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 student who was injured while participating in an educational course practicum has the right of action against the injured student's educational institute and/or the practicum placement facility ("placement facility"). 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 an injured student against her educational institute and/or placement facility is barred pursuant to the provisions of the Act.

Decision

The injured student is barred from action against her educational institute and the placement facility pursuant to the provisions of the Act.

Background

The injured student ("the student") was enrolled at an educational institute participating in a two year diploma program which commenced in September 2015. On May 2, 2016, the student, as part of her course curriculum, began a practicum without pay at the placement facility.

On May 29, 2016, the student and another staff member were assaulted by two residents of the placement facility, causing the student serious injuries which required hospitalization.

There was initial contact between the student and WCB after the assault to determine whether the student wished to apply for WCB coverage. The student was provided with a Third Party Election Form by WCB. The WCB asked her to complete the form and indicate whether she will apply for benefits through WCB or file a statement of claim against a third party in relation to the injuries she suffered as a result of the assault. The student was informed that she could do one or the other but she could not do both.

On or about June 30, 2016, the student advised WCB that she had elected to pursue legal action against a third party (or parties) and would not be applying for benefits through WCB.

The student filed a statement of claim in the Manitoba Court of Queen's Bench on July 29, 2016, naming the educational institute and the placement facility as defendants, seeking general damages, punitive damages and special damages.

The student has not applied for workers compensation benefits for her injuries.

The placement facility applied to the Appeal Commission on October 26, 2016 for a ruling under subsection 68(4) to determine whether the student's right of action is removed pursuant to the provisions of the Act. On December 15, 2016, the educational institute also applied to the Appeal Commission for a determination whether the student's right of action is removed.

A pre-hearing meeting was scheduled with the parties and the Appeal Commission. The pre-hearing meeting took place on May 8, 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 deadlines for the submission of hearing briefs and responses.

A hearing was held on April 19 and May 10, 2018 to consider the application on behalf of the educational institute and placement facility.

Reasons

Applicable Legislation

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; 

Definitions 

1(1) In this Act, 

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

(a) a wilful and intentional act that is not the act of the worker, 

(b) any 

(i) event arising out of, and in the course of, employment, or 

(ii) thing that is done and the doing of which arises out of, and in the course of, employment, and 

(c) an occupational disease, 

and as a result of which a worker is injured; 

… 

"learner" means any person who, although not under a contract of service or apprenticeship, becomes subject to the hazards of an industry within the scope of Part I for the purpose of undergoing training or probationary work as a preliminary to employment; 

… 

"worker" includes 

(a) a person, whether or not under the age of 18 years, who enters into or works under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour or otherwise, 

(b) a learner, 

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); 

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, the panel was provided with a statement of facts that was agreed to by all parties to be relied upon for the purposes of the hearing only. The agreed statement of facts can be paraphrased as follows:

1. The Respondent was a student at the educational institute enrolled in a two year diploma program which had started on September 21, 2015. 

2. On May 2, 2016, the student commenced a student practicum without pay at the placement facility pursuant to a Practicum Agreement entered into between the educational institute and the placement facility. The student was not an employee of the placement facility. 

3. The Practicum Agreement between the educational institute and the placement facility states that students engaged in the practicum are covered for injuries in accordance with the Workers Compensation Act, C.C.S.M. c. W200 (the "Act"). The Practicum Agreement further states that in the event of an injury during the practicum, the representatives of the placement site shall promptly contact the educational institute to ensure that a claim can be made to the Workers Compensation Board of Manitoba ("WCB"). This document was not provided to the student. In a document, signed by her, entitled Staff Orientation and Training Checklist, clauses 14 and 15, boxes were ticked off as "N/A" relating to any pay or benefits. 

4. At all material times, the placement facility was and is an employer registered with WCB pursuant to the Act and paid premiums for its employees. No premiums were paid in respect of students on a student training placement 

5. The educational institute is an employer registered with the WCB pursuant to the Act. 

6. On May 9, 2016, the student signed a Condition of Employment form, indicating that she had read and agreed to be bound by the Policy and Procedures Manual of the placement facility. 

7. On May 19, 2016, the student signed a Staff Orientation and Training Checklist for employees working at the placement facility, indicating that both documents had been explained to her and that she understood the information contained therein. Nothing in this document related to benefits, inclusive of WCB coverage. 

8. On May 29, 2016, the student was working a shift at the placement facility with one other staff member, when the student and the other staff member were attacked by two residents of the placement facility, causing the student serious injuries which required hospitalization. The two residents have since been convicted of aggravated assault in relation to the attack. 

