The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an application under section 68(4) of The Workers Compensation Act ("the Act"). The applicants are seeking an order that the right action against them is removed by the Act.

Issue

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

Decision

That the right of action against the applicants is removed pursuant to the provisions of the Act.

Background

This application arises from a workplace accident in which a worker died, that occurred on January 17, 2018 in the Province of Manitoba.

The plaintiff in the action and respondent in this application is the mother of the deceased worker who commenced legal action by Statement of Claim filed in the Manitoba Court of Queen’s Bench, naming the three applicants, specifically the worker’s employer, the third party transport company and the third party utility company as defendants in the action. The Statement of Claim was filed in the Court of Queen's Bench on or about January 15, 2020, against the employer and the third parties. The employer filed a Statement of Defence on February 4, 2020. The third parties filed their Statements of Defence on February 10, 2020 and February 11, 2020.

The employer and the third parties (the “applicants”) have applied to the Appeal Commission under s 68(4) of the Act for an order that the legal action against them filed by the respondent be removed and forever stayed. The employer’s application was made on April 3, 2020, and the third parties made their applications to the Appeal Commission on April 7, 2020 and April 15, 2020. Each applicant provided notice of the application to the respondent by mail. The Appeal Commission notified the respondent by mail of the applications, with further notice provided by email, and further notified the respondent of the dates set for the pre-hearing meeting and hearing.

The Appeal Commission held a pre-hearing meeting on March 4, 2021 attended by counsel for the applicants to discuss the issues for determination, the nature of the material to be filed and the procedure to be followed at the hearing. The respondent, though duly notified of the pre-hearing meeting, did not attend.

A videoconference hearing was held on June 21, 2021 to determine the question on application with all applicants in attendance, but the respondent did not appear or participate although duly notified of the date and time of the proceeding. Following the hearing, the appeal panel requested additional information prior to discussing the case further. The requested information was received and was forwarded to the interested parties for comment. On June 22, 2021, the appeal panel met further to discuss the case and render its final decision on the issue under appeal.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the provisions of The Workers Compensation Act (the "Act"), regulations under that Act and the policies established by the WCB's Board of Directors.

The preamble to the Act sets out that:

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;

For the purposes of this application, the relevant provisions of the Act are set out below:

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; 

... 

"dependants" means those members of the family of a worker who were wholly or partly dependent upon his earnings at the time of his death or who, but for the incapacity due to the accident of the worker would have been so dependent, but a person shall be deemed not to be partially dependent upon the earnings of another person unless he was dependent partially on contributions from that other person for the provision of the ordinary necessaries of life; 

... 

"employer" includes 

(a) a person 

(i) who has in service under a contract for hiring or apprenticeship, written or oral, expressed or implied, a person engaged in work in or about an industry... ... 

"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

Compensation payable out of accident fund

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

Right of action against person other than employer

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

Limitation of right of action

9(7) In any case within subsection (1), the worker, his or her legal personal representative and dependants, and the employer of the worker have no right of action in respect of the accident against an employer in an industry, against a worker of such an employer or against a director of a corporation that is such an employer, where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.

Board to decide all claims

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

Compensation to be in lieu of other rights

13(1) The right to compensation provided by this Part is in lieu of all rights and rights of action, statutory or otherwise, to which a worker, or his legal personal representative, or his dependants, are or may be entitled against the employer 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.

Jurisdiction of appeal commission

60.8(1) Subject to section 60.9, the appeal commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Part in respect of 

(a) appeals under subsection 60.1(5); 

(b) determinations under subsection 68(4); 

(b.1) appeals of administrative penalties under section 109.7; 

(c) any matter referred to it by the Board of Directors.

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.

Applicants’ Position

The applicants jointly submitted an Agreed Statement of Facts dated May 31, 2021 in advance of the hearing and relied upon those facts in making their submissions. The Agreed Statement of Facts, in summary, outlines the facts agreed to by all the applicants, including the following: 

• The applicant employer is incorporated in Saskatchewan and registered to do business in Manitoba, carrying on business as a construction company. 

