more passion into the workplace and to make management more accessible. He noted that the defendant received as much as he got and would comment favorably upon a certain hit he received as a "good one".

e) A culture of "high fives" or "a culture of fear"

Through cross examination, counsel for the plaintiff questioned the characterization of the workplace as a place of "high fives and high accountability." He suggested that the atmosphere of the workplace was more aptly described as a "culture of fear" where the boss' son-in-law enjoyed absolute immunity in acting out his childish and aggressive instincts.

Through cross examination, counsel for the plaintiff raised concerns about a workplace culture in which no warning of physical contact was provided, where no effort was made to ascertain whether an individual was vulnerable to injury and where the simple reality of having your head down was seen as invitation to assault. He questioned the impact upon workplace safety of a culture where "you think . . . being kicked in the testicles is also a good thing."

Counsel for the plaintiff suggested that the defendant's conduct was inconsistent with the rules set out in the salaried employee's handbook which indicated that "fighting horseplay or engaging in any conduct which creates a safety hazard to oneself and/or others is prohibited on company premise[s] and subject to disciplinary action including discharge."

It was noted that the defendant weighed 215 pounds and on one occasion had dented a wall via a missed hip check. Counsel for the plaintiff challenged the former human resources manager on his failure to act rather than "react" to a dangerous workplace environment and suggested that leniency was being displayed to the boss's son-in-law.

In response, the former human resources manager noted that the prohibition in the employee's handbook was on "fighting horseplay" (emphasis added) which he interpreted as a prohibition against physical fights. The defendant took the position that it was not open season on all employees. He suggested that he only engaged in more physical activities with those who he had gotten to know and who had already displayed via their prior actions an interest in participating in more vigorous activities.

The defendant highlighted the fact that it was open to individuals to opt out of the heightened physical activity. He noted that when active members of the "in group" such as the middle manager and the woman trained in martial arts requested that he not engage in that activity on a particular day due to their physical discomfort he had readily acceded to their wishes. When these individuals felt better, they resumed their participation in the "in group."

The defendant also observed that when the CIO had asked him not to engage in these activities with one individual from the IT Department who did not wish to participate, he "never did it again."

f) The culture of the IT Department

Some dispute arose between the witnesses regarding the definition of the IT department and the degree to which the department participated in the more extreme physical elements of the "high five, high accountability" culture.

The plaintiff testified that within the IT department there was the odd high five but minimal physical conduct because it was regarded as unprofessional.

The defendant, the middle manager and the former human resources manager worked on a different part of the second floor than the IT department. They suggested that at least two individuals from IT took part in the more physical interplay of the "in group." They identified the CIO as well as the woman who trained in martial arts.

The plaintiff via his counsel took issue with the inclusion of the CIO and the woman in the IT department. In particular, it was suggested that the woman worked in marketing at the time and that her office space while proximate to the IT area was not actually within the same area.

g) The plaintiff and the "in group"

The plaintiff and the defendant agreed that over the approximately three years of their acquaintance in the workplace, they tended to see each other between six and twelve times a month.

A number of these sightings were simply walking by or seeing each other in the hallway. But from time to time, the plaintiff was called upon to perform specific tasks for the defendant. On one occasion, he installed AutoCAD on the defendant's laptop. On another, he installed the Terry Tait Office Linebacker video for the defendant. He described the video as a "parody of a football player running around the office slamming people and hip checking them and bashing them . . ."

The plaintiff suggested that the defendant found the video funny and played it in the boardroom to his staff. Upon cross examination, the plaintiff confirmed that he had also laughed when he reviewed the tape because it was something that "normally wouldn't happen."

There were mixed views on whether the plaintiff was part of the "in group." The middle manager indicated that he was friendly with the plaintiff but had never hit or checked the plaintiff because the plaintiff had never hit him. He was aware that the plaintiff had previously had a bad back but noted "that doesn't mean you're not healthy now."

The former human resources manager indicated that he had never hit the plaintiff but he was not aware that he had a bad back.

