The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an application under subsection 68(4) of The Workers Compensation Act ("the Act") to determine whether a worker has the right of action against his employer and two of his co-workers. The applicants are seeking an order that the right of action against them is removed by the Act.

Issue

Whether or not the right of action filed by a worker against his employer and two co-workers of the employer is barred pursuant to the provisions of the Act.

Decision

The worker is barred from action against his employer and two co-workers pursuant to the provisions of the Act.

Background

The worker is employed with a municipal police force (the "employer") within the province of Manitoba.

On October 9, 2006, the worker took part in the arrest of an individual while he was on duty as a police officer.

The individual (the "complainant") subsequently filed a complaint with the worker's employer alleging that the worker used excessive force and broke her arm when the worker was in the process of handcuffing her.

Two other police officers of the municipal police force (the "co-workers") who had been assigned to the employer's internal investigative unit were then assigned to investigate the complaint against the worker.

The investigation lead to the worker eventually being charged with the Criminal Code offence of assault cause bodily harm.

As a result of the charges being filed against the worker, he was removed from active duty as a police officer and re-assigned to administrative duties.

During the course of a disciplinary hearing, it was determined that the worker did not assault the complainant. The worker was reinstated to full duties as a police officer and the criminal charge was eventually stayed against him.

The worker commenced legal action by way of Statement of Claim in the Court of Queen's Bench of Manitoba against a number of parties, including his employer and the co-workers who had conducted part of the internal investigation, alleging that the investigation into the complaint against him was conducted in a negligent manner.

The worker further alleged in his Statement of Claim that, as a result of the alleged negligent investigation by the co-workers, he suffered injuries and loss, including numerous psychological ailments such as depression, sleep disorders, loss of control of alcohol intake, panic disorders, Acute Stress Disorder and Post-Traumatic Stress Disorder.

The worker has not applied for workers compensation benefits for his injury.

The employer and the co-workers have denied the allegations and filed a Statement of Defense disputing the worker's allegations.

During the course of the action against the employer and co-workers, a motion for a summary judgement to dismiss the action was filed by the employer on its own behalf and on behalf of the co-workers. The basis for the motion was that the worker was entitled to file a claim for compensation under the Act and, as a result, the worker is barred from action in the Manitoba Court of Queen's Bench. The presiding judge advised the parties that the proper forum for determination of the status of a statutory bar was the Appeal Commission.

The employer applied to the Appeal Commission on December 16, 2016 for a ruling under subsection 68(4) as to whether the rights of action as set out in the Statement of Claim are removed by the Act.

As a result, this panel was convened to hear this matter.

A pre-hearing meeting was scheduled with the parties and the Appeal Commission and took place on June 22, 2017 to discuss the issues to be considered, the nature of the material to be filed and how the hearing would proceed, as well as the schedule for the submission of hearing briefs and responses.

A hearing was held on November 16, 2017 to consider the employer's application on behalf of the employer and the co-workers.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by the Act, regulations made under the Act and by the policies of the WCB's Board of Directors.

The relevant sections of the Act are as follows:

The preamble of the Act states: WHEREAS Manitobans recognize that the workers compensation system benefits workers and employers in Manitoba; AND WHEREAS Manitobans recognize that the historic principles of workers compensation should be maintained, namely (a) collective liability of employers for workplace injuries and diseases; (b) compensation for injured workers and their dependants, regardless of fault; (c) income replacement benefits based upon loss of earning capacity; (d) immunity of employers and workers from civil suits; (e) prevention of workplace injuries and diseases; (f) timely and safe return to health and work; and (g) independent administration by an arm's-length agency of government; Application of Part I 2 This Part applies to (a) all employers and all workers in all industries in Manitoba except those excluded by regulation under section 2.1 (exclusion); (b) employers, workers, directors of corporations that are employers or independent contractors that are admitted as being within the scope of this Part under section 74 (optional coverage) or section 75 (optional coverage for independent contractor); (c) non-profit or charitable organizations admitted as being within the scope of this Part and their deemed workers under section 75.1 (volunteer coverage); (d) persons declared to be workers under section 77 (declared workers); and (e) deemed employers and their declared workers under section 77.1 (work experience program).

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 dependents to an action against some person other than his employer, the worker or his dependents, 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, 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. 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 dependents, are or may be entitled against the employer or a director of the corporation that is 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 or a director of the corporation that is 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, a director of a corporation that is an employer or a worker of an employer, 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.