9. On May 30, 2016, an Employer's Accident Report was submitted to WCB, listing the student's job title as a Work Experience Student. 

10. On June 8, 2016, a representative of WCB visited the student in the hospital and provided the student and her mother with a WCB Third Party Election Form which offered the student an option to pursue her claim through the WCB or take legal action against the third parties who caused the injury. There is disagreement among the parties as to whether WCB denied the student benefits or whether she elected not to claim them. 

11. The student filed a statement of claim in the Manitoba Court of Queen's Bench, on July 29, 2016 naming the educational institute and the placement facility as defendants, seeking general damages, punitive damages and special damages. 

12. The educational institute and the placement facility have both taken the position that the student's claim against them is statute barred pursuant to ss. 9(7) and 13(1) of the Act. 

13. The student denies the application of the Act. 

14. The issue giving rise to this hearing is whether or not the student's right to action is removed pursuant to the provisions of the Act.

The panel finds that the agreed statement of facts is generally consistent with the evidence on file and provided at the hearing, and will be relied upon in our analysis. The panel notes that with respect to item 10 of the Agreed Statement of Facts, the WCB representative did not visit the student on June 8, 2016 but instead visited with student on June 2, 2016 and the file note regarding that meeting was dated June 8, 2016.

In addition, all three parties provided the panel with comprehensive briefs prior to the hearing outlining each of their respective positions including prior appeal decisions from within Manitoba as well as other jurisdictions that they asserted supported their respective arguments.

Witnesses

The first witness was called by the educational institute.

She advised the panel that she was the educational institute's insurance claim specialist.

The witness stated that she worked directly with the WCB. She stated that the educational institute was a self-insured workplace and therefore the educational institute's WCB costs were calculated on that basis.

The witness stated she had been previously involved in other WCB claims involving students who were injured while participating in a practicum.

The witness described the educational program that the student was involved in and what the role of the practicum was in that program.

In response to questions asked by counsel of the educational institute as to what the role of the practicum was in the educational program, the witness stated:

A The role of the practicum basically is to have the students practice in real life the skills and the knowledge that they have learned in the classroom and to apply those, and again in a real life setting. 

Q Would you say it assists them -- 

A Oh, yes, oh, definitely. A practicum, the major role of the practicum, it assists them in obtaining education afterwards. 

Q Education afterwards? 

A I mean, sorry, employment afterwards.

The witness stated that students receive a practicum handbook which describes the types of facilities that the students would be going into under the program. She stated that the placement facilities could include treatment centres, correctional centres and mental health centres.

The witness stated that the students in this program were evaluated on a weekly basis during a placement and that there was also a classroom component that students were required to participate in. The witness confirmed that the injured student in this matter was evaluated as part of her practicum.

The witness reviewed and confirmed the Practicum Agreement that was in place between the educational institute and the placement facility at the time of the student's assault.

The witness was referred to the section of the Practicum Agreement pertaining to WCB coverage and confirmed that it was her understanding, based on item 10 of the Practicum Agreement, that students who engage in a practicum through the educational institute have WCB coverage.

The second witness was called by the placement facility.

The second witness commenced her employment with the placement facility ("placement facility") in 1981 and became the Executive Director of that facility in 2005.

She provided a brief overview of the placement facility. She described the facility as a "…therapeutic community providing residential, primarily residential services to people with addiction and co-occurring mental health disorders." She stated that at the time of the injury this facility worked with youths.

The witness confirmed that the placement facility paid premiums to the WCB.

The witness explained that the placement facility had taken practicum students from the educational institute annually for approximately 10-12 years prior to 2016 that she could find records for, and stated on further questioning by the panel that the placements from the educational institute had occurred prior to that and typically, the placement facility would have one placement per year from the educational institute.

The witness explained there was a benefit to taking on practicum students in that they were able to train potential workers who would eventually become employed at the placement facility. The witness confirmed that previously the placement facility had employed graduates of the program which the injured worker was enrolled in.

The witness described the Practicum Agreement that was contained within the Agreed Book of Documents. She confirmed that the Practicum Agreement was prepared by the educational institute and that particular document was prepared specifically for the placement of the student. The witness reviewed various parts of the Practicum Agreement. In response to questions asked by counsel for the placement facility the following was stated by the witness:

Q If you look at paragraph 5(b), that refers to evaluations and reports required by the [educational institute]? 

A Yes. 

