The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

This is an application under s 60(5) of The Workers Compensation Act (“the Act”). The applicants are seeking an order that the right of action against them is removed by the operation of the Act.

Issue

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

Decision

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

Background

On January 3, 2018, the respondent submitted a Worker Incident Report to the WCB reporting a psychological injury that occurred at work, noting an accident date of October 16, 2013. The respondent advised they were unable to provide an exact date when the incidents began and described sexual harassment by a coworker, reported to the applicant employer (hereafter, the “applicant”) in May 2014. In discussion with the WCB on January 10, 2018, the respondent offered further details and advised that they made a formal complaint to the applicant about the coworker. The respondent noted that although the coworker left that employment in 2014, the worker continued to experience anxiety and panic attacks through to August 13, 2017 when they stopped working due to their symptoms. The Employer’s Incident Report to the WCB provided by the applicant on January 12, 2018 indicated the worker’s report of being sexually harassed by a coworker at an event that took place outside of work and that the worker was on a leave of absence since August 13, 2017 due to an unrelated injury that occurred outside work. The respondent contacted the WCB on January 22, 2018 to advise they did not wish to proceed with the claim and requested that it be closed, and the WCB provided a claim closure letter on the same date.

On or about August 11, 2022, the respondent filed a Statement of Claim against the applicant claiming damages for sexual assault and sexual harassment by coworkers. On January 9, 2024, counsel for the applicant applied to the Appeal Commission for a ruling under s 60(5) to determine whether the respondent’s right of action is removed pursuant to the provisions of the Act. A pre-hearing meeting took place on May 29, 2024 and the hearing took place on February 26, 2025 to consider the application.

Reasons

Applicable Legislation and Policy

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 Act provides in s 4 that in any industry within the scope of the legislation, compensation is payable by the WCB for personal injury to a worker caused by an accident arising out of and in the course of employment.

Section 13(1) of the Act provides that the right to compensation under the Act is “…in lieu of all rights and rights of action, statutory or otherwise, to which a worker…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…arising out of, and in the course of, [their] employment” and confirms that no action in any court of law lies against the employer in respect of such an injury or death.

The following definitions set out in s 1(1) of the Act are also relevant to this application:

"accident" … includes… 

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

… 

that results in personal injury to a worker…

"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... 

“industry” means all industries in Manitoba except those industries excluded by regulation under section 2.1

"worker" includes 

(a) a person…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

The Appeal Commission’s authority to consider this application is outlined in s 60.8(1)(b) of the Act, and s 60(5) of the Act, as follows:

Board to determine right of action 

60(5) 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.

The WCB has established Policy 44.05.30, Adjudication of Psychological Injuries, which outlines how the WCB adjudicates claims for psychological injuries. The Administrative Guidelines to that Policy confirm that harassment claims are considered under the definition of accident as being “a wilful and intentional act that is not the act of the worker”.

Applicant’s Position

The applicant was represented in the hearing by legal counsel who submitted an Agreed Statement of Facts on behalf of the parties on September 25, 2024 and in the hearing, relied upon a Brief outlining their position, which was filed with the Appeal Commission on February 11, 2025.

The applicant relied on the provisions set out in s 4(1) and s 13(1) of the Act, which establish that a worker cannot sue their employer in connection with a matter that triggers a right to compensation under the Act. The applicant submitted that the panel must determine if the allegations set out in the Statement of Claim would, if proven, be a matter within the scope of the Act, but in making that determination, the panel is not required to adjudicate or make any findings of fact on any of the matters in question. The applicant further submitted that the test the panel must apply in determining whether the right of action should be removed is as set out in prior Appeal Commission decisions 96/01 and 99/21, namely:

1. Is the respondent a worker within the meaning of the Act? 

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

3. Is the applicant 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 carried on by the applicant?

The applicant submitted that the answer to each of these questions is affirmative, and as such, any right of action of the respondent as against the applicant in relation to the alleged personal injury occasioned by an accident arising out of and in the course of employment is removed by the operation of s 13(1) of the Act.

Respondent’s Position

The respondent was represented by legal counsel in the hearing. Counsel did not take any position in relation to the question for consideration by the panel but noted that the statutory provision removing the right of action effectively permits an employer to allow or cause injury to a worker without recourse. Counsel urged the panel to consider the public policy implications of this provision where, as alleged here, the applicant employer failed to adequately respond to the respondent’s concerns and failed to protect them from egregious sexual harassment in the course of their employment.

