In a personal injury action, or an action brought pursuant to the Family Compensation Act, there may be an opportunity to dispose of the claim by initiating proceedings before the Workers’ Compensation Appeal Tribunal (“WCAT”). These proceedings are commonly referred to as “section 257 determinations” in reference to the relevant section of the Workers’ Compensation Act (“WCA”). Generally, a section 257 application seeks a determination of the following issues:
- Whether the plaintiff or deceased was a worker at the time that the cause of action arose;
- Whether the defendant was a worker or employer at the time that the cause of action arose; and
- Whether the injury or death arose out of and in the course of the worker’s employment.
WCAT is an administrative tribunal vested with the authority to make these determinations and to certify them to the court.
In most cases, the critical issue is whether the injury or death arose out of and in the course of the worker’s employment. Typically, there is little dispute as to whether the other criteria are met. However, the numerous WCAT decisions in relation to section 257 applications suggest that determining whether an injury or death arose out of and in the course of employment is often not a straightforward analysis. Complicating the picture is the fact that WCAT is not bound by legal precedent, and WCAT may reach different conclusions in factually similar cases. Yet the unpredictable outcome of a section 257 determination should not dissuade counsel or claims handlers from bringing these applications. The cost consequences may be minimal and much may be gained. If the requirements of s. 257 are met, the civil proceedings are often barred against some or all of the defendants/third parties.
In addition to providing an overview of the legislative framework, the first part of this paper analyses the key requirement of s. 257: that the injury or death arose out of and in the scope of the worker’s employment. The intent is to highlight some of the key factors that often feature in a successful application, and the type of evidence that should be gathered, particularly through witness interviews and Examinations for Discovery. The second part of the paper provides a brief overview of the procedure to be followed when applying for a s. 257 determination.
Part I: Section 257 Determinations
A. The Legislative Framework
As noted above, s. 257 gives WCAT the authority to certify a worker and employer’s status and to certify that the injury/death at issue arose out of and in the course of the worker’s employment. If WCAT determines these issues in the affirmative, s. 257 works together with s. 10 of the WCA to prohibit the action from continuing against a defendant that has the benefit of the certification.
Section 10(1) prevents an injured worker from suing an employer or co-worker for conduct in breach of a duty arising out of and in the course of employment, “in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies. This provision applies only when the action or conduct of the employer, the employer’s servant or agent, or the worker, which caused the breach of duty arose out of and in the course of employment within the scope of this Part.”
B. Elements of a Section 257 Determination
The starting point for an analysis of the prospect of success on a s. 257 determination is the Worksafe BC policy manuals. WCAT is not bound by precedent. While past WCAT decisions are useful, and should form part of submissions on a s. 257 application, the principles and policies that will weigh most heavily in WCAT’s decision are found in the Assessment Manual and the Rehabilitation Services & Claims Manual Volumes I and II (“RSCM I” and “RSCM II”, respectively). Assuming that the status of the parties is clear, most of the principles and policies relevant to a s. 257 determination are found in RSCM II.
i) Who is a “worker” and who (or what) is an “employer”?
While the crux of a s. 257 determination is usually whether or not the injury arose out of and in the course of employment, it is important, from the outset, to ensure that the plaintiff and the defendant seeking the benefit of a certification are likely to be considered, respectively, a “worker” and a “worker” or “employer”.
There are multiple sources for the definition of who constitutes a “worker.” Section 1 of the WCA defines “worker” as “a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise.” However, this is simply the basic definition, and the Assessment Manual emphasizes that whether there is an employment relationship must be determined on the facts of each case. Policy item #AP1-1-5 of the Assessment Manual sets out guidelines for determining who is a “worker”. It states, in part, that workers include individuals paid on an hourly, salaried or commission basis.
However, #AP-1-1-1 confirms that a worker cannot be an “independent firm” which are defined as those persons required to register with the Board as an employer, or those unincorporated or independent operators who have the option to register. An “an independent firm” may be an individual or a corporation. Thus, independent contractors are considered to be independent firms. A review of the provisions of the Assessment Manual is recommended if considering an application to determine the status of someone who performs work under a contract and has a independent business. It is also appropriate to determine if the individual purchased Personal Optional Protection and is thus deemed to be a worker.