Q To your understanding, was [the placement facility] required to provide evaluations and reports to [the educational institute] with respect to [the student]? 

A Yes, we were. 

Q Can you look at paragraph 5(b), or, sorry, (d), 

"allowing each student to use all practical facilities, equipment and supplies required to gain practical experience in relation to the program objectives defined by the [educational institute]". 

Do you see that? 

A Yes. 

Q And from your perspective, what did that mean [the placement facility] needed to do for [the student]? 

A Well, our role was to give her as much practical experience as we could during her placement with us, to familiarize her with the setting, certainly with the facilities, and what the normal course of the duties would be for a worker in the role of youth support worker, which is what she was mimicking basically.

The witness described the practicum placement process from the placement facility's perspective in general terms and in terms specific to this matter.

The witness confirmed that, for the purposes of the internal files and paperwork, practicum students are treated as employees of the facility. The witness reviewed a number of documents on file related to the student's placement at her facility.

With respect to a job description for a position within the placement facility, when asked if the job description was applicable to the student's practicum, the witness responded as follows:

This provided the basic information to the student as to the role we were putting her in to have her learn as much as we could possibly teach her during the period of time she would be with us. These duties mimic the role or she would be mimicking the role of someone who was actually in this paid position, as much as possible, given the abilities and the time frame.

The witness also confirmed which particular aspects of the job description would apply to the student as she was not obligated to fulfil all of the responsibilities and duties contained in the job description.

When asked by the panel whether there were occasions when students who completed their practicum at the placement facility were not hired by the facility the witness stated that it occurred and when asked why a student might not be hired the witness responded by stating:

They may have job prospects elsewhere. It's a, you know, it's an open field for them once they have their certificate, their diploma that's received. They can basically, you know, apply for work wherever they wish.

They aren't compelled to take employment with say my organization. They can go elsewhere if they want. And I think they certainly do. They might be looking for a specific kind of work. They might not want to work in the addictions field. I mean there's a variety of reasons why a student wouldn't then stay on with the organization, and the other factor is we may not have an open position when they are ready for employment. We might not have a vacancy.

The third witness was the student.

The student testified that she was enrolled at the educational institute and was interested in the program she was enrolled in at the time of incident because she wanted to work with children. The student provided the panel with background as to why she wanted to work with children in the 3-12 year age group.

The student stated that she had no intention of working at the placement facility or working with youths after she graduated from her course.

When questioned by the panel, the student confirmed that she was in a practicum placement at the placement facility. She also confirmed that it was her understanding that participation in the practicum was a requirement for completing the course she was enrolled in at the educational institute.

The student confirmed that she submitted a resume to the placement facility and that she was interviewed prior to the practicum placement. However, she stated that she had initially pursued doing her practicum with other organizations but was not able to make those arrangements. As a result, it was at the direction of one of her course instructors that she made arrangements for her practicum to occur at the placement facility.

The student also stated that she questioned the placement at the placement facility as she wanted to work with children while the purpose of participating in a practicum at the placement facility would be to learn to work with youth.

The student also reviewed a list of job duties for a position at the placement facility. She confirmed which tasks contained in that job description she performed during her practicum. The student described some of her duties as job shadowing.

The student was provided a copy of her practicum evaluation that was dated May 27, 2016 and she confirmed that she understood that the placement facility was evaluating her on such items as employability skills, how she functioned within the team of employees, following direction and instruction from other staff. The student also confirmed that she was aware that an important component of her practicum work was that she establish relationships with the clients of the facility.

The panel also obtained evidence from the educational institute's corporate counsel who was in attendance at the hearing.

The educational institute's corporate counsel advised the panel that it was within his scope of responsibilities to review each practicum executed by the educational institute.

He described the practicum placement component of the educational institute as follows:

That's been a hallmark of what distinguishes [the educational institute] from the universities. We do experiential learning, which means either a practicum, which is an unpaid placement, or a co-op, which is a paid placement, and that's been something we've been doing -- that's just in the DNA of the school.

When asked why he felt that it was important for the educational institute to have a practicum agreement with another institution or facility, he stated:

To eliminate confusion between the roles between the [educational institute] and the placement site, and state what the expectations of the placement site and the [educational institute] are.

Also one thing that kept coming up when I showed up, people kept -- when I showed up as an employee of the [educational institute] in May of 2009, I was informed that there was a lot of concern about, well, what happens if something goes wrong, whose insurance goes into place.