• The applicant utility is a statutory corporation in Manitoba carrying on business as a utility provider. 

• The applicant transport company is incorporated in Alberta and carries on business as a transportation company. 

• The respondent is the mother of the deceased worker. 

• The spouse of the worker received compensation from the WCB as the worker’s sole dependent. 

• Letters of administration for the worker’s estate were granted to an individual named in the Statement of Claim as one of the additional family members of the deceased. 

• Another family member named in the Statement of Claim is of unknown relationship to the deceased. 

• The respondent filed a Statement of Claim against the applicants on January 15, 2020 alleging that the worker died as a result of injuries sustained on January 17, 2018 in an accident while working for the applicant employer at a location operated by the applicant utility. In the claim, the respondent seeks various relief on behalf of family members of the worker and admits that the worker’s spouse has received compensation under the Act in relation to the worker’s death. 

• The applicants each filed a Statement of Defence in response to the Statement of Claim in which they pleaded that the respondent’s claim is barred in entirety by the provisions of the Act. 

• At all material times, the deceased was employed by the applicant employer and was a “worker” as defined by ss 1(1) and 4(1) of the Act, and each applicant was an “employer” in an industry within the meaning of s 1(1) of the Act and held active coverage with the WCB. 

• On July 28, 2017 the applicant employer entered into agreement with the applicant utility for a construction project. That agreement provided that certain materials for the project were provided by the applicant utility and were to be obtained from the applicant utility’s storage site where the accident ultimately occurred. 

• The applicant employer entered into agreement with the applicant transport company to transport materials from the storage site to the construction site. 

.• The deceased worker began working for the applicant employer on a seasonal basis in 2015 and in 2018 began working on the specific project subject of the agreement with the applicant utility on January 5, 2018 as evidenced by the worker’s orientation checklist and timesheets. 

• On January 17, 2018, the applicant employer tasked the worker with picking up materials at the applicant utility’s storage site and did so. The accident took place after the worker completed loading their materials and went to assist an employee of the applicant transport company with securing their load. When part of that load came dislodged, it struck the worker injuring them. The worker was taken by ambulance to the hospital where he later died. 

• The accident was reported to the regulatory body and investigated by Workplace Safety and Health (Manitoba) who issued an order to the respondent employer in response.

The applicant employer also submitted a Brief of Argument in advance of the hearing and made an oral submission in the course of the hearing. Two witnesses appeared on behalf of the employer, a senior officer of corporate services and a senior officer of operations, and each provided testimony in response to questions posed by members of the appeal panel.

The applicant third parties each also submitted a Brief of Argument in advance of the hearing, adopting the arguments made by the applicant employer in their Brief of Argument. Each third party made a brief oral submission in the course of the hearing, and each third party presented a witness on their behalf, but the panel did not require those witnesses to provide any testimony.

In its submission, the applicant employer set out the statutory basis for the application and noted that the Act:

“...establishes a social contract of insurance whereby workers have relinquished their right, and the right of their legal representatives and dependants, to sue in exchange for reasonable compensation regardless of fault and on the other side of the equation, whereby employers have received immunity from suit in exchange for their funding the costs of this scheme.”

Counsel for the employer noted this “historic trade-off” is recognized in the preamble to the Act, which provides for compensation to workers in s 4(1) and that this entitlement is in lieu of other rights, as set out in ss 12 and 13(1). Further, the Act, in s 9(7) provides for immunity from suit against employers where an accident happens within the conduct of operations usual in or incidental to the industry carried on the by employer. The historical and continuing importance of this trade-off was recognized by the Supreme Court of Canada in Pasiechnyk v Saskatchewan (Workers’ Compensation Board) [1997] 2 S.C.R. 890 (“Pasiechynk”). The Supreme Court in Pasiechynk found that:

“The bar to actions against employers is central to the workers’ compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker’s obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.” [para 26]

Further, the Court outlined the four fundamental principles of the scheme, being: 1) compensation of injured workers without consideration of fault; 2) security of payment; 3) independent administration and adjudication of claims; and 4) compensation provided quickly without court action. These principles are interconnected and integral to the scheme.