Agreed Statements of Facts and Hearing Briefs

Prior to the hearing taking place, both parties provided the panel with briefs outlining their respective positions as well as providing the panel with a jointly agreed statement of facts for the purposes of the hearing only. For the purposes of the decision, the agreed statement of facts can be paraphrased as follows:

• The applicant, the employer, is a covered "employer" as that term is defined under the Act. • The worker is a covered "worker" as that term is defined under the Act. • On October 9, 2006 the worker, while on duty, took part in the arrest of the complainant. Subsequent to her arrest, she made an accusation to the employer that the worker broke her right arm during the arrest. • The co-workers were assigned to investigate the complaint. • The investigation was undertaken by the employer, and as a result of this investigation the worker was charged with the Criminal Code offence of assault cause bodily harm. This charge was later stayed. • The worker alleges that the investigation conducted by the employer was conducted negligently and legal action was commenced in the Court of Queen's Bench of Manitoba. A copy of the Statement of Claim was provided to the panel. • The employer and the co-workers have denied the allegations. A copy of the Statement of Defense was provided to the panel. • The investigation by the co-workers into the complaint commenced on or about November 6, 2006 and was completed in or about October 2007. A Supplementary Report prepared by one of the co-workers, which was approved October 20, 2007, was provided to the panel. • In July of 2008 further investigative steps occurred by the employer with two additional reports provided: the employer's Supplementary Report of a third investigating officer dated July 14, 2008, and the employer's Supplementary Report of a fourth investigating officer dated November 5, 2008. • The worker alleges that, as a consequence of the alleged negligent investigation, he has suffered injuries and loss, including numerous psychological ailments such as depression, sleep disorders, loss of control of alcohol intake, panic disorders, Acute Stress Disorder and Post Traumatic Stress Disorder. • The applicants deny that any injuries sustained by the worker were caused by any acts or omissions of the employer or its representatives. • Although causation is a contested issue, the medical report of the treating practitioner dated September 1, 2013 indicates that the treating practitioner provided treatment for the psychological ailments to the worker over 36 sessions between May 28, 2009 and December 10, 2010. A copy of a doctor report dated September 1, 2013 was provided to the panel.

The panel finds that the agreed statement of facts is consistent with the evidence on file and provided at the hearing, and will be relied upon in our reasons.

In response to questions from the panel at the commencement of the hearing, both parties further agreed that for the purposes of the hearing, the two co-workers who investigated the complaint against the worker were also workers covered under the Act and that they were acting in that capacity when investigating the worker.

The parties also agreed at the commencement of the hearing that investigations of allegations regarding performance of duties by police officers are operations usual in or incidental to the industry carried on by the employer.

Further, it was agreed by the worker that the worker's action was filed against the co-workers in response to the direct actions of the investigating co-workers. The Statement of Claim against the employer was filed on the basis that the employer was vicariously liable as a result of its employees' actions.

Appellant's Position

The employer was represented by counsel.

The employer's counsel reviewed their brief and answered questions from the panel.

In summary, the employer's position was that the events that gave rise to the worker's injury arose out of and in the course of the worker's employment, and therefore, his right to compensation for those injuries is governed by the Act and, as a result of the provisions in the Act, the worker has no right of action to seek recovery for those injuries in the Court of Queen's Bench against either the employer or the co-workers.

The employer's counsel referred to the agreed statement of facts and highlighted that the parties had agreed that the employer is an "employer" as that term is defined under the Act, and that the worker is a "worker" as that term is defined under the Act.

The employer's counsel stated the following to the panel:

The [employer] would submit to you that the question for the panel, when making a determination to answer the issue before you that's set out in the letter of the Appeal Commission, is whether his injuries, his alleged psychological injuries, fall within the definition of accident in The Workers Compensation Act.

…

And the critical question, which you've identified, is whether his injuries arise out of and in the course of his employment, and the [employer] submits that they do.

And if they do then what's discussed in Pasiechnyk v. Saskatchewan (Workers' Compensation Board) [1997] SCJ No. 74 (noted hereinafter as "Pasiechnyk") of the historical trade-off applies. And that historical trade-off is that his claim for compensation is determined under the statutory scheme of the Act.

And he has no right of action outside of the Act against the [employer], his employer. And that's why as discussed in Pasiechnyk, exclusive jurisdiction to make that determination is put in the hands of the board, put in your hands under the Act.

The employer's counsel further stated:

And the [employer] submits that the injuries that he claims in the statement of claim, the psychological injuries, are a direct result of what occurred on October 9th during the arrest of [the complainant].

And I say that for this reason, if her arm had not been broken there would have been no complaint to [the internal investigative unit], and there would have been no investigation, and there would have been no criminal charges.

The employer's counsel further stated:

The very activity with which he was involved with, the arrest of an individual is part and parcel of the duty of a police officer.

And so I submit that his injuries are linked to and do originate from either in whole or in part from the events of October 9th. Everything flows from October 9th.