And that's where clause 10 came in. I drafted that specifically to set forth an expectation that it was [the educational institute's] Workers Compensation that would cover it off. And we had that confirmed in a letter from the Board. That's why that clause was inserted…

The witness also stated that prior to the WCB coverage being outlined in the practicum agreement, many placement sites were reluctant to take students from the educational institute on practicum placements because there was an exposure to liability should a student be injured while on a practicum placement at a worksite. The witness stated that once it was clarified that if a placement student was injured in a placement facility, the injured student would be covered under the educational institute's WCB agreement, the educational institute was able to get more placement sites agreeing to a practicum placement.

The Placement Facility's Position

The placement facility was represented by counsel.

The placement facility's counsel reviewed their brief previously submitted and answered questions from the panel.

The placement facility submitted to the panel that it was their position the student was a "learner", and therefore a "worker", within the meaning of ss. 1(1) of the Act. As a result, the student was statute barred from taking action against the placement facility pursuant to ss. 9(7) and ss. 13(1) of the Act.

Counsel for the placement facility argued that the evidence in front of the panel confirms that the student was working directly with residents at the placement facility. Such interactions would expose the student to the same hazards as a regular paid employee who worked at the placement facility.

Counsel for the placement facility submitted appeal decisions, primarily from the Ontario Workplace Safety and Insurance Act Tribunal (ONWSIAT) (the Ontario equivalent of the Appeal Commission in Manitoba) that provided the panel with examples of what that jurisdiction had determined to be learners under that legislation. Counsel argued that since the legislation in both jurisdictions was virtually the same, the panel should consider the decisions provided when considering the present fact situation.

Counsel for the placement facility submitted that the cases cited were applicable to the present matter before the panel. As result, the student would meet the criteria of "learner" under the definition contained in the Act, and further, since the student would be defined as a learner under the provisions of the Act, she would therefore be defined as a "worker" under the Act as the definition of "worker" under the Act includes learners.

Counsel for the placement facility further stated that since the student would be considered a worker under the Act, she was only entitled to bring action against a party other than her employer, as section 9(1) allowed an injured worker to take action against a person other than their employer for an accident that happens during the course of their employment.

Counsel submitted that the bar to action against the placement facility was also restricted by section 9(7) of the Act.

Counsel for the placement facility further submitted that the student, as a learner, was a worker within the meaning of the Act and had a choice: she could bring action against her assailants or she could apply for WCB coverage. However, she could not do both under the Act.

Counsel for the placement facility submitted that "it matters not whether [the placement facility] was [the student's] employer, it need only be an employer under the Act" and further stated in their submission "Accordingly, pursuant to these sections, a worker's right and rights of action are extinguished against an employer registered with WCB because of a worker's right to compensation. The ability to sue an employer is not dependent upon the worker actually receiving benefits under the Act, but simply due to his/her right to benefits under the Act."

Counsel for the placement facility submitted that the panel should take a broad interpretative approach which, she stated, the cases cited in her brief have done when determining whether an individual should be defined as a learner under the Act.

With respect to the issue of the student not intending to pursue a career at either the placement facility or with youths, she stated:

And I would submit to this panel that to take into account these kinds of subjective intentions, whether or not someone wanted to work with youthful criminals as a means to make a determination on whether or not an individual is a learner would render the provisions of the Act meaningless, or certainly would result in inconsistent application. There's no requirement in the Act that consideration be given to these subjective intentions.

Counsel for the placement facility concluded their submission by stating:

…she was in that program, at that practicum placement, exposed to those hazards so as to become employed in some way related to child and youth care.

Those activities by her were a preliminary to employment, introductory, preparatory, antecedent to her eventual goal of building her experience and working with children who need support.

I again want to refer the panel to the objects and purposes of the Act, that it should be given a broad and liberal inclusive interpretation, keeping in mind the benefits to workers in exchange for the trade-off; keeping in mind the factual scenario that exists with respect to [educational institute] practicum placement students.

And, in closing, a finding that [the student] is a learner within Manitoba's definition is not only in line with case law from other provinces, in line with the objects and intents and purposes of Manitoba's acts, and it makes sense on a broader public policy perspective here.

Educational Institute's Position

The educational institute was represented by counsel.

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

Similar to the placement facility's position, counsel for the educational institute also submitted that if the student was a worker under the Act, she was entitled to bring action against some person other than her employer or make a claim for compensation but she could not do both, and further a worker is not entitled to sue employers pursuant to sections 9(7) and 13(1) of the Act. Instead, the student was entitled to apply for WCB benefits.