The defendant saw the plaintiff as friendly and described what he considered to be genial interplay with the plaintiff such as shadow boxing. He knew the plaintiff played volleyball. He saw the plaintiff as just another sports minded, "happy go lucky" guy with whom he could banter and physically interact. In hindsight, he was prepared to admit that "perhaps it wasn't reciprocal."

h) The first alleged incident (May 2002)

The plaintiff alleged that in late May 2002, he was hip checked by the defendant. He indicated that as a consequence of that incident, he missed some time at work and was required to seek treatment for his injured back. He suggested that he orally reported his concern to the CIO at the time as well as to human resources. He testified that, upon his return to work, he expressed his concern about his back and the hip check in a brief two minute conversation with the defendant. In his view, things seemed fine after that conversation.

The defendant testified that he had no recollection of this incident taking place or of receiving a warning that the plaintiff had a bad back. The defendant did concede that he worked at a frenetic pace in the workplace and that he often juggled multiple tasks. He indicated that, from time to time, words went in one ear and out the other.

i) The missed hip check (Oct/Nov 2002)

To the best of the plaintiff's recollection, another incident took place in October or November 2002. He stated that the defendant tried to hip check him but missed. The plaintiff suggested that he was concerned for his safety after the near miss. He testified that he reminded the defendant of his bad back and indicated that he was not "part of your reindeer games." The plaintiff indicated that he provided an oral report about this incident to his immediate supervisor in the IT Department.

The defendant recalled the missed hip check but had no memory of any warning regarding the plaintiff's bad back.

j) The concern expressed by another worker (July 2003)

The plaintiff testified he had become aware of another incident with a worker from the IT department who was also hip checked by the defendant. The other worker expressed his concerns regarding the incident to the CIO and received an apology from the defendant. Although he was not positive about the actual date, the plaintiff thought this might have taken place in July 2003. The plaintiff testified that he expected a cessation of all hip checks as a result of this incident.

The defendant acknowledged in direct evidence that the CIO had approached him about the concern of the other worker and that he had apologized to that worker.

k) Contact between the plaintiff and the defendant

From the plaintiff's point of view, by July 2003, there was a negative perception about the defendant in the IT department stating "nobody was happy about it, everybody was mad…".

When asked by his legal counsel whether he had "occasion to see or visit" the defendant in the time period after hearing about the incident with the other employee (i.e. July 2003) and before the "incident of October of 2003", the plaintiff indicated that "I don't recall." He went on to describe the defendant as "just a bully. He's a big bully."

During cross examination, the plaintiff recalled that he had some conversations between the summer of 2003 and October 2003 with the defendant about recreational boats and about the defendant's plans to leave the employer and to open a boat business. Under cross examination, the defendant acknowledged saying "if you do buy the boat business, don't forget about me." He conceded during cross examination that between the summer of 2003 and October 21, 2003, he stopped by the defendant's office on several occasions to say "How you doing? How's it going with your boat business?"

The defendant agreed that he and the plaintiff had several discussions during this period of time regarding the prospects for the defendant's boat business. He agreed that the plaintiff had asked not to be forgotten in the event the defendant purchased a boat business. The defendant took this as an expression of interest by the plaintiff in future employment opportunities with the boat business. From the defendant's perspective, these discussions were friendly.

The former human resources manager acknowledged that he was aware of the incident with the other IT employee. However, he was not aware of any incident between the plaintiff and the defendant before October 21, 2003. He indicated that he had not seen or heard of any report or any concern from the plaintiff's immediate supervisor or from the CIO working for the employer during the plaintiff's tenure about any incident between the defendant and the plaintiff.

l) The incident of October 21, 2003

The plaintiff and the defendant agree that the defendant hip checked the plaintiff into a wall on October 21, 2003. They agree that this incident took place on the second floor of their place of employment during working hours. Both agree that after delivering the hip check, the defendant said "Oh, that was a good one." There is also some consensus that the hip check took place relatively close to the workstation of another worker.