And I say that that is consistent with the board policy 44.05.20 in the first paragraph where it talks about, arising out of and in the course of, very last sentence, put simply, arising out of employment generally refers to what caused the injury.

What caused his injury here all flows back to October 9th, the arrest of [the complainant] and everything that happened from that, in the course of employment, in the doing of.

In the doing of his employment, that's what he was doing on October 9th. He was carrying out his responsibilities as a police officer who was on duty.

The employer's counsel also made comment regarding subsection 9(7) of the Act and argued that this section protected the two co-workers named in the Statement of Claim as that section restricts workers against a right of action in respect of an accident "…against an employer, against a worker of such an employer."

The employer's counsel stated that there was no question that the two co-workers were workers and were employees of the employer and they were therefore protected by subsection 9(7) of the Act.

The employer's counsel concluded his submission by stating:

So, in summary then to conclude, I’ll merely taking back to paragraphs 21 and 22 of the [employer's] brief, it's the [employer's] submissions that [the worker's] psychological injuries are captured by the definition of accident.

They arise out of in the course of his employment as a police officer, an employee of [the employer], and accordingly under the Act there’s no right of action in Queen's Bench for compensation for those injuries.

His claim for compensation is governed by the statutory scheme of The Workers Compensation Act. And so, dealing with the question that you've been asked to answer, which is at tab A of the brief, the [employer] submits that the answer to be given should be that [the worker's] right of action against the [the employer and two co-workers] is removed pursuant to the provisions of The Workers Compensation Act.

Respondent's Position

The worker was represented by counsel.

The worker's counsel reviewed their brief and answered questions from the panel.

The worker is alleging that he was injured as a result of the negligent criminal investigation that resulted in the subsequent charges that were filed against him as a result of the complaint filed by the individual he arrested on October 9, 2006.

In summary, the worker's position is that he was investigated and charged as a private citizen that was alleged to have committed a criminal offence. Being investigated for a crime and charged for that same crime was not part of his employment as a police officer which normally would involve him preserving the peace, preventing crime and offences and apprehending criminals and offenders. The worker's position is that since the criminal investigation and resulting charges were filed against him as an individual citizen, any resulting injury would fall outside the employer/employee relationship and therefore the conduct of the employer and the two co-workers in relation the investigation of the worker are not protected from action under the Act.

The worker's counsel argued that subsection 9(1) of the Act does allow actions against third parties, other than a worker's employer. As a result, subsection 9(7), which interprets subsection 9(1), would not protect the two co-workers as they were workers employed by the employer, not a worker of a third party employer and therefore the two co-workers have no protection under subsection 9(7).

The worker's counsel also argued that the allegation contained in the Statement of Claim that gave rise to the action was that the worker was involved in an arrest of an individual and then thereafter was involved in a negligent investigation and subsequently charged. However, it was not the arrest itself that caused the worker's injuries. Rather, it was the negligent investigation and being charged that caused the worker's injury.

The worker's counsel stated:

And it is correct that [the worker] while on duty was involved in the arrest of an individual, and as a result of that arrest was investigated by [the employer].

And that is a big jump that we're going to talk about in some detail. That is, my friend urges you to say everything flows from the arrest, everything flows from the fact that [the worker] was involved in that arrest.

That overlooks that the issue of, what is the accident and what are the allegations? The allegations, if you looked at the statement of claim, right off the bat, the allegations aren't, that [the worker] was involved in an arrest and therefore suffered damage. No, it's that [the worker] was involved in an arrest and then thereafter was subject to a negligent investigation that caused him to be arrested and charged that caused damage.

So, the accident in this case, and I say from the outset, that accident, the conduct of the investigation is broad enough to be covered by the word, accident.

The accident isn't the arrest, the accident is the negligent investigation.

The worker's counsel explained the worker's general duties as a police officer as being:

…every peace officer who is a member of the police service must perform all duties assigned to the officer in relation to the preservation of peace, the prevention of crime and offences against laws enforced in Manitoba and the apprehension of criminals and offenders.

The worker's counsel further stated:

So, [the worker's] duties, what he used to do, what he does in the course of his employment, is he takes orders that are directed towards the preservation of peace, apprehension of criminals, prevention of crime.

That is a very important piece of information to take into account. So, he's the one that apprehends criminals. He's the one that takes orders to enforce the law.

He's not the one that’s subject to, his duties do not indicate that he's subject to being apprehended or subject to being charged as an offender. Everybody in this country, with the exception of those that have diplomatic immunity, are subject to the law. And are subject to being apprehended by the police if they have broken the law, just like [the worker] is.

Every person, every police officer can be charged. The fact that he's charged and he's also a police officer doesn't make this injury something that arises in the course of his employment. So, when you're looking at what is in the course of his duties and what arises out of his employment, that's a very good starting point.