The Assessment Manual discusses a number of other types of relationships and whether or not they are likely to lead to a finding that the injured/deceased person was a worker. For example, Policy item #AP1-1-4 of the Assessment Manual indicates that a director, shareholder or principal of a corporation is generally considered to be a worker under the WCA.
Section 1 of the WCA defines the term employer as “every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry.” Policy item #AP-1-1-1 of the Assessment Manual expands upon this definition by stating that “An employer is a person or entity employing workers. The employer may be a sole proprietor, a partner in a partnership, a corporation, or other type of legal entity.” An employer is an “independent firm.”
Accordingly, a party’s status as a “worker” or “employer” may be readily apparent from the nature of the employment relationship. However, when dealing with individuals who appear to have a considerable degree of autonomy in their role and/or individuals who employ others, a review of WCB legislation and policy should be the starting point before recommending and seeking a s. 257 determination.
ii) Did the injury or death arise out of and in the course of the worker’s employment?
This question is typically the most contentious aspect of a s. 257 application. The Rehabilitation Services and Claims Manual, Volume II (“RSCM II”) recognizes that “employment is a broader concept than work and includes more than just productive work activity. An injury or death that occurs outside a worker’s productive work activities may still arise out of and in the course of the worker’s employment.”
WCAT will consider whether the injury or death arose out of the worker’s employment. This requires WCAT to look at the cause of the injury or death. The RSCM II explains that the focus here is on “whether the worker’s employment was of causative significance in the occurrence of the injury or death.” It is acceptable for a number of factors, some related to the employment and others not, to have contributed to the event as long as the employment was “more than a trivial or insignificant aspect of the injury or death.”
Even if the injury or death occurred while the worker was doing something outside of their normal duties or was responding to an emergency situation, the fact that the worker’s actions were within the “reasonable expectations of employment” may suggest that it arose out of and in the course of the employment (RSCM II C3-17.00). The extent of the deviation from normal duties is also a factor.
The best point to start the analysis may be by determining if the injury or death occurred in the course of the worker’s employment. Importantly, s. 5(4) of the WCA establishes that if the accident occurred in the course of employment, it is presumed that it arose out of the employment unless the contrary is shown and vice versa. The RSCM II explains that this generally means whether the injury or death “happened at a time and place and ruing an activity consistent with, and reasonably incidental to, the obligations and expectations of the employment. Time and place are not strictly limited to the normal hours of work or the employer’s premises.”
The standard of proof as to whether an injury or death arose out of and in the course of employment is the balance of probabilities. The RSCM II provides a number of factors that WCAT can consider as evidence of whether the injury arose out of and in the course of employment. Medical evidence can be taken into consideration, but non-medical factors may also be relevant. The nine numbered factors in the RSCM II C3-14.00 are as follows:
- Did the injury or death occur on the employer’s premises?
- Did the injury or death occur while the worker was doing something for the benefit of the employer’s business?
- Did the injury or death occur in the course of action taken in response to instructions from the employer?
- Did the injury or death occur while the worker was using equipment or materials supplied by the employer?
- Did the injury or death occur while the worker was in the process of receiving payment or other consideration from the employer?
- Did the injury or death occur during a time period in which the worker was being paid a salary or other consideration, or did the injury or death occur during paid working hours?
- Was the injury or death caused by an activity of the employer or of a fellow employee?
- Did the injury or death occur while the worker was performing activities that were part of the worker’s job?
- Did the injury or death occur while the worker was being supervised by the employer or a representative of the employer having supervisory authority?
While a number of cases may be easily determined on the basis of the medical evidence and the above criteria, others are less straightforward. As illustrated by the examples below, there are areas of ambiguity.
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- Injuries during a Lunch, Coffee or other Break
The RSCM II C3-18.00 confirms that a worker can be considered to be in the course of his or her employment while on a break, and while engaged in a personal activity. What may be more difficult is proving that the worker’s injury arose out of his or her employment. According to the RSCM II C3-18.00, the employment must have played a role that is “more than trivial” for the injury to have arisen out of the course of the employment. However, if the worker was injured while doing a personal errand for the employer, the injury may arise out of and in the course of the employment.
