IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150617

Docket: 14-0418

Registry:
Victoria

Between:

Thomas
Arthur Dunn

Plaintiff

And:

Erica
Meredith Lee and Knoles & Ryan Developments Inc.

Defendants

Before:
The Honourable Mr. Justice Macaulay

Oral Reasons for Judgment

(In
Chambers)

[1]            
THE COURT: The defendants make a number of applications,
including number 3, as follows:

The plaintiff directly provide or
authorize production to the defendants within 14 days of this hearing a copy of
all WorkSafe BC policies held by him personally or by Gardens Dunn pertaining
to his WorkSafe BC insurance coverage as of the date of October 16, 2013.

[2]            
The plaintiff opposes the application and says that there is no evidence
to support granting it and that to do so would be an inappropriate breach of
the plaintiff’s privacy.

[3]            
The plaintiff alleges in his tort claim that he was injured as a result
of an accident that occurred on October 16, 2013. There is some evidence that
the plaintiff was, at the material times, the proprietor of a landscaping
business.

[4]            
He and an employee attended a job site in the area near the location of
the accident. Some time during the course of the morning, the plaintiff left
the job site and walked across the road. At or about that time, the plaintiff
was struck by a vehicle owned by the corporate defendant and operated by the
individual defendant. The plaintiff sustained injuries and today seeks summary
judgment limited to the issue of liability.

[5]            
In response to the plaintiff’s claim, the defendants have raised, among
other things, an issue whether the plaintiff was a worker entitled to coverage
under the Workers’ Compensation Act. If correct, this court has no
jurisdiction to hear the plaintiff’s tort claim. To this point, however, the
defendants have not made any application to the Workers’ Compensation Appeal
Tribunal for a determination whether the plaintiff was a worker at the material
time, a matter that is within the exclusive jurisdiction of that tribunal.

[6]            
In response to the defendants’ application number 3 and generally, the
plaintiff says that it is clear that he was not insured with WorkSafe BC at the
material time as a worker under the scheme. He has voluntarily produced two
pieces of correspondence from WorkSafe BC: first, a letter from WorkSafe BC
dated March 2, 2011, referencing account number 862434-AA (021) confirming
worker coverage and stating in part:

If you operate as a
proprietorship or partnership the proprietors or partners of your firm will not
receive Workers’ Compensation benefits in the event of an injury unless they
have personal option protection (POP) coverage. If you’d like to add POP
coverage to your account in the future, please apply on our website or contact
our employer service centre.

[7]            
And second, in response to a letter from plaintiff’s counsel asking
whether the plaintiff has ever had personal option protection coverage, a
further WorkSafe BC letter dated June 8, 2015, this time referencing account
number 862434-AQ in the name of the plaintiff stating, "this is to confirm
the above account has been active with WorkSafe BC since March 1, 2011, for
worker coverage only."

[8]            
Defendants’ counsel points to what she describes as the "anomaly”
in the file extensions and states that she is entitled to seek some further
information from WorkSafe BC to determine the significance, if any, of the
different file extensions so as to satisfy the defendants as to the existence
or non-existence of Workers’ Compensation coverage at the material time. The
question whether the plaintiff was an insured worker at the material time is
directly relevant in the proceeding.

[9]            
The plaintiff raises concerns about the impact on the privacy of the
plaintiff but those concerns appear minimal to me. The narrow question, in
respect to which further information is sought, relates to the existence of
Workers’ Compensation coverage for the plaintiff at the material time.

[10]        
The plaintiff is not prepared to provide an authorization for the
release of any further information. As a result, the defendants are left with
applying for the production of third party records, a process that will
necessarily take longer than if the plaintiff granted an authorization.

[11]        
I am satisfied it would be unjust at this time to decide the plaintiff’s
summary judgment application before the defendants have an opportunity to
obtain further WorkSafe BC records and, if justified, pursue an application