Counsel for the educational institute also referred the panel to cases previously decided by the Commission as well as decisions under ONWSIAT as examples of circumstances when the right to action is removed from a plaintiff because of provisions of the relevant legislation within that jurisdiction.

With respect to issue of whether the student was a learner (and therefore was a worker under the Act), counsel for the educational institute stated the following in their brief:

[The student] was enrolled in a program at [the educational institute] that required her to complete a practicum that subjected her to the hazards of the industry for the purposes of undergoing training.

Although, individuals participating in work experience programs are not automatically considered workers under the Act, in this case [the student] fits within the definition of "learner" and "worker"

Counsel then addressed the student's counsel's argument (and the student's evidence) that the student had no intention of seeking employment with the placement facility or working with the age group of clientele who resided at the placement facility, so the student should not be barred from action against the placement facility, as follows:

The next case in my brief is at tab 7, and I would submit this case is on all fours with [the student's] case before you. So this is Decision 2197/00, and it was decided at the end of 2006. 

…

In this case the worker was participating in a training program that would qualify her as a health care aide, just as [the student's] diploma would qualify her as a youth and child care worker.

At play in this case was the former Ontario legislation with a similar definition to learner to Manitoba's legislation, but the probationary work was to be specified or stipulated by the employer.

So on page 8, paragraphs 40 to 45, there's discussion about how broadly specified or stipulated by the employer ought to be interpreted. Ultimately it was decided by, in this case, that the phrase should be interpreted very broadly.

Paragraph 45 states that:

We agree with the Board that the definition can, and should, be read broadly. The focus is on the fact that individuals are subjected to the hazards of an industry by virtue of the fact that they are undergoing training for future employment in that industry. If the learner is injured while doing work in a placement situation, they are entitled to benefits.

It is not necessary that the training be specified or stipulated by one particular employer as a condition of employment with that particular employer. It is instead sufficient if the training is a requirement of employment in that type of work generally.

([2006] O.W.S.I.A.T.D No. 2863 Decision No. 2197/00)

So although my friend argues in his brief that [the student] had no intention of working for [the placement facility], that is not necessary at all to be found to be a learner under the act, even with the Ontario stricter definition.

Respondent's Position

The student was represented by counsel.

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

Counsel for the student stated that his client was not a learner under the Act and therefore there was no bar to action against the applicants.

Counsel for the student differentiated the services provided by the placement facility to youths from what the student was enrolled in her course for, which was to work with children. It was the student's counsel's position that working with youths and working with children were two different industries and should be considered as such for the purposes of interpreting the definition of learner under the Act.

Counsel further argued that the definition of learner was predicated upon the person being engaged in training as a preliminary to employment. Since the student had no intention of seeking employment working with youths, the student could not fall under the criteria of that definition when she was injured.

In support of this, counsel stated:

She didn't want to be in that general industry. She didn't want to work with teenagers. She didn't want to work with troubled teenagers. 

…

You can't ignore that the hazard of the industry that she was looking to be employed in, if she was going to be employed, was not this hazard, and not this industry.

Counsel for the student also submitted:

• The student has an action before the courts for general and punitive damages. Neither remedy was available to be provided by the WCB;

• The student was provided with documents indicating that she had the right to elect to sue and the worker did so on good faith based upon representations made by WCB employees;

• The student was a not a signatory or party to the Practicum Agreement that was in place between the placement facility and the educational institute. Therefore, the student is not bound by the terms of that agreement;

• The policies and procedures manual that the student was obligated to read stated that the student was entitled to no benefits;

• The document entitled Staff Orientation Checklist, wherein the student was required to check off boxes to indicate her awareness and agreement was ticked "NA" (not applicable) regarding the section stating "Received explanation of pay, pay periods, benefits and probationary period." As such, the worker was not considered to be like an employee and was not aware that she was removing herself from her rights to sue for potential injuries;

• Section 77.1(1) states: 

Person in work experience program declared worker 

77.1(1) The board may, by order, declare any person or group of persons who participates in a work experience program and who is not otherwise considered a worker under this Act, to be a worker within the scope of this Part, subject to any terms and conditions, and for the period, that the board considers appropriate.

The word "may" imports discretion into the decision making process of the panel and that the circumstances here militate against the removal of the action because "the application against the right of action by the applicants is a "…transparent attempt to extricate themselves from litigation while no relief or benefits can be provided to the respondent whatsoever. It is also because the respondent, quite simply, should be able to present her action due to its egregious nature…";

• The matter that is the cause of the action is not an accident but a "crime" committed upon the respondent and as such, would not fall within the normal meaning of a hazard of the industry.

