IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110719

Docket: S103788

Registry:
Vancouver

Between:

Roberto Orellana
Gonzalez (W.C.B. Claim # DC.95529615)

Plaintiff

And

Workers’
Compensation Board (Now Work Safe) of British Columbia and Workers’
Compensation Appeal Tribunal

Defendants

Before:
The Honourable Mr. Justice Myers

Reasons for Judgment

[1]      The defendants apply to strike this action pursuant
to Rule 9-5 or alternatively to have it dismissed pursuant to Rule 9-7.

[2]      The plaintiff, Mr. Orellana, who represented
himself, immigrated to Canada from El Salvador in 1988.  In El Salvador he
worked as a teacher; however his teaching credentials were not recognised in
Canada and from the time of his immigration he worked as a roofer.  In 1995,
when doing roofing work, Mr. Orellana fell and was injured.  Shortly afterward,
he filed a claim with the Workers’ Compensation Board (“WCB”).  The
determinations of the WCB have been the subject of numerous appeals and reviews
within the Board and to the Workers’ Compensation Appeal Tribunal (“WCAT”).  (The
review and appeal procedures changed during the course of the plaintiff’s
dispute as have the names of the various entities involved.)

[3]      The outcome of the claim, reviews and appeals which
were concluded in November 2009, was that the WCB accepted that Mr. Orellana
was 100% disabled as a result of the accident and he is receiving a pension
based on being completely unemployable.  His wage rate for the purposes of the
disability pension was calculated on the most favourable basis available based
on his past earnings as a roofer.

[4]      On April 24, 2010 Mr. Orellana filed a judicial
review petition with respect to that outcome.  The petition was heard by
Kloegman J. in March 2010 and dismissed in April 2010: Gonzalez v. British
Columbia (Workers’ Compensation Board), 2010 BCSC 476.  That judgment also
sets out a history of Mr. Orellana’s WCB claim, reviews and appeals, which I
will not repeat here.

[5]      This lawsuit was commenced on May 28, 2010.  It
is difficult to construe precisely what causes of action are alleged, but it
claims damages as a result of the various determinations of the WCB and WCAT.  It
also claims damages resulting from discrimination and Charter breaches.  It
is apparent from the statement of claim and Mr. Orellana’s lengthy written and
oral submissions that his main complaint is that his disability pension should
have been based on a teacher’s salary rather than his earnings as a roofer.  He
is also generally dissatisfied with and disaffected by the workers’
compensation system as a whole.

[6]      The WCB has
throughout the course of Mr. Orellana’s claim process been subject to a
privative clause contained in the various iterations of the Workers
Compensation Act.  The following underlined passage from the current s.
96(1) of the Workers Compensation Act, R.S.B.C. 1996, c. 492, have
remained throughout:

96 
(1) Subject to sections 239 and 240, the Board has exclusive jurisdiction
to inquire into, hear and determine all matters and questions of fact and law
arising under this Part, and the action or decision of the Board on them is
final and conclusive and is not open to question or review in any court, and
proceedings by or before the Board must not be restrained by injunction,
prohibition or other process or proceeding in any court or be removable by
certiorari or otherwise into any court, and an action may not be maintained
or brought against the Board or a director, an officer, or an employee of the
Board in respect of any act, omission or decision that was within the
jurisdiction of the Board or that the Board, director, officer or employee
believed was within the jurisdiction of the Board; and, without restricting
the generality of the foregoing, the Board has exclusive jurisdiction to
inquire into, hear and determine .

[7] In Chisamore
v. Cumis Life Insurance Company et al, 2006 BCSC 462,
the plaintiff brought an action very similar to this one.  At para. 24, Groper
J. held that decisions of the WCB can only be reviewed under the Judicial
Review Procedure Act, R.S.B.C. 1996, c. 241.  She went on to say:

[25]  The WCB
cannot be sued for damages in its exercise of it judicial or quasi-judicial
powers: Polson v. WCB, unreported, May 19, 1988, Vancouver Registry
C881656 (BCSC).

[26]      Neither can the WCB be
sued for negligence in the exercise of its exclusive jurisdiction. It does not
owe a private law duty of care to a claimant, in this case, the plaintiff.

This decision was upheld on
appeal: Chisamore v. Stevens
et al, 2006
BCCA 557.

[8]      That conclusion must
apply with equal force to the WCAT.  Section 56 of the Administrative Tribunals
Act, S.B.C. 2004, c. 45, provides:

56 
(1) In this section, "decision
maker" includes a tribunal member, adjudicator, registrar
or other officer who makes a decision in an application or an interim or
preliminary matter, or a person who conducts a dispute resolution process.

(2)        Subject to subsection (3), no legal proceeding for
damages lies or may be commenced or maintained against a decision maker, the
tribunal or the government because of anything done or omitted

(a)        in the performance or
intended performance of any duty under this Act or the tribunal’s enabling Act,
or

(b)        in the exercise or
intended exercise of any power under this Act or the tribunal’s enabling Act.

(3) Subsection (2) does not
apply to a person referred to in that subsection in relation to anything done
or omitted by that person in bad faith.

Section 245.1 of the Workers Compensation Act
makes this section applicable to the WCAT.

[9]      Insofar as any allegations of bad faith,
discrimination and Charter breaches are concerned, whether against the
WCAT or the WCB, these are bald assertions without any factual basis being
plead.

[10]    Any issues of lack of jurisdiction were the
subject of the judicial review application dismissed by Kloegman J.

[11]    I therefore conclude that it is plain and
obvious that the statement of claim does not disclose a cause of action.  Further,
any issues that were or could have been dealt with in the judicial review
application are res judicata.  The duplication of them in the current
action is an abuse of process.

[12]    It follows that the action is dismissed with
costs to the defendants.

“E.M. MYERS, J.”