The worker's counsel also referred the panel to the employer's statutory Charter that establishes a committee that is required to investigate conduct of a member of a police service, and to a police service regulation by-law ("By-law") which he stated was not only a code of conduct but also sets out the disciplinary process if a worker engages in misconduct.

It was pointed out to the panel that one of the forms of misconduct in this workplace, identified within the employer's regulation by-laws, was "abuse of authority" and defines a type of abuse of authority as being "…if a member…applies any unnecessary or excessive force to any prisoner or any other person…" The worker's counsel stated that such action can lead to discipline up to an including termination by the employer.

The worker's counsel stated the following:

So, a police officer for the [employer] has to uphold the law, has to preserve the peace, apprehend criminals.

But if that police officer does it improperly and misconducts himself or herself and uses excess force in the course of an arrest, that police officer can be disciplined by the [employer]. That is not what happened here. What happened here was a criminal investigation, that every single citizen as I said a moment ago, can be subject to. Whether you're a police officer or whether you're a teacher.

And what the [employer] could have done is they could have said, you used excess force in the course of this investigation, of this arrest, that's a service default.

We're going to have a disciplinary hearing to determine whether or not you're guilty of a service default, and if so, what the consequences of that should be.

And if they did that, and if [the worker] then suffered injury as a result of that, it would be in my respectful view, clearly be something that falls under The Workers Compensation Act, because it is in the course of his duties to obey orders.

It is in the course of his duties to conduct himself properly. It is in the course of his duties, if he has not done so, to be subjected to a disciplinary hearing and possible sanction.

Those are all in the course of his duties, it says so right in the [employer's] Charter and in this regulation, but that's not what was done here.

What was done here was what can happen to any other citizen and that is, he was charged, he was investigated for a criminal code offence, he was charged with a criminal code offence of assault cause bodily harm.

And, which charge was later stayed. And so the fact that he's a police officer and that the consequences arose as a result of him making an arrest does not mean that it arose in the course of his duties.

The worker's counsel argued that just because the employer had structured themselves with an internal investigative unit to investigate police officers, does not make the investigation part of the worker's employment. As a result, the investigation does not arise out of or in the course of employment as it is not causally connected to the worker's employment.

As previously stated, the worker alleges that he is the subject of a negligent investigation. The worker's counsel further argued that every other citizen of Canada who says they are subject of a negligent investigation has the right of legal action. The worker's counsel asserted that if that right of action is taken away then it would not be equality under the law and would not make sense.

The worker's counsel further stated:

So, we know that the course of [the worker’s] duties involve the preservation of peace, prevention of crime, apprehension of criminals and performing all assigned duties relative there too.

We know that if, in the course of those duties [the worker] misconducts himself by using excessive force, he can be disciplined. We know that that is not the allegation that is asserted here.

And we know that police have an option, because you can see right from this document, they had an option. They could internally discipline him or they could charge him criminally.

Only the police charge, nobody else does. They charged. The [employer] charged, nobody else. So, they had that option, they chose charges.

The worker's counsel suggested the term "…in the course of employment…" referenced in policy 44.05.20 would generally relate to "…in the doing of…". He stated that an 11 month investigation involving interviews of several other people does not relate to the worker doing his job and therefore the investigation of the individual's complaint regarding their arrest does not arise out of the worker's employment.

The worker's counsel concluded by stating:

And when you go to the policies that you have provided us with here today and apply those policies to the [employer's] Charter, the duties of a police officer, the code of conduct and the description of the duties that you see in the [employer's] regulation by-law, you will see that it is not in the course or rising out of employment to be subjected to a criminal investigation and charged for a police officer.

Analysis

The Statutory Bar

The bar from action by a worker against their employer for workplace injuries that arose out of, and in the course of a worker's employment is an essential part of the workers compensation system. It is part of the 'historic trade-off' that is the foundation that the Act was established upon when the legislation was enacted in Manitoba in 1917. It is an accepted fact that the worker's compensation system in Manitoba (as well as the other provinces within Canada) was modeled after the system recommended to the Ontario Government in 1910 by the Honourable Sir William Ralph Meredith, which were adopted in that province in 1914.

As stated previously, the bar from action is specifically set out in part (d) of the Preamble of the Act which states, in part:

AND WHEREAS Manitobans recognize that the historic principles of workers compensation should be maintained, namely (a) collective liability of employers for workplace injuries and diseases; (b) compensation for injured workers and their dependants, regardless of fault; (c) income replacement benefits based upon loss of earning capacity; (d) immunity of employers and workers from civil suits; (e) prevention of workplace injuries and diseases; (f) timely and safe return to health and work; and (g) independent administration by an arm's-length agency of government; The general premise of the historic trade-off is that workers lost their right of action against covered employers and other covered workers but gained compensation that depends neither on the fault of an employer (or other workers) nor its ability to pay. In exchange, covered employers are required to participate in a mandatory insurance scheme but were protected against liability claims that could (significantly) impact their ability to operate.