With respect to the issue of whether the student was a "learner" within the meaning of the Act, counsel for the student stated the following in their submission:

Respondent was not an employee of the [placement facility]. She had not applied to be such. She was not in a training program employed there. She was not paid for her efforts. And there was no basis to believe and no evidence tendered to suggest she ever wanted to work with youthful criminals

Counsel for the student also referred to various ONWSIAT decisions that they submitted were in support their position.

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 was adopted in that province in 1914.

The general premise of the historic trade-off is that workers, who were covered by the Act, 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 the 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.

As noted earlier, the bar from action is specifically set out in part (d) of the Preamble of the Manitoba's Act.

The definition of learner was first included in the Act in 1950. At that time it read:

"learner" means any person who, although not under a contract of service or apprenticeship, becomes subject to the hazards of an industry within the scope of Part I for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment; 

The definition was amended in 1953 and still reads:

"learner" means any person who, although not under a contract of service or apprenticeship, becomes subject to the hazards of an industry within the scope of Part I for the purpose of undergoing training or probationary work as a preliminary to employment;

In previous Manitoba cases involving applications under S. 68(4) of the Act, the Appeal Commission has relied on the criteria set out in In Pasiechnyk v. Saskatchewan (Workers' Compensation Board) [1997] SCJ No. 74 (noted hereinafter as "Pasiechnyk"), which 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 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 us, 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 are answered in the affirmative when applied to this case:

1) The student was a worker within the meaning of the Act. At the time of the injury, the student fell under the definition of learner. 

2) The injury was sustained in the course of the student's 'employment' while participating in a practicum at the placement facility. 

3) Both the educational institute as well as the placement facility are employers within the meaning of the Act. 

4) The Statement of Claim arises out of alleged acts or defaults of the employers by placing the student into a situation which ultimately resulted in her being seriously assaulted by residents of the placement facility.

Our analysis is as follows:

Question 1 - Was the plaintiff a worker within the meaning of the Act?

All parties agreed that this question was the determinative issue in this matter and the one that was the main focus of the parties' submissions and arguments.

The panel finds that the student was, at the time of the injury, enrolled as a student at an educational institute. This was confirmed not only in the Agreed Statement of Facts but also by the student's evidence.

While being enrolled as a student is not required to meet the definition of learner under the Act, the panel finds in this instance it is relevant to matter in front of us, as it was in that capacity that the student was required to participate in the practicum. The program in which the student was enrolled specifies four discrete practicum courses as part of the required curriculum to graduate from the program.

The panel also finds that, at the time of the injury, the student was participating in a practicum placement at the placement facility. This was also confirmed by the Agreed Statement of Facts as well as the evidence provided to the panel. The panel notes, in particular, the formal Practicum Agreement between the educational institute and the placement facility which indicates that the placement facility was an approved host of the practicum in the program.

Counsel for the student did not dispute that the student was participating in a practicum. However, he did dispute whether participating in a practicum in this instance would fall under the definition of a learner.

The student's evidence was that not only was she not interested in working at the placement facility, she was not interested in working within the adolescent age group which the placement facility provided services to.

The panel finds that the student's counsel's arguments, if accepted, would place severe restrictions upon legislation that would normally be interpreted as broadly as possible, by bringing in the question of subjective intent.

The panel does not agree that the student's ultimate career goals should be given weight when considering whether a person should be considered a learner. Instead, it is the panel's view that the definition of a learner should be given a much more broad interpretation. The evidence before this panel is that the purpose of the student participating in the practicum was that it was a required part of her training at the educational facility in a program whose stated purpose was to provide employment upon graduation.

The impact of the panel accepting the student's counsel's arguments would mean that any employer who accepted a person under a practicum program (or any other non-paid training program) would only be entitled to coverage under WCB if there is a clear representation that the 'trainee' was planning on working at that specific facility and in that specific job. Taken further, the same would hold true for an individual who was seeking unpaid training in a workplace; the 'trainee' would not be entitled to WCB coverage unless they had specifically identified the workplace and the specific work they were training in as being their desired employment upon completion of the training. The panel finds such scenarios as being unacceptable, far too narrow, and contrary to the intent of the Act.