The applicant employer also pointed the panel to consider two prior decisions of the Appeal Commission. In Decision No 151/04, the appeal panel found that even though the family members of the deceased worker did not receive any compensation under the Act, their right to bring action was still removed consistent with the intention of the legislation. The panel stated, “...if civil actions were permitted against employers by non-dependants of a worker, every fatality claim would potentially lead to a claim against an employer – something which would be contrary to the intention of the workers compensation scheme – being to keep workplace injuries out of the tort system in favour of a no-fault compensation scheme.” In Appeal Commission Decision No 173/17, the panel found that s 9(7) is not limited to employers within the same industry as the worker’s employer.

The applicant employer submitted that the test the panel must apply in determining whether the action should be stayed is as set out in Pasiechnyk, and in the Appeal Commission decisions noted above; namely:

1. Is the plaintiff a worker, within the meaning of the Act; 

2. Did the worker suffer personal injury arising out of and in the course of their employment; 

3. Is the defendant an employer within the meaning of the Act; and 

4. Did the incident happen within the conduct of the operations usual in, or incidental to, the industry carries on by the employer?

The applicant employer stated that in this case the evidence confirms the deceased was a worker as defined by the Act, employed seasonally by the employer since 2015 and working on the specific project in which the accident occurred since January 5, 2018. At the time of the accident, the deceased worker was completing a task within the course of their employment. The timecards submitted as part of the Agreed Statement of Facts provide confirmation that the worker was engaged in the same task on a previous day.

The applicant employer further submitted that it is an employer within the meaning of s 1(1) of the Act, carrying on business in the construction industry, which is a covered industry under the Act, and therefore falls within the mandatory coverage provisions of the Act. This is likewise the case for the third party applicants, each of whom carry on business in an industry that is covered under the provisions of the Act. The applicant employer states that at the time of the accident, the employer was engaged in its usual operations, carrying on its business as specifically set out in a contract with the third party utility.

On the basis of these facts, the applicant employer submitted that the Act applies so that the deceased worker and their dependants are entitled to compensation under the Act. The applicant employer noted the evidence confirms the WCB agreed and as a result, paid out compensation to the deceased worker’s dependant. The right to bring a claim against the employer is therefore removed by operation of s 13(1) of the Act.

The applicant employer also argued that the accident occurred during the conduct of operations usual in or incidental to the industries carried on by the third party applicants. The evidence confirms that the applicant transport company had entered into a contract with the applicant employer to deliver product of the applicant utility company from the site where the accident occurred to another site. This activity was usual in the industries of the third party applicants and as such, the right of action is also removed as against the third party applicants pursuant to s 9(7) of the Act.

Further, the applicant employer argued that the evidence confirms respondent is not a dependant of the deceased worker and did not receive compensation under the provisions of the Act, but that their right to bring an action is also removed consistent with the decision of the Appeal Commission in Decision No. 151/04.

The applicant employer also submitted that the provisions of the Act that remove the right to bring claims against employers in any industry are not limited to monetary claims but also include the further claims set out in the respondent’s Statement of Claim, including provision of records, proof of change of procedure and an apology. This is confirmed, the applicant employer states, by a plain reading of s 13(1) of the Act which provides that the right of compensation is “...in lieu of all rights and rights of action, statutory or otherwise....and no action in any court of law against the employer in respect thereof thereafter lies.” Section 9(7) is also broadly framed to bar all rights of action, regardless of the remedy sought. The applicant employer argued that “...what matters is not the type of remedy sought, but whether the actions arise out of the accident.” In this case, each of the claims set out in the Statement of Claim arise from the accident and without the accident none of those claims would exist.