In Pasiechnyk, the Saskatchewan Workers Compensation Board applied the following questions to determine whether the right of action against an employer was barred:

1) Was the plaintiff a worker within the meaning of the Act? 2) If so, was the injury sustained in the course of employment? 3) Is the defendant an employer within the meaning of the Act? 4) If so, does the claim arise out of acts or defaults of the employer or the employer's employees while engaged in, about or in the connection with the employment in which the employer or worker of such employer causing the injury is engaged?

The Supreme Court considered the criteria applied by the Saskatchewan Board and determined that applying these questions to that application was reasonable. This panel accepts that these same four questions can be applied in determining the matter presently in front of it, given that the workers compensation legislation is very similar between the two jurisdictions.

This panel's finding is that all four of the aforementioned questions would be answered in the affirmative when applied to present matter being determined. In summary,

1) The plaintiff was a worker within the meaning of the Act. At the time of the injury, the worker was a police officer for a municipal police force. 2) The injury was sustained in the course of the worker's employment. 3) The defendant is an employer within the meaning of the Act and the co-workers are workers within the meaning of the Act. 4) The Statement of Claim arises out of acts or defaults of the employer and its workers in their conduct of an investigation during their normal course of duties of investigating an incident that took place on October 9, 2006.

Our analysis follows.

Questions 1 and 3

• The panel finds that the worker was a covered worker under the Act who was performing his regular job duties at the time of the original arrest on October 9, 2006. All parties have concurred with this finding.

• The panel finds that the employer is a covered employer under the Act. All parties have concurred with this finding.

• The panel finds that the co-workers were covered workers under the Act, who were assigned to an investigation of the worker. The co-workers' performance of those duties were done within the course of their employment. All parties have concurred with this finding.

Questions 2 and 4

The remaining two questions from the Pashiechynk decision form the substantial focus of our analysis.

#2 - Was the injury sustained in the course of employment?

Policy 44.05 provides a general interpretation of arising out of and in the course of employment:

Generally, an injury or illness is said to have “arisen out of employment” if the activity giving rise to it is causally connected to the employment—that is, if it is caused by some hazard which results from the nature, conditions or obligations of the employment. To have occurred "in the course of employment," an injury or illness must have occurred within the time of employment, at a location where the worker may reasonably be, and while performing work duties or an activity incidental to employment.

The policy also provides the following additional comment: Accidents arising out of purely personal sources over which the employer has no control are generally not compensable. Even if an accident occurs in the course of the worker’s employment, when a worker is engaged in personal activities not related to or required by his or her employment the resulting injury would not be compensable. However, if the obligations or conditions of that employment contribute substantially to an accident or aggravate a situation, then any resultant injury may be compensable.

There is no dispute that the worker was on duty as a police officer on October 9, 2006 when he participated in the arrest of the individual who subsequently made the complaint against him.

The panel further notes that the use of force is part of the unique duties of a police officer. The information provided to the panel by the parties makes reference to an employer policy on "Use of Force" which includes a "Use of Force Report" that is required to be filled out by police officers after force has been applied in the course of their duties.

In the types of instances that gave rise to this matter, if there is an allegation of an excessive use of force by a police officer, an internal investigation would occur to determine whether the police officer's actions were in violation of the workplace policies and/or were potentially criminal in conduct.

Both parties agree that the "event" (a necessary element of a claim under section 4(1) of the Act) that led to the worker's injuries was the investigation that was undertaken by the employer to which the worker was exposed.

The panel agrees with these assertions, and finds that the triggering event leading to the worker's injuries was the investigation process.

The worker's counsel asserts that this particular event, the investigation, had nothing whatsoever to do with the employment relationship. It was a criminal investigation, and the worker was investigated as a private citizen and not as a worker.

The panel notes that the worker's position opens up the question of the characterization of the investigation, and specifically, whether it is entirely out of the scope of the employment and thus outside the purview of the Act and its statutory bars.

The panel accepts that it is a normal part of most workplace operations for an employer to investigate into the circumstances if they are made aware that a worker has engaged in some sort of possible inappropriate or unacceptable action. Investigation and, where appropriate, disciplinary steps, are common and necessary. The type and scope of the investigation would be dependent upon the seriousness of the alleged action/event. Normally, if a worker's conduct also had the potential of being criminal in nature then the employer would refer the matter to an appropriate external police authority to conduct an investigation. Any staff involved in such investigations would be doing so in the course of their employment, and the investigation itself would be part of the employer's business operations.