There may be a fine line between a worker’s personal errand and a task performed for the benefit of the employer. For instance, in WCAT-2012-00706 (Re), the plaintiff, an employee of Envision Credit Union, was injured in a motor vehicle accident. The plaintiff was traveling between the Envision administration building and the Envision branch office to pick up a Brinks bag. She performed this task while on her paid 15 minute coffee break. However, when the collision occurred, she was on a side trip to Tim Horton’s to purchase coffee. Accordingly, the Panel determined that “the personal features [of the trip] were predominant.” The Panel explained that the trip to Tim Horton’s “involved a separate trip, involving a greater distance and time, in a different direction [and that] this travel represented a significant deviation from the plaintiff’s work route for personal purposes.”
Another example is found in the Panel’s decision in WCAT-2012-01398 (Re). The plaintiff was injured in a motor vehicle accident that occurred while the defendant was driving the plaintiff to get black pants. A requirement of the plaintiff’s job at Wendy’s was that she wear black pants, and she did not have them when she showed up for her shift (there was an immaterial conflict in the evidence as to why). Employees were required to show up at work wearing the proper uniform. The defendant driver was the plaintiff’s supervisor at Wendy’s, and drove her on a split shift to get the pants. The plaintiff was not paid during this trip.
WCAT determined that the plaintiff’s motor vehicle accident-related injuries did not arise out of and in the course of her employment at Wendy’s. In WCAT’s view, the factors that suggested that the injuries did not arise out of and in the course of the employment, and were determinative, included the following: the accident did not take place on the Wendy’s premises; the defendant was driving a personal vehicle; the plaintiff was not being paid during the trip; and the trip was not part of the plaintiff’s regular job duties. However, WCAT acknowledged that there were factors that supported coverage: the trip was solely related to the Wendy’s dress code; the defendant driver was a fellow employee; and the defendant driver was the plaintiff’s supervisor.
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- Injuries in Parking Lots and Premises Adjacent to the Workplace
The RSCM II specifically addresses accidents that occur in parking lots in C20.00, and sets out that there are five basic questions to be considered in a parking lot claim:
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- Was the lot provided by the employer for the worker? Generally, the authority or implied authority to use the parking lot favours coverage. …
- Was the lot controlled by the employer? The RSCM II states that if the lot is controlled by the employer, a claim may be acceptable. In claims involving shopping centre or shopping mall parking lots which are designed primarily for customer use and not controlled by the individual employer of a worker, an injury occurring on such premises would not normally be considered as acceptable. …
- Third, was the injury caused by a hazard of the premises? This is intended to limit acceptance to only those injuries which have a connotation of “employment relationship”. For example, a slip on a pool of oil or a trip over an obstruction would qualify. On the other hand, workers who nip their fingers in their own car doors would not have their claims accepted. There will also be claims which are not a direct result of the premises which may qualify, such as a pedestrian struck by a fellow employee’s car. The term “hazard of the premises” is not an absolute requirement for compensation coverage. Rather it illustrates the distinction between injuries resulting from personal causes and those resulting from the employment. …
- Fourth, was the parking lot contiguous to the place of employment? The word “contiguous” is defined as meaning both adjacent to and attached to. While desirable, it should not be deemed a mandatory prerequisite for acceptance. …
- Finally, did the injury occur proximal to the start or stop of the shift? If there is a significant time gap between the time of an accident and the start or stop of the shift, the matter is investigated to determine whether there is an employment relationship.
However, it is questionable whether the above guidelines make it much easier to determine whether or not an accident in a parking lot arose out of and in the course of the worker’s employment.
The decision in WCAT-2011-02426 (Re), involved a customer service agent at an airport, who, after checking in at work, discovered that she had forgotten her security clearance pass in her car. While going to her car to retrieve her security pass, she fell and hurt herself when getting onto an escalator upon exiting the SkyTrain station to go to the parking lot. The Panel decided that the worker’s injuries did not arise out of and in the course of her employment. The Panel considered the security pass to be “a personal item analogous to personal safety equipment (such as safety footwear) or tools and equipment that a worker is required to bring to the place of employment.” The Panel also considered the worker’s actions of returning to her vehicle to retrieve her security pass to involve “preparation for attending at work.”