The plaintiff suggests that the defendant came from behind in order to hip check him while the defendant suggests they were travelling in opposite directions when the hit took place. The plaintiff claims that the defendant followed him to the other worker's workstation after the hit and made a further statement to the plaintiff. The defendant claims that he continued on in the direction he was initially travelling.

Through cross examination and argument it was suggested that the defendant may have tried to hurt the plaintiff as revenge for the missed hit eleven or twelve months previously. The defendant denied this assertion.

The plaintiff testified that he suffered a serious injury as a result of the incident. In his view, "it wiped my career right off the map" and "not a day goes by that I don't think of it."

m) After the October 21, 2003 incident

The defendant testified that he did not realize the plaintiff had been hurt by the October 21, 2003 hip check until he was advised of this fact by an individual with human resources. He said that he phoned the plaintiff to apologize. He testified that the plaintiff said to him "I told you I had a bad back" to which the defendant replied "No you didn't . . ." From the defendant's perspective, this was a fairly friendly conversation.

The plaintiff does not recall this conversation.

The plaintiff made a written incident report to human resources on or about November 4, 2003. He suggested this was the third attempt by the defendant to hip check him and the second successful one. He noted that he had been injured after the first hit. Both the plaintiff and the defendant recall a heated telephone conversation between them following the employer's receipt of the incident report although they disagree to a certain degree on what was said during that conversation.

No written incident report appears to have been filed by the defendant nor does any report appear to have been made to Workers Compensation by the employer.

A meeting between the plaintiff and Human Resources took place on or about November 6, 2003. There is some disagreement between the plaintiff and the former human resources manager regarding the nature of the discussions at this meeting. The plaintiff and the former human resources manager do agree that the plaintiff was placed on salary continuation for 104 days after the incident.

The plaintiff has not returned to full time work since the incident. He suggests that he has suffered and continues to suffer from severe and disabling physical, psychological and emotional injuries as a consequence of the incident.

Reasons

Introduction

By virtue of subsection 68(4) of the Act, the panel has jurisdiction to "adjudicate and determine whether the right of action is removed by this Act." In undertaking this task, the panel has carefully considered both the oral evidence of the four witnesses and the written documents put into evidence. The panel has benefited from the able written and oral arguments of counsel and the cases they provided. The panel has also considered the Act as a whole with particular reference to the preamble as well as to sections 1, 4, 9 and 13.

Before elaborating upon the panel's reasons for decisions, it may be helpful to highlight the respective arguments put forward by counsel for the plaintiff and for the defendant.

Position of Counsel for the Plaintiff

a) The big picture

Counsel for the plaintiff urged the panel to see the incident of October 21, 2003 as the culmination of a series of escalating, unwelcome, non consensual and aggressive acts by the defendant directed towards the employee. He noted the plaintiff's evidence that he had warned the defendant on at least two prior occasions of his vulnerability and of his desire not to be hit.

When the plaintiff's warnings were coupled with the concern expressed in the summer of 2003 by the other IT employee, counsel for the plaintiff argued that the action of the plaintiff must be seen as a malign act divorced from any connection with the work place.

In his view, the defendant's action of October 21, 2003 was either "pay back" time for the missed hit of October/November 2002 or the act of an executive bully characterized by wanton indifference to the prior warnings and vulnerability of the plaintiff and others in the workplace.

Counsel for the plaintiff reminded the panel that this was an office not a playground, sports arena or locker room. In his view, no business purpose could be served by the initial application of force of this magnitude by a 215 pound man to one of his subordinates.

The panel was urged to remember that a central purpose of the legislation was the prevention of workplace injuries. From the perspective of workplace safety, counsel urged that a free pass from civil liability should not be offered to management bullies or to those blindly indulging in inherently dangerous acts.