The panel notes that because of the nature of this particular employer's business, which includes the operation of a municipal police service, if there is an allegation of inappropriate activity during the course of a worker's duties that also might meet the criteria of being criminal, the employer is required to conduct such an investigation in the dual role as an employer and also as the public institution responsible for investigating allegations of criminal conduct. This employer would be responsible to ensure that such an investigation met the required acceptable standards for both jurisdictions: a workplace matter as well as a criminal matter.

Given this unique role, the panel notes that there are clearly defined policies and procedures in place within this workplace outlining exactly how an investigation such as the one involving this matter is conducted and by whom. In the panel's view, an investigation is automatically triggered by a complaint, and it is only through the process unfolding does it become established that the outcomes might be administrative penalties or the instigation of a criminal proceeding, or the dismissal of the complaint. This process is carefully detailed in a publically accessible By-law that details the various steps of the process, the rights and obligations of all parties, and potential outcomes at various stages. In the panel's view, this process ensures that all complaints are investigated appropriately, whether they are with or without merit, with a view to ensure accountability and public confidence in the institution.

The By-law notes that allegations of these types of actions are investigated by the employer's internal investigative unit, which is what occurred in this instance. The panel finds that an "investigation" conducted by this worker's employer is a standard (and standardized) workplace procedure under the direct control of the employer that is required by its Charter and operationalized by its By-law. Therefore, whether the investigation has the potential to, or results in, criminal charges being filed against the worker does not move the process out of the normal employer/employee relationship. It is required, and expected, as a matter of public policy. Within this type of workplace, the workplace investigation process can be the same as the criminal investigation, with the added protection being provided to the worker, at the outset of the investigation, of a caution and the right to have counsel present. The established policies and procedures contemplates that occurring. The panel accepts that is why there is a general definition of what "unlawful conduct" is within this particular workplace's policies and procedures as well as identifying the general process as to how an allegation of unlawful conduct is to be investigated by this employer.

Because the use of force by its very nature would normally involve members of the public who may not be voluntarily willing to participate in whatever activities the police had engaged them in (such as an arrest), it is reasonable to expect that on occasion there will be complaints filed against police officers as to whether the use of force applied by them (which is part of their normal job duties) was excessive and potentially criminal. In the panel's view, the investigative process of this employer is part of the business of the employer and an expectation by every member of the police service. As well, the carefully specified requirements in the By-law as to the rules and responsibilities of public service members who are investigated also make their participation in an investigation part of their job duties.

As a result, it is the panel's finding that the facts as presented in this hearing would establish the investigation as an event occurring in the course of employment, with the worker's injury flowing from that investigation.

Dual Capacity Role

In coming to this conclusion, the panel did consider the worker's position that the investigation (and resulting charges) to determine whether the worker had engaged in a criminal assault during the arrest on October 9, 2006 caused his injury and the criminal investigation in this instance would fall outside the scope of the Act.

Put in another way, the worker's position is that he should be allowed to take action against the employer as a criminal investigator, not as the worker's employer. The basis for the action is that in this instance, the injury was the result of the criminal investigation, which is outside the scope of the employer/employee relationship protected from action under the Act. The employer is only protected from action under the Act as an employer, not as a criminal investigator.

The position submitted on behalf of the worker by his counsel is based on what is normally described as the 'dual capacity' theory.

The principle of the dual capacity theory is described in the Supreme Court of Canada ruling in Pasiechynyk, which is a leading decision related to the matter that gives rise to the application before this panel.

In the Pasiechnyk decision, the Supreme Court considered the Saskatchewan Workers Compensation Board's ruling that the employer as well as the Government of Saskatchewan were immune from a claim of action by a group of injured workers as well as the families of deceased workers, for the injury and deaths arising out of a workplace accident, by virtue of the employer and Government of Saskatchewan being contributors to that province's workers compensation system.

The excerpt of the ruling that addresses the dual capacity argument states:

The majority of the Court of Appeal sought to parse the function of government on the basis of what is called the “dual capacity” theory. According to this theory it is necessary to divide the role of government in accordance with its public duty and private duty. The fact that this dichotomy exists in determining the tort liability of public authorities is cited as justification for equating the regulatory aspect of a government’s function with its public law duty. Furthermore, the respondents submits that it is only with respect to functions that attract a private law duty that the government is an employer.