The panel notes that the case law from other Canadian jurisdictions also looks to the nature of the engagement between the individual and the learning environment as a key determinant. We note that most of the fact situations where the individual was found to be a worker were far more informal than in the present case. The very fact of the formalized arrangement between the educational institute and the placement facility, the evaluation and reporting criteria and the program requirement for four practicum placements are very significant factors in our finding that the worker was a learner.

The panel finds, based on the evidence before us, that the student would meet the criteria of learner under the Act and further, as a learner, the student would fall under the definition of worker under the Act.

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

Clearly, by the very definition of a learner, a person who would fall under this definition would not be 'in the course of employment' in its normal sense as there is no employment contract or contract of service. However, the definition of learner under the provisions of the Act specifically provides that under this definition, a person only needs to be subject to the hazards of an industry. In this instance, the panel finds that the relationship between the student and the placement facility was quite structured and consistent with an employer/employee relationship;

• She identified the various job duties she was expected to perform. 

• She had a schedule as to when she would was expected to participate in her duties at that facility on a day to day basis. 

• She was evaluated on the duties performed by her at the placement facility 

• There was a Practicum Agreement that placed specific obligations on the placement facility in respect of the practicum experience. The panel notes that one of the student's counsel's positions was the student was not party to the Practicum Agreement, and therefore, not bound by it. In the panel's view, this argument appears to be contrary to the agreed Statement of Facts which states that the student commenced a student practicum at the placement facility pursuant to a Practicum Agreement entered into between the educational institute and the placement facility. While it may be correct that the student was not a signatory to the Practicum Agreement or a party to the negotiation of the terms contained within it, it appears to the panel that the parties to the appeal had formally agreed that her practicum placement was pursuant to a Practicum Agreement. As a consequence, it is difficult for the panel to find that although there is agreement that the student was placed into her practicum in accordance with the Practicum Agreement, she was not bound by the terms of that agreement. 

• The student was not engaged in personal activities outside the control of the placement facility (or the educational institute) at the time of the injury. 

• The student was performing job duties at the time of the injury that were within the scope of her assigned responsibilities.

While it was clear that the student was not an employee of the placement facility, the panel finds that she was engaged in activities that were consistent with the nature, conditions and/or obligations of employment and that her injury was caused by a hazard that resulted from that activity.

This position is consistent with WCB Policy 44.05 which 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 panel finds that the nature of the occupation -- working with children and youth with troubled lives or behaviours in an institutional setting -- strongly suggests that confrontational, aggressive or violent behaviours can be reasonably anticipated in the workplace and the placement setting. In this regard, the panel notes a significant number of courses in the program syllabus that clearly anticipate these potential hazards including Non-Violent Crisis Intervention, Youth Criminal Justice Issues, Issues for Youths at Risk, The Impact of Maltreatment and Trauma, Emotional and Behaviour Theory and Intervention.

With respect to the student's counsel's argument that the matter that is the cause of the action is not an accident but a "crime" committed upon the respondent and as such, would not fall within the normal meaning of a hazard of the industry, the panel does not agree. Unfortunately, there are often situations when covered workers are injured at work as the result of some action by others that could be determined as being criminal, and although that might not be a "normal" cause for a workplace injury, that does not mean, in itself, that the resulting injury is not a "hazard of the industry" if it occurred while the individual was working. Additionally, the student's counsel's argument would be inconsistent with the definition of an accident which includes:

(a) a wilful and intentional act that is not the act of the worker,

In the panel's view, willful and intentional acts have always been interpreted broadly, again consistent with the intent of the Act, and this includes criminal acts. The panel finds that, based on the foregoing, this criteria has been met.

Question 3 - Is the defendant an employer within the meaning of the Act?

All parties have agreed in the Agreed Statement of Facts that both the educational institute and placement facility were employers registered with WCB. This was also confirmed through the evidence submitted at the hearing.

The panel accepts that both defendants were employers within the meaning of the Act and therefore the panel finds that this criteria has been met.

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

There is no dispute that the student was injured as a result of an assault that took place while participating in a practicum which was a course requirement of the educational institute, at the placement facility.

The assailants were clients of the placement facility and the worker's injuries occurred while the student was carrying out her responsibilities as a result of the practicum placement. The panel finds that the assault was a direct result of the student's practicum placement. In other words, if the student had not been involved in a practicum at that facility she would not have been injured on May 29, 2016.

As such, the panel finds that this criteria has also been met.