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- Injuries that occur on a Business Trip
In determining whether or not injuries that occurred during a business trip arose out of and in the course of the worker’s employment, the starting points include the following: whether the trip was taken for the employer’s benefit, on the instructions of the employer and paid for by the employer. RSCM II C3-19.00 states that “An employment connection generally exists continuously during a business trip, except where the worker makes a distinct departure of a personal nature.”
Of particular significance the Manual goes on to provide as follows:
Personal activities associated with and incidental to business trips, such as traveling, eating in restaurants, staying in overnight accommodations (including sleeping, washing etc.) are normally regarded as within the scope of the employment where a worker is on a business trip.
On the other hand, when a worker makes a distinct departure of a personal nature while on a business trip, this may be regarded as outside the scope of the employment. There is an obvious intersection and overlap between employment and personal affairs while the worker is on a business trip. However, a “distinct departure” is more than a brief and incidental diversion.
If a worker simply stops for a short refreshment break, this may be regarded as a brief and incidental diversion from the business trip and an employment connection may still be found. The employment connection may be broken where the injury or death occurs as a result of the worker’s involvement in social or recreational activities that are not incidental to the business trip.
In WCAT-2010-02871 (Re), the plaintiff sought a s. 257 determination in relation to injuries sustained in a motor vehicle accident. The plaintiff was a passenger in a vehicle driven by his co-worker that struck a barrier and went out of control. The plaintiff and the defendant were both employed by the University of Victoria. Around the time of the accident, they were on a trip to Port Hardy to coordinate an off-site course as part of their employment duties. The defendant rented a vehicle for their use; the rental fees were paid by UVic. The course was held at a hotel out of town. On the afternoon in question, the parties concluded the course and decided to drive into Port Hardy to eat, shop (for personal items) and relax following the work day. While en route, the defendant took a wrong turn which led to the accident.
The Panel accepted that the injuries arose out of and in the course of employment as the primary purpose of the trip into Port Hardy was to have dinner and get groceries; the Panel declined to find that the trip was purely social. A primary consideration was the parties’ wish to try a different restaurant than the one at their hotel. The Panel also took note of the fact that the distances between the hotel and Port Hardy were relatively small. The Panel emphasized that the RSCM II recognizes eating as incidental to a business trip and within the scope of the employment.
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- Injuries that occur in Proximity to a Social Event
When injuries occur in proximity to a social event that may have some connection to the worker’s employment, item C3-17.00 of the RSCM II suggests that the key consideration is whether the employee was present at the event to further the employer’s interests. The policy provides as follows:
If a generally unauthorized activity such as alcohol consumption is not a permitted part of the employment, this does not automatically mean that an injury or death involving alcohol consumption did not also arise out of and in the course of the employment. The Board considers the employment-connection test set out in Item C3-14.00 to determine whether the employment factors of the situation were of causative significance. Where the causative significance of the alcohol consumption is predominant in the resulting injury or death, and the employment factors are neutral or non-existent, this does not favour coverage.
An example of a decision that involved a number of work-related and non-work-related considerations is WCAT-2011-01072 (Re). In that case, the plaintiff was a bartender at a pub in Burnaby. On the evening in question, the plaintiff and his general manager, and some others, attended a beer tasting function sponsored by Labatt Brewing Company. While at the event, the plaintiff tasted, and learned about, Labatt’s products. After the event, the plaintiff and the manger went to at least two other places where they ate and socialized. The plaintiff was a passenger in his manager’s vehicle, en route to the pub where they worked, when the manager lost control of the vehicle. The Panel determined that once the beer tasting event was completed, and the plaintiff and his companions opted to continue on with their evening at unrelated establishments, “the personal features of the evening soon dominated the employment features of the evening…” Accordingly, the accident did not arise out of and in the course of the plaintiff’s employment. While the evening began with a work purpose, “there was more than an incidental intrusion of personal activity” into the course of the night’s events.