I respectfully disagree with this analysis. The public duty versus private duty dichotomy is employed in cases such as Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), and Just v. British Columbia, [1989] 2 S.C.R. 1228, to determine whether there is a duty of care which can support a private cause of action in tort. In order to do so, it must be possible to engraft on the public law duty a private law duty. The rationale of the distinction is that certain kinds of activities of a public body that are policy oriented do not give rise to a private law duty while operational-type activities do. These principles have no application here. The existence of a private law duty and hence a cause of action is not in issue. It is assumed that there is a cause of action at common law but the question is whether it is barred by s. 168. Government activity in regulating an industry involves both public and private duties. These activities are carried out on behalf of the government by individuals who, for the most part, are employed by the government. The government may be an employer whether the individual is making policy decisions or carrying them out. The fact that some policy-oriented activities are not actionable is not relevant to the issue that was before the Board.

The panel concludes that the same analysis should be applied to this matter. While it may be correct that the employer, in conducting their investigation of the worker, was operating as both a "private" employer as well as providing a public function, the public function is still being carried out by employees (the co-workers) who are defined as "workers" under the Act, and the alleged "negligent investigation" that the action is based upon is part of the duties that the co-workers performed in the normal course of their employment.

The panel's finding is that an employer's actions and conduct, in its investigation, as a public institution is still protected from action in their capacity as an "employer" under the provisions of the Act.

Subsection 9(7)

The panel's finding pertaining to the dual capacity theory is also supported by subsection 9(7) of the Act.

As noted previously, both parties acknowledged at the commencement of the hearing that the two co-workers who investigated the complaint against the worker were "workers" under the provisions of the Act and that they were acting in that capacity when they were investigating the worker.

Investigating other police officers to determine whether there are reasonable grounds to conclude that the other police officers have engaged in criminal activity in the course of their employment is part of the normal duties of the workers assigned to the internal investigative unit of this workplace. As a result, the panel accepts that the act of investigating the worker by the co-workers is incidental to their work.

Subsection 9(7) of the Act prohibits a worker who is covered by the Act from taking action against another worker covered by the Act, for a personal injury that arose out of an in the course of their employment and when the other worker was working "…within the conduct of the operations usual in, or incidental to, the industry carried on by the employer."

The panel does not accept the worker's counsel's argument that subsection 9(7) only applies to workers of a third party.

It is the panel's view that subsection 9(1) gives workers the right to file action against a third party other than the employer, as the right to action against an employer is barred under subsection 13(1). If section 9 of the Act was limited in the manner suggested by the worker's counsel, then a worker would be entitled to take action against any other person (or corporation) other than their direct employer whose actions (or inaction) gave rise to the worker being injured. This would include co-workers.

However, such interpretation of the statute and a consequent action against workers of a covered employer would be contrary to the historic principles contained in the preamble of the Act upon which the system is based, which states, in part:

(d) immunity of employers and workers from civil suits; (underline added)

The panel's position is that subsection 9(7) is specifically included in the Act to protect workers, as they are described in the Act (and other "employers" as they are described and covered under the Act) from action by an injured worker.

The panel finds that the worker is barred from taking action against the two co-workers identified in the Statement of Claim under subsection 9(7) of the Act. The panel further notes the worker's position that subsection 9(7) somehow allows a worker to be sued as a third party is simply not consistent with the general intent and interpretation of the Act as set out in the preamble of the Act and by the Supreme Court.

#4 - Does the claim arise out of acts or defaults of the employer or its workers while engaged in their employment?

The allegations contained in the worker's Statement of Claim against his co-workers alleges that, in the course of their investigation, the co-workers engaged in a negligent investigation. Given our finding that the investigation occurred within the scope of the employer's business, the panel finds that the acts or defaults of the co-workers who were engaged in that investigation also bar a right of action against the employer and the co-workers.

Subsection 13(1)

As stated previously, it is the panel's finding that the facts, as presented in this matter in the Statement of Claim, would preclude rights of action outside the Act.

Therefore, the panel finds that the criteria used in the Pashiechynk decision to determine whether an employer is protected from action under the Act have all been met, and therefore the action launched by the worker against his employer is barred under subsection 13(1) of the Act.

Subsection 1(1.1)

During the hearing, the panel asked the parties to comment as to the applicability of subsection 1(1.1) of the Act to this matter, and will address this matter as part of our decision. Restriction on definition of "accident" 1(1.1) The definition of "accident" in subsection (1) does not include any change in respect of the employment of a worker, including promotion, transfer, demotion, lay-off or termination.

The panel also referred the parties to Policy 44.05.30 - Adjudication of Psychological Injuries, which states, in part the, following:

Discipline, promotion, demotion, transfer or other employment related matters are specifically excluded from the definition of accident.

The parties took the position that subsection 1(1.1) did not apply in this instance. However, the panel is of the view that our comments as to the applicability of subsection 1(1.1), and claim acceptability in general, are still required in this situation given that worker has not applied for worker's compensation coverage at the time of the hearing and therefore, no actual determination as to eligibility for compensation has been made by the WCB.