The third party applicants each adopted the oral arguments made by the applicant employer. The third party transport company made a brief oral submission describing a possible litigation scenario if there were no legislated workers’ compensation scheme in place, noting the possibility that the process would have taken many years to litigate with a variety of claims and cross claims and defenses raised that would have been “a nightmare and a continuation of a catastrophe” for the worker’s family, both expensive and without any guaranteed outcome. Counsel for the third party transport company noted that as a result of the historic tradeoff, covered industries pay significant premiums to support the legislative scheme that offers no-fault coverage to workers injured in the course of their employment. In exchange, when a worker dies in the workplace, performing duties they were to perform, engaged in an industry that was covered, fault is not considered in determining whether there is entitlement to compensation. The respondent’s claim in this case, counsel argued, is “exactly the sort of thing that this legislation was intended to prevent, prohibit and avoid.”

Respondent’s Position

The respondent did not participate in the hearing, but the respondent’s Statement of Claim filed January 15, 2020 in the Court of Queen’s Bench sets out the basis of the respondent’s claim and is relevant to these proceedings. In the Claim, the respondent states that the deceased worker died on January 17, 2018 as a result of a workplace accident that occurred on premises in Manitoba operated by the applicant utility company. At the time of the accident, the deceased worker was at work for the applicant employer and assisting with the loading of a vehicle owned and operated by the applicant transport company. The claim goes on to note that the spouse of the deceased worker received compensation from the WCB, and that the respondent believes they are entitled to bring suit against the applicants as they are not covered by the limitation provisions of the Act which prevent the worker, their personal legal representative and dependents from bringing legal action.

The respondent, in the Statement of Claim requests relief summarized as follows: 

a) that the applicants provide copy of reports made to Workplace Health and Safety with respect to the accident; 

b) that the applicants provide evidence in writing of changes in procedure with respect to safety standards; 

c) that the applicants provide a full written apology to the respondent and their family; and 

d) that the applicants provide financial compensation plus costs to the respondent and two other named family members.

Analysis

The applicants are seeking an order pursuant to s 68(4) of the Act that the respondent’s right of action against the applicants has been removed by the Act. For the application to succeed, the panel would have to determine that the allegations contained in the respondent’s claim against the applicants would, if proven, be a matter within the provisions of The Workers Compensation Act and as such, the respondent’s claim is barred. As outlined in the reasons that follow, the panel was able to make such a determination.

The provisions of the Act recognize and implement the historic principles of workers compensation. As outlined in the preamble to the Act, those principles include: collective liability of employers for workplace injuries and diseases; provision of compensation for injured workers and their dependants, regardless of fault; income replacement benefits based upon loss of earning capacity; immunity of employers and workers from civil suits; prevention of workplace injuries and diseases; timely and safe return to health and work; and independent administration by an arm's-length agency of government. Frequently described as an “historic trade-off” between workers and employers, this legislation provides no fault benefits to workers and their dependants, while offering employers immunity from lawsuits arising out of covered workplace injuries or death. The Act applies to workers in covered industries and their dependants, as well as to employers in those industries, as defined in s 1(1).

The significance of this legislative scheme in providing a mechanism for compensation to injured workers without regard to fault and protection to employers from civil suit arising out of workplace accidents was recognized by the Supreme Court of Canada in Pasiechynk. The Court in that case considered whether a suit by the dependants of a deceased construction worker, employed at a Saskatchewan Power Corporation work site, against the Government of Saskatchewan as regulator of the utility could be maintained under the provisions of The Workers’ Compensation Act (Saskatchewan). The Court commented on the history and purpose of workers compensation legislation, noting that such schemes are based on the following fundamental principles: 

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

(b) injured workers should enjoy security of payment; 

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

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

The Court noted that “The bar to actions against employers is central to the workers’ compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker’s obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.” Further, this bar to court action was described by the Court as central to the trade-off, not ancillary to it.