In the view of counsel for the plaintiff, the defendant should be held to account for his role in creating a workplace that was out of control from the perspective of workplace safety - a workplace in which an injury of the type suffered by the plaintiff seemed almost inevitable.

b) Analytic approach

In suggesting to the panel that the conduct of the defendant had taken him outside of the course of his employment and far beyond conduct usual to and incidental to the industry, counsel for the plaintiff asked the panel to consider both the nature of the act and the context of where and how it took place. He suggested the appropriate question for the panel to ask was whether the action "by its very nature, breaks the employment connection." (Appeal Commission decision, 14/2001, p. 6/6.)

He noted that hip checks are not common within the workplace and that when they are non consensual, they constitute a physical assault. He pointed to decision 96/2001 of this Appeal Commission which suggested systematic and unwelcome verbal and physical assaults over an extended period of time would constitute "malign acts with predictable results" sufficient to remove the cloak of civil liability immunity (pp. 12/14). He suggested that the pattern of warnings and the alleged escalating intensity of the hip check assaults culminated in the malign act of October 21, 2003 with predictable results.

Counsel for the plaintiff argued that the defendant could not rely upon the "environment of the workplace" argument enunciated by the Ontario Worker's Compensation Appeals Tribunal in decision 586/91 (the Schneider case) He suggested the legal principle of that decision was that conduct beyond the normal workplace might still enjoy the statutory protection from civil liability if it reflected the dominant and pervasive culture within a particular department.

The plaintiff's counsel stressed that the conduct of the "in group" was at most the conduct of between 10 and 30 people within a salaried staff of 85 and a total staff of 345. In his view, it was far from dominant or pervasive. More importantly, he argued that the specific department in which the plaintiff worked was a "no touch" department where high fives were rare and hip checks verboten. In his view, the "in group's locker room environment was not the culture of the IT department."

c) Statutory principles

Counsel for the plaintiff urged the panel to remember that the legislation speaks to the historic principle of prevention of workplace injuries and diseases as well as to the principle of immunity of employers and workers from civil suits. He suggested that the panel "shouldn't take away the common law right [to sue] easily. He asked why the worker should "be deprived of his right to seek compensation" and urged upon the panel the "spirit of allowing the right of election." In his view, the onus lay properly upon the person trying to avoid a determination that he was civilly liable.

Counsel offered his interpretation of the definition of accident as well as his insight into sections 4(1), 4(3), 4(5), 9(1), 9(7), 9(8) of the Act. He suggested that subsection 9(7) was designed to protect third parties rather than co-workers.

Position of Counsel for the defendant

a) Statutory and tribunal principles

Counsel for the defendant focused upon the preamble to the Act and on the legislative intent of preserving the historic principle of immunity of employers and workers from civil suits.

He noted this immunity, with certain limited exceptions, was extended to workers not just to employers and underlined the economic hardship that might result to those denied this immunity. From his perspective, the onus in this suit lay upon the plaintiff seeking to demonstrate why the defendant ought to be denied statutory immunity from civil liability.

It was noted that, by virtue of subsection 4(3) of the Act, even those employees who injure themselves through serious and willful misconduct are still acting within the course of employment and are still eligible for coverage (subject to a nominal penalty).

Although he hastened to add that the defendant's case came within the definition of the "course of employment" as well as within the definition of "conduct of the operations usual in, or incidental to, the industry carried on by the employer", counsel did note that the language employed by subsection 9(1) and subsection 9(7) was different. He suggested that the test employed under subsection 9(7) was a more general test which focused less on the question of the individual activities of the employee and more on the question of whether it happened in the conduct of the operations of the industry.

Counsel for the defendant disagreed with the plaintiff's suggestion that subsection 9(7) of the Act applied only to the employees of third parties. He suggested that such an interpretation would lead to the absurd result that statutory immunity (with certain limited exceptions) was offered to all employees but the plaintiff's own co-workers.

Based upon his review of the legislation, counsel for the defendant argued that the sole exception to the near presumption that coverage and immunity should apply was to situations "where the conduct is so extreme that it has severed all relationships with the employment environment."