With respect to how the specific subsections apply to this matter, the panel makes the following comments:

Subsection 9(1)

It is the panel's position that subsection 9(1) gives workers the right to file action against a third party other than the employer. In this instance, the student had the right to take action against one or both of the student's assailants. In response to the placement facility's counsel's submission to the panel stating the same, counsel for the student submitted that the two assailants were juvenile offenders, who were criminally sentenced and incarcerated, and without resources. Therefore to bring action against them would be both "…fallacious and heartless" and that "Any such action is a colossal waste of time and resources."

The panel takes no position as to the merits of pursuing action against the assailants other than to recognize that the Act does allow for such an option. However, it is not the only option available to a covered worker injured at work as a result of the actions of a third party who is not a covered employer or covered worker; the Act still allows that same injured worker the ability to file for coverage under WCB. Therefore providing the injured worker protection under the Act even in the cases where there may be an issue of third party liability but no realistic chance of achieving a practical and/or reasonable result through an action. This is keeping with the very intent of the Act to provide injured workers with coverage regardless of whom was at fault. The panel notes that this interpretation is consistent with the position taken by the Supreme Court of Canada in Pasiechnyk.

The panel accepts that the request by WCB to complete the third party election form was consistent with the stated rights under subsection 9(1) of the Act where the student could elect to take action against her assailants. Such a request was not, as the student's counsel had asserted, a representation by WCB that the student could take action against the educational institute and/or the placement facility as opposed to applying for WCB coverage. In the panel's view, the educational institute and the placement facility are "second parties." To interpret this otherwise would defeat the intent of the Act which is to protect covered employers from action.

Subsection 9(7) 

Subsection 9(7) of the Act prohibits a worker (or the worker's employer) from taking action against an employer in an industry or against a worker of such an employer where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

Given the panel's response to question 4 above, it is the panel's finding that the student would be prohibited under section 9(7) from taking action against either the educational institute or the placement facility as they are both an "employer of an industry" under the Act and further that the accident happened "…within the conduct of the operations usual in, or incidental to, the industry carried out by the employer."

The student was enrolled at the educational institute which is that institute's industry-providing educational programming and, in this case, more specifically, training through practicum placements. As well, the student was placed for her practicum in a residential care facility, at which she was assaulted by clients of that facility.

With respect to the student's counsel's argument that various documents provided to the student by the placement facility supported that the student was not entitled to and was not provided WCB coverage, the panel does not accept those assertions to be relevant to the matter. The panel instead relies on the legislation and the intent to the relevant sections of the Act. Even if an employer did make such representations to a worker that they were not entitled to WCB, it is the criteria that is set in the legislation that determines eligibility, and employers cannot contract out of the legislation.

Subsection 13(1)

As the right to compensation under the Act is in lieu of the right to action against the employer, the student is also restricted from taking action against her 'employer' (in this instance that being the educational institute). The bar to action is not predicated upon a worker actually applying for WCB coverage but it instead is predicated upon a worker having the right to apply for coverage. As stated previously, the panel finds that the facts, as presented in this matter, confirm that the student met the criteria of being a learner under the Act and therefore falls within the definition of worker. The student is entitled to apply for coverage under WCB.

Subsection 77(1)

With respect to the student's counsel's submission that the panel ought to use its discretion under subsection 77(1) of the Act, it is the panel's determination that subsection 77(1) does not apply in this instance as the panel has determined the student is deemed to be a worker under the Act under the definition of learner. Subsection 77(1) only applies when an individual or group of individuals are engaged in a work experience program and have not otherwise been determined to be workers under the Act.

WCB Policy 22.80

Counsel for the student also requested that the panel consider providing financial compensation for the student's legal fees should the panel find in favor of the student as per WCB Policy 22.80.

This policy states, in part:

The workers compensation system is structured on the enquiry model and claims rarely involve litigation. The enquiry model allows workers or employers to make their case without the involvement of a lawyer. Advocates are allowed to assist in the presentation of cases, but the WCB does not pay costs associated with their involvement. Workers may be assisted by the Office of the Worker Advisor, whose costs are paid by the WCB, but other advocates of any kind are not paid.

The WCB has exclusive jurisdiction in the determination of matters arising from The Workers Compensation Act and does not encourage the use of the courts as an additional level of appeal.

The panel hereby denies this request for financial compensation as the panel is not granting the student the right to take action against the applicants. Further, the policy does not grant the Appeal Commission the power to order or pay costs.

Based on all the information provided and considering the relevant sections of the Act, the panel finds that the action launched by the student against the educational institute and placement facility is removed and forever barred.

Panel Members

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

Recording Secretary, J. Lee

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of July, 2018