The Act contains a number of provisions that address the right of action against employers. Section 68(4) provides authority to the WCB to adjudicate and determine whether a right of action is removed by the Act, and where the board makes such a determination, the action “shall be forever stayed.” The Act sets out in s 12 that there is no right of action for recovery of compensation under Part I of the Act and that all such claims are to be considered and determined by the WCB. Section 13(1) goes on to state that the right of compensation under Part I of the Act is “...in lieu of all rights and rights of action” whether under the statute or otherwise, to which a worker, their legal representative or dependents are or may be entitled to arising out of personal injury to or death of the worker due to an accident arising out of and in the course of their employment. Where an accident happens to a worker in the course of their employment under circumstances that would entitle them or their dependants to an action against some person other than their employer, s 9(7) provides that there is no right of action against an employer in an industry where the accident happens “within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.”

The Supreme Court in Pasiechynk summarized the application of similar provisions under the Saskatchewan legislation as requiring consideration of “...whether the plaintiff is eligible for compensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers’ compensation system.”

The Appeal Commission has previously applied the reasoning of the Court in Pasiechynk in Decision 151/04 in which a statement of claim was filed on behalf of a deceased worker’s family members. The family members were not dependents as defined in s 1(1) of the Act; nonetheless, the Appeal Commission determined that even though the family members did not receive any compensation under the Act, the right of family members to bring the claim was still removed due to the intention of the legislation. The appeal panel determined that no right of action will lie against the employer of the deceased for a claim arising from the accident regardless of whether the party bringing the action received compensation themselves. The panel stated that “...if civil actions were permitted against employers by non-dependents of a worker, every fatality claim would potentially lead to a claim against the employer – something which would be contrary to the intention of the workers compensation scheme – being to keep workplace injuries out of the tort system in favour of a no-fault compensation scheme.”

In Appeal Commission Decision 173/17, the Appeal Commission considered a claim by the estate of a deceased worker against the worker’s employer and the Province of Manitoba. In that case, the panel determined that s 9(7) removes the right of action against all employers who are providing services in an industry where the accident happens within the conduct of the operations usual in, or incidental to, the industry carried on by the employer. In making its determination, the appeal panel considered the following questions:

1. Is the plaintiff a worker, within the meaning of the Act? 

2. Did the worker suffer personal injury arising out of and in the course of their employment? 

3. Is the defendant an employer within the meaning of the Act? 

4. Did the incident happen within the conduct of the operations usual in, or incidental to, the industry carried on by the employer?

Applying the reasoning of the Supreme Court in Pasiechynk and the previous Appeal Commissions decisions in Decision 173/17 and Decision 151/04, the applicants argue that these same questions must be considered in this case in determining whether or not the respondent’s action should be stayed. The panel agrees that this is the appropriate approach in this case.

The panel first considered whether the deceased was a worker within the meaning of the Act. The evidence of the witnesses for the applicant employer provided in the hearing was that at the time of the accident, the deceased was an employee of the applicant employer. Subsequent to the hearing the panel requested and obtained from the applicant employer offer of employment documents confirming the hiring of the deceased by the applicant employer and the terms of that employment. The panel also noted the respondent’s allegation within the statement of claim that the deceased was employed by and working for the applicant employer at the time of the accident. The WCB also found that the deceased was a worker within the definition set out in the Act. On the basis of the evidence, the panel finds that the deceased was a worker as defined by the Act as a “person...who enters into or works under a contract of service”.

The next question for determination is whether the worker’s injury and death arose out of and in the course of their employment. The panel again considered the contents of the Agreed Statement of Facts, noting that the applicant employer submitted copies of the worker’s timecards as proof the worker was doing the same task on a previous day as they were engaged in at the time of the accident. The Agreed Statement of Facts further sets out that on the date of the accident, the worker was tasked with picking up materials at the storage site and did so. The accident took place when the worker was assisting a worker of the applicant transport company with securing their load and part of that load came loose, striking the worker and injuring them. The worker died the same day as a result of that injury. This is consistent with the allegation of the respondent contained in the Statement of Claim and the determination of the WCB, as evidenced by the WCB claim file documents. On the basis of the evidence, the panel determines that the worker’s death did arise out of and in the course of their employment.