Counsel for the defendant drew support for his views from his review of the cases advanced by the plaintiff and the defendant. He suggested that to find that the employment nexus is ruptured; there must be more than carelessness, fault, or even some degree of negligence. He pointed to Ontario Workers' Compensation Appeals Tribunal decision 256/90 as support for the proposition that the scheme was designed to provide immunity even for serious and wilful misconduct.

In counsel's view, only a "malicious intent to injure" would be sufficient to sever all relationships with the employment environment.

b) Application to the facts

Counsel for the defendant argued that there was no malicious intent behind the defendant's actions. He suggested that the incorporation of the locker room mentality to the workplace was intended for a valid team building purpose. He noted that the defendant only got physical with those who he liked.

He suggested via cross examination that if the defendant had a malign intent, he would have been unlikely to have carried out any nefarious assault in close proximity to another employee.

Counsel for the defendant noted the evidence before the panel was that the defendant had backed off when asked to do so by other co-workers. In his submission, this fact supported the viewpoint that the defendant had not received or did not remember prior warnings from the plaintiff. He also challenged the credibility of the plaintiff on whether prior warnings had occurred.

Counsel noted a number of positive interactions between the plaintiff and the defendant including shadow boxing and the dreams they shared about the boat business. He suggested that this relationship was inconsistent with the imputation any malign intent.

The Panel's Findings

a) The issue

It is agreed by the parties that at the time of the October 21, 2003 incident both the plaintiff and the defendant were co-workers for the same employer. It is agreed that to the extent there was any injury to the plaintiff, any such injury arose out of and in the course of the worker's employment.

At issue is whether the right of action is removed pursuant to the provisions of the Act. Put another way, did the defendant's actions occur within the conduct of the operations usual in, or incidental to, the industry carried on by the employer? If it did, there is no right of action against the defendant. If it did not, that is, if the defendant's actions took him out of his employment, then there is a right of action against the defendant.

b) Overview

In the panel's view, based upon a balance of probabilities, the incident of October 21, 2003 was not reflective of an office bully run amuck nor of a malign vendetta aimed at redressing the missed hip check of October or November 2002. Nor, in the panel's opinion, was the incident of October 21, 2003, suggestive of grossly wanton indifference to the prior warnings and vulnerability of the plaintiff.

Rather, the incident of October 21, 2003 was a careless, arguably imprudent, action with sad but unintended results.

While the panel does not condone the actions of the defendant, the panel's role under this legislative scheme is not to sit in judgment upon the appropriateness of a particular management style. Instead, the panel's job is to consider whether the accident happened within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

In this regard, the panel finds based upon its consideration of the legislative intent, the workplace environment, the nature of the incident and the relationship between the defendant and the plaintiff that the accident happened within the conduct of the operations usual in, or incidental to, the industry carried on by the employer. Accordingly, the right of action is removed pursuant to the provisions of the Act.

c) The statutory framework

The preamble to the Act underlines a commitment to maintain the historic principles of workers compensation including:

b) compensation for injured workers and their dependants, regardless of fault;

d) immunity of employers and workers from civil suits;

e) prevention of workplace injuries and diseases.

Subsection 4(1) makes compensation payable to a worker for injuries arising out of and in the course of the employment. By virtue of subsection 4(3), this is the case even where the injury is attributable to the serious and wilful misconduct of the worker (subject to some penalties).

Section 9 provides that where a worker is injured "in the course of his employment"; he preserves some rights to pursue an action against persons other than his employer. However, the section goes on to provide that the worker has no right of action against a worker of an employer in an industry "where the accident happens within the conduct of the operation usual in, or incidental to, the industry carried on by the employer.

More specifically:

Subsection 9(1) of the Act provides that

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. (emphasis added)

Subsection 9(7) states that:

in any case within subsection (1), the worker, his or her legal personal representative and dependants, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, against a worker of such an employer or against a director of a corporation that is 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. (emphasis added)

In the panel's view, when the legislation is read as a whole, there is a clear statutory intent to prohibit the right of action of a worker injured in the course of his employment against his co-workers where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

The panel does not accept the argument raised by the plaintiff that the immunity for actions conferred by subsection 9(7) is restricted to the workers of third parties. In its view, the reading urged upon the panel is inconsistent with a plain and ordinary reading of the provision which suggests that it applies to all workers.