The panel's role with respect to an application under subsection 68(4) of the Act is not to determine the acceptability of a workplace injury claim if it was submitted to the WCB. Further, a determination under subsection 68(4) is not predicated on whether or not there is or will be an acceptable claim for workers compensation, but rather, the determination of the applicability of a bar to action under subsection 68(4) is based upon whether the injury, as alleged, was sustained in the course of the worker's employment as set out in the Statement of Claim, which in this instance the panel has determined to have occurred.

Therefore, the panel does not find it necessary, nor does the panel believe it to be its role in this instance, to make a finding on claim acceptability as part of this decision. The panel's comments herein should not be construed as a decision made by the Appeal Commission in its more traditional role in respect of a WCB claim nor as a direction to the WCB regarding a decision on this matter.

In support of our position, the panel notes that in the Pashiechynk decision, and the previously noted criteria that was used in that matter to determine whether the employer was protected from action under the Act, the question of actual claim acceptability was not part of the criteria used by the Saskatchewan Workers Compensation Board which were accepted by the Supreme Court in determining whether there was a bar to action by the injured workers and deceased worker's families.

The panel recognizes that there may well be circumstances where a worker is barred from action against their employer and/or co-workers for a workplace injury and is still not entitled to workers compensation coverage for a variety of reasons which may include statute, regulations, policies or evidentiary issues. A denial of benefit coverage for a workplace injury does not automatically result in a right of action by a worker against a covered employer or covered co-worker.

As previously noted, the worker has not made a claim for coverage under the Act. However, even if he did apply for coverage, and that claim was denied, the panel finds that the worker would still be barred from action against his employer and the two co-workers.

As mentioned previously, the statutory restrictions prohibiting a covered worker from taking civil action against a covered employer (and their co-workers) is part of the historic trade-off that the workers compensation system is based upon. The structure of the legislated insurance coverage and how it is applied to any individual claim for compensation is controlled by statute and regulations. The panel's position is that determinations of individual claim entitlement does not impact the general principles the panel relies in determining whether there is a bar against an action under subsection 68(4).

The panel's position is supported by Wilson v. Medicine Hat (City of), [2000] ABCA 247 (CanLII).

In that case, a group of workers applied for compensation under the workers compensation system in effect in the province of Alberta. The Alberta workers compensation system is based on the same "historic tradeoff" principles that the Manitoba workers compensation system is built upon. In the Alberta matter, the worker's claims were denied at the initial adjudication level as well as at each level of the appeal process. As a result, each of the injured workers (and their spouses) filed suit against their employer, several co-workers, the Crown, other employers who provided services/products to the worker's employer (and also were participants in the provincial Workers Compensation system in Alberta) as well as two American Companies (who were not participants of the provincial WCB system in Alberta).

The Alberta Court of Appeal barred action against all the respondents except the two American companies named in the suit for a number of reasons, one of which was that such an action would be an abuse of process. There was no bar to the right action against the two American companies as they were not "employers" covered under the workers compensation legislation in Alberta.

However, there was an additional rationale for barring action by a worker against an employer contained in the Wilson ruling which states, in part:

I am inclined to think that s. 18(1) is intended to bar suits by workers against all employers covered by the WCA whenever a worker claims compensation as a result of a work-related “accident”. Section 16(1) gives the Board jurisdiction to determine all claims for compensation under the WCA. Section 9(1) makes the WCA applicable to all employers in Alberta (subject to an exception not relevant here). Section 12(1) gives the Board “exclusive jurisdiction” (subject to the Commission’s authority) over “all matters and questions arising under this Act” and makes its decisions “final and conclusive” and “not open to question or review in any court.” Similarly, s. 7(1) gives the Commission exclusive jurisdiction to determine all matters arising under the WCA in respect of appeals from certain bodies and makes its decisions “final and conclusive” and “not open to question or review in any court”. As mentioned by Côté J.A., the Supreme Court of Canada has referred to the “historic trade-off” embodied in this type of legislation and been deferential to the jurisdiction and decisions of workers’ compensation bodies. In light of that Court’s assessment of the purpose of this legislation, I believe the intent of s. 18(1) is to bar suits by workers against all employers covered by the WCA, even when board authorities decide compensation is not payable. A different interpretation would undermine the operation of the WCA, through which employers pay into a fund in return for protection from lawsuits in individual cases covered by the WCA. A contrary interpretation would also encourage workers not to put their best case before boards, hoping that negative board decisions will permit them to seek larger damages through the courts. Such an outcome would destroy the object of the legislation. (Underline added)

For the reasons noted above, the employer's application under subsection 68(4) of the Act is granted and the worker's right of action against his employer and the co-workers, as set out in his statement of claim, is forever barred.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

M. Kernaghan - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 12th day of January, 2018