The third question for determination is whether the named defendants are employers within the meaning of the Act. The applicants each agree, as set out in the Agreed Statement of Facts that they are each an employer in an industry covered by the Act, with current WCB coverage. The WCB has likewise confirmed that each of the named defendants are employers in industries covered by the Act. On the basis of the evidence before us, the panel finds that the defendants (and applicants in this application) are employers as defined in the Act.

Fourth, the panel considered whether the accident occurred within the conduct of the operations usual in, or incidental to, the industry carried on by the employer. The applicants set out in the Agreed Statement of Facts that at the time of the accident, the applicant employer was engaged in the construction industry providing services to the applicant utility within the provisions of their contractual agreement, and further, that the applicant transport company was likewise engaged in providing transportation services to the applicant employer within the provisions of their agreement. Further, the applicants agree that the accident took place at a storage facility of the applicant utility where the worker was required to be under the terms of their employment with the applicant employer. These facts align with the general allegations contained within the Statement of Claim relating to the actions of the applicants. In the absence of any evidence before the panel to suggest the applicants were not, at the time of the accident carrying on activities in the industries in which they are engaged, the panel finds that the accident occurred within the conduct of operation usual in, or incidental to the industry carried on by each of the applicants.

On the basis of the answers to these questions, the panel concludes that the deceased worker and their dependents are eligible for compensation under the Act. The evidence confirms the WCB came to the same conclusion and as a result provided compensation to the deceased worker’s sole dependent.

The applicants argue they are therefore immune from suit as employers with active WCB coverage carrying on activities in their respective industries at the time of the accident. Section 13(1) provides that the right of compensation under the Act is “...in lieu of all rights and rights of action” to which a worker, their legal representative or dependents are or may be entitled to arising out of personal injury to or death of the worker due to an accident arising out of and in the course of their employment. Further, when an accident occurs causing death or injury to a worker in the course of their employment under circumstances that would entitle them or their dependants to an action against some person other than their employer, s 9(7) provides that there is no right of action against any employer in an industry if the accident happens “within the conduct of the operations usual in, or incidental to, the industry carried on by the employer.”

The respondent’s Statement of Claim sets out the respondent’s position that these legislative bars to action explicitly do not apply to those who are not “dependents” within the provisions of the Act, noting the explicit wording of the Act barring action by a worker, their legal representative or dependents only. In other words, the respondent claims the Act permits anyone other than the worker, their legal representative or dependents to bring a claim against a 3rd party or the employer of an injured or deceased worker. The panel does not accept this position and adopts the reasoning of the Appeal Commission in Decision 151/04 that “...if civil actions were permitted against employers by non-dependants of a worker, every fatality claim would potentially lead to a claim against an employer – something which would be contrary to the intention of the workers compensation scheme – being to keep workplace injuries out of the tort system in favour of a no-fault compensation scheme.” We find that the respondent’s position would lead to a result that is inconsistent with the intention of the legislative drafters as expressed in the Preamble to the Act and as argued by the applicant transport company, would lead to a result that is “...exactly the sort of thing that this legislation was intended to prevent, prohibit and avoid.”

The panel also noted that the respondent’s Statement of Claim includes a variety of claims for relief in addition to financial compensation. The applicant employer submitted that a plain reading of the Act, and in particular, s 9(7) and s 13(1) reveals the intention of the drafters that the provisions of the Act preclude claims of any and every sort relating to and arising out of a covered accident and that these statutory bars to action are not limited only to monetary claims against employers but also include the further claims set out in the respondent’s Statement of Claim for provision of records, proof of change of procedure and an apology. The panel finds that each of the respondent’s specific claims for relief as set out in the Statement of Claim arose out of and relates solely to the workplace accident of January 17, 2018 that resulted in the death of the worker and we agree that the wording of the statutory provisions of s 9(7) and s 13(1) is sufficiently broad to include all the claims for relief made by the respondent in the Statement of Claim.

The panel therefore concludes, for the reasons noted above, that the right of action is removed pursuant to the provisions of the Act.

Panel Members

K. Dyck, Presiding Officer
R. Hambley, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

K. Dyck - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 13th day of August, 2021