Moreover, the panel would note that the logic of the argument advanced by plaintiff's counsel is that legislative immunity from civil suit was provided to all employers by virtue of section 13 of the Act and to all third party workers and directors via subsection 9(7) (subject to the exception noted in subsection 9(7)). This would leave a legislative gap with co-workers being denied statutory immunity from a civil action undertaken by another co-worker. In the panel's view, such a result would be inconsistent with the legislative intent of maintaining immunity of employers and workers from civil suits. This board and inclusive interpretation of the Act and its intended coverage has been expressly spoken to by the Supreme Court of Canada in WCB of Saskatchewan vs. Pasiechnyk (1997). For these reasons, the panel does not accept the argument put forward by plaintiff's counsel.

d) The workplace environment

Without offering an opinion on its particular merits, the panel accepts the evidence of the defendant, the middle manager and the former human resources manager, that the defendant undertook a conscious effort to re-invigorate the corporate culture both at the shop floor and among the salaried employees.

In the panel's views, the defendant attempted to instill both greater passion and greater accountability in the workplace via the example of the locker room. He did so in a manner that reflected both his gregarious personality and his general familiarity with the world of sports.

While the extreme example of the "in group" was relatively small, the more boisterous culture sought by the defendant can be identified in many facets of the workplace ranging from shadow boxing to high fives to a celebratory chest or belly bump amongst shop floor employees after achieving a long sought after target.

Part of this effort at reviving corporate culture was directed at sending a message that the management team would be more accessible. The panel accepts the evidence of the middle manager and the former human resources manager that this was a workplace where you could take your best shot at the defendant just as he could take his best shot at you.

For these reason, the panel does not accept the effort by plaintiff's counsel to characterize the defendant as an out of control bully. Without condoning the more physical expression of the defendant's efforts, the panel would note that even as late as the summer and fall of 2003, the plaintiff felt comfortable enough with the defendant to visit his office and to share his dreams of leaving the dreary world of the employer for the brighter waters of a recreational boat business. Their relationship at this late date is not suggestive of the dynamic between a bully and a victim.

The panel would also note that this is not a case like the Schneider matter where the issue in question was the pattern of behaviour within a particular discrete department. This is an incident involving individuals from two different areas of the workplace. Moreover, given the personality of the defendant and his effort to increase accessibility to management, this also appears to be a workplace where hierarchical and departmental lines became somewhat blurred.

The plaintiff might only give an occasional high five within his department but he did shadow box with the defendant. The parties could not agree who worked within the IT Department but there was no disputing the fact that the CIO was an active participant in the "in group." The question of who was in or out of the "in group" was not defined by which particular department one belonged to.

The panel is sympathetic to the thrust of the argument by plaintiff's counsel that there were potential dangers in a workplace where walls could be dented and kicks to the groin administered seemingly in accordance with the defendant's locker room vision.

However, the panel would also note the defendant's testimony as corroborated by the middle manager suggests that there were some internal limits which were generally adhered to. Individuals were not invited to participate in the more extreme elements of the "in group" until the defendant had become familiar with them and they had demonstrated some propensity to participate. In cases like those of the other worker in IT who expressed the wish to be excluded from the list of potential hip check targets, the defendant "never did it again." Members of the "in group" like the middle manager or the martial arts expert who were suffering a particular infirmity on a particular day could and did excuse themselves until they were well again.

The panel places very little weight to the provision in the salaried employees' handbook regarding "fighting horseplay" and unsafe actions. The intent of the provision is ambiguous and the document does not appear to have been universally relied upon in the workplace.

In the panel's view, the workplace environment was certainly a more boisterous culture then one might normally expect in an office or mixed shop floor /office environment. However, this was not a workplace out of control or one that was effectively transformed from a place of business into a playing field.