Analysis

The applicants seek an order pursuant to s 60(5) of the Act that the respondent’s right of action against the applicants is removed by the Act. For this application to succeed, the panel would have to determine that the allegations contained in the respondent’s Statement of Claim against the applicants would, if proven, be a matter within the provisions of the Act and as such, that the claim is barred. As detailed in the reasons that follow, the panel was able to make such a determination and therefore the application is granted.

The panel noted the principles of workers compensation programs, as outlined in the Act, is often described as a “historic trade-off” between workers and employers by which workers compensation legislation provides for no-fault benefits to injured workers and their dependants, paid out of the pooled contributions of all covered employers in exchange of providing employers immunity from lawsuits arising out of covered workplace injuries or death. In implementing this trade-off, the Act contains provisions that address the right of action against employers. Section 60(5) authorizes the WCB to 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.” Section 13(1) provides 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.

As outlined in the applicant’s brief, the Appeal Commission in its decision #99/21 considered the following questions in determining an application to determine if a right of action is removed by the Act:

1. Is the respondent 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?

The applicant submits these are the questions the panel should consider in determining this application and the panel agrees that this is the appropriate approach in this case.

The panel therefore considered, firstly, whether the respondent is a worker as defined in the Act. As detailed in the Statement of Claim and confirmed by the parties in their Agreed Statement of Facts, the respondent has been an employee of the applicant firm since 2004. Further, the panel noted, in the Employer’s Incident Report provided to the WCB on January 12, 2018, the applicant firm indicated the respondent was employed with the firm since July 7, 2004. The panel accepts and relies on this evidence to find that the respondent is a worker as defined in the Act.

The panel next considered whether the respondent, or worker, sustained injury arising out of and in the course of their employment. The panel noted the Worker Incident Report provided by the respondent to the WCB on January 3, 2018 sets out that as a result of sexual harassment by a coworker beginning in 2013, which the respondent states they reported to the employer in 2014, the respondent developed a psychological condition resulting in leaving work on sick leave beginning in August 2017. The panel also reviewed the allegations outlined in the Statement of Claim of August 11, 2022 and in the Particulars of November 1, 2022, which describe the nature of the harassment of the respondent by their coworker and other employees. We further noted that the parties, in their Agreed Statement of Facts set out that “…if the incidents and injuries did occur as alleged in the Claim and Particulars, each is an “accident”…causing personal injury to [the Respondent], and each arose of out and in the course of [their] employment….”

The Act includes in the definition of accident “a wilful and intentional act that is not the act of the worker.” The WCB’s Psychological Injury Policy confirms that harassment resulting in a psychological injury may fall within the definition of accident. Both the Statement of Claim and Worker Incident Report outline incidents of harassment that the respondent alleges occurred at work and in the course of their employment. The panel is satisfied that these allegations, if proven, would establish that an accident occurred arising out of and in the course of employment, resulting in injury to the respondent.

The panel also considered whether the defendant in this claim is an employer, as defined in the Act. We note that the Agreed Statement of Facts confirms that the defendant firm employed the respondent, and the parties have agreed that the defendant is an employer under the provisions of the Act. Further, we note that the WCB’s letter of March 8, 2024 confirms that the defendant firm was operating in a mandatory industry sector and as such was required to have workers compensation coverage during the period between January 2013 and July 2017 when these incidents are alleged to have occurred, and that the defendant firm had such coverage. As such, the panel is satisfied that the defendant is an employer in an industry as defined in the Act.

Finally, the panel considered whether the incident happened within the conduct of the operations that are usual or incidental to the industry carried on by the defendant firm. The defendant submitted that this is the case and pointed out that the Agreed Statement of Facts sets out that at all times since 2004, the defendant firm was an employer in an industry as defined in the Act. Furthermore, the parties agreed that the respondent’s allegations indicate that the incidents arose out of and in the course of the respondent’s employment in that industry. There being no evidence to the contrary, the panel is satisfied that the incidents, if established to have occurred, occurred within the conduct of operation usual in, or incidental to the industry carried on by the applicant.

Based on the answers to these questions, the panel finds that the defendant employer is immune from suit as an employer with active WCB coverage carrying on activities in their industry at the time the incidents are alleged to have occurred. Section 13(1) of the Act 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.

Based on the evidence and arguments, and applying the standard of a balance of probabilities, we determine that the respondent’s right of action is removed pursuant to the provisions of the Act.

Panel Members

K. Dyck, Presiding Officer
J. Peterson, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, J. Lee

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

Signed at Winnipeg this 7th day of March, 2025