Part II: Practice Before WCAT
Detailed information respecting practice before WCAT, including the types of evidence that the Panel can consider, are found in the Manual of Rules of Practice and Procedure.
i. Initiating a Section 257 Application
A section 257 determination is initiated by writing to WCAT, with notice to other parties to the action, specifically requesting a certification pursuant to s. 257 of the WCA. There is a form that may be attached, but it is not necessary to submit the form if counsel’s letter identifies and provides contact information for the parties and their legal representatives, provides the pleadings including the Notice of Trial (if applicable), advises of any related actions (such as a Part 7 action).
Counsel for any party may seek the determination. It is also open to the Court to seek a determination on its own motion. On a related point, if plaintiff’s counsel anticipates that a defendant will bring a s. 257 determination at some point in the proceedings, and that there is a prospect that it will be successful, plaintiff’s counsel should make an application for workers compensation benefits within the 1 year limitation period set out in s. 55 of the WCA. If the action against the defendant is statute-barred, the plaintiff can proceed with the workers’ compensation claim.
ii. Conduct of the Application
This autonumbering uses the List styles (shortcut keys are Alt L1, Alt L2 etc.)Once the claim is initiated, the WCAT coordinator will set a timeline for submissions from the parties. In most cases, submissions will be made in writing, and without the need for an oral hearing. If WCAT believes that there are issues of credibility and significant factual disputes, an oral hearing may be needed.
It is important to be aware that no time frame applies to the making of a WCAT decision (s. 257(3)). Accordingly, while the action should be set for trial, the parties must monitor the trial date to ensure that there is enough time to prepare if the s. 257 determination does not succeed (or does not benefit all defendants). An adjournment may be necessary. It is not uncommon for WCAT decisions to take over one year to be rendered. Accordingly, if counsel do not wish to lose their trial date, consideration should be given to initiating the application at an early stage so that it is in the queue.
iii. Evidence
WCAT is not bound to follow strict rules of evidence. However, the Panel will assign varying weight to different types of evidence. Evidence before WCAT can include oral statements, written records/documents, demonstrations, physical objects. Documents containing a person’s statements do not need to be appended to affidavits or statutory declarations, but they do need to be signed and dated.
Examinations for Discovery can be conducted while a s. 257 determination is underway. As discovery evidence may form the basis of a party’s submissions, discoveries should be completed before the submissions deadline. WCAT will request copies of the discovery evidence. The parties may also consider simplifying their submissions with an agreed statement of facts.
iv. The Certification
WCAT does not determine the effect of the s. 257 certificate on the legal action (including whether or not it is barred pursuant to s. 10 of the WCA. Following the issuance of a certificate, a party may apply to the court for a ruling as to whether the action should be dismissed based on s. 10.
The Court is bound by WCAT’s ruling on the matters that were the subject of the s. 257 determination. However, the jurisdiction to decide the effect of those determinations on the underlying cause of action, including the jurisdiction to order that an action is statute-barred, rests with the Court: Hommel v. Cooke et al, 2005 BCSC 658; Clapp v. Macro Industries Inc., 2007 BSCS 840.
Usually, once a certificate is issued, the action against any defendant(s) that benefit from it will be discontinued or dismissed. From time to time, remaining defendants seeking apportionment of fault may seek to keep defendants that have the benefit of a s. 257 determination in the action via third party proceedings. Case law suggests that this step is unnecessary.
There is no need for a remaining defendant to seek contribution and indemnity from a party that has the benefit of a s. 257 certificate by means of a third party claim. Liability (if any) for the plaintiff injuries (if any) will be several due to the provisions of s. 10(7) of the WCA: Canada Post Corporation v. Wiebe, 2006 BCCA 372; Piper v. Mitsubishi Heavy Industries, Ltd., 2009 BCSC 1310.
In Piper, the third party applied for an order striking the claim brought against it by one of the defendants on the basis that the third party proceeding was barred by s. 10 of the Act. As in the case at bar, the third party had the benefit of a favourable WCAT certificate and decision. In striking the third party claim, Pitfield J. applied Wiebe as authority “for the proposition that a tortfeasor who is not the employer of an injured worker cannot join the employer of that worker by means of a third party proceeding for the purpose of allowing the court to be in a position to make a finding regarding the extent to which that tortfeasor, as opposed to the employer, caused or contributed to the accident. The court can make the required finding without the employer being a party to the proceeding” (at para. 22).