Considering the evidence as a whole and based upon a balance of probabilities, the panel finds that the defendant's actions from the less extreme high fives to the more extreme chest bumping and hip checks were directed at instilling a sense of camaraderie and a sense of purpose to his workplace.

The panel rejects the suggestion that the hip check of the defendant by its very nature broke the employment connection. A hip check is not akin to a stabbing or to a sexual assault where the act itself is so egregious as to suggest a malign purpose. In this workplace, the motive underlying the act of hip checking was open to interpretation.

The panel offers no judgment on the merits of introducing this environment to the employer's workplace.

e) The incident itself

Based upon a balance of probabilities and its weighting both of the credibility of the testimony and of the relative ability of the plaintiff and defendant to remember the events of October and November 2003, the panel finds that when the hip check of October 21, 2003 took place, the plaintiff and the defendant were traveling in opposite directions. It also finds that the defendant continued in the same direction he was originally traveling after exclaiming "oh good hit." The panel accepts the evidence of the defendant and the former human resources manager that the defendant would often exclaim "good hit" whether administering or receiving physical contact.

The panel is prepared to accept, for the sake of argument that there were two prior incidents involving the defendant and the plaintiff one taking place in May 2002 and the other occurring, on or about, October 2002 or some twelve months before the last incident. The panel is also prepared to accept for the sake of argument that the plaintiff and the defendant had a brief conversation regarding the plaintiff's back some days after the May 2002 incident as well as a very short interchange regarding the plaintiff's back after the October, 2002 incident.

However, even accepting for the sake of argument these two propositions, the panel rejects the suggestion that the incident of October 21, 2003 was the culmination of a systematic series of physical assaults over an extended period of time.

The panel notes that the three incidents occurred over the course of almost a year and a half and that the final incident was somewhere between 11 and 12 months after the second incident. The events are too divorced in time to suggest a systemic pattern of harassment aimed at the plaintiff.

The panel also observes that any discussions regarding the plaintiff's bad back were of a very short duration. It notes that a discussion about a bad back on a particular day might be subject to misinterpretation. For example, what the plaintiff might have construed as a general statement that he had a bad back and never wanted to participate might be misconstrued to mean "not today, I have a sore back."

More importantly, the panel finds that the defendant was a very active and busy supervisor with well over 200 staff and an admitted propensity to have words go in one ear and out the other without always retaining them. The panel accepts the evidence of the middle manager and the former human resources manager that the defendant tended to ignore those he did not like and become more physical with those he did like. The panel also notes that when asked by the CIO to stop interacting in a physical fashion with another IT employee the defendant desisted. It observes that if the defendant had a malign purpose underlying his actions, he would not have been likely to assault the plaintiff in close proximity to another co-worker.

f) The relationship between the plaintiff and the defendant

Finally, the panel accepts the evidence of the defendant that there was no malice in the events of October 21, 2003. They note the relative warmth of the relationship between the plaintiff and the defendant in their shared dreams for the boat business. They accept the defendant's submission that he simply saw another happy-go-lucky guy and reacted to him in the same way that he would react to others in the "in group."

Based upon a balance of probabilities, the panel finds that the defendant considered himself to have a friendly relationship with the plaintiff. They do not accept the proposition that there was a pattern of conscious, systemic assaults upon the plaintiff.

Conclusion

In the panel's view, considering the evidence as a whole on a balance of probabilities, this was not a malign act with predictable results. The defendant believed he was engaging in a reciprocal, friendly event with just another happy go lucky guy. The physical interplay itself can be seen as part of the defendant's general approach to addressing the workplace culture.

Based upon its review of the statute, the cases and the evidence as a whole, the panel finds, upon a balance of probabilities, that the workplace accident suffered by the plaintiff was as a result of the defendant's conduct that fell within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

As such, the right of action by the plaintiff worker against the defendant co-worker is removed pursuant to the provisions of the Act.

Panel Members

B. Williams, Presiding Officer
A. Finkel, Commissioner
M. Day, Commissioner

Recording Secretary, B. Kosc

B. Williams - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 10th day of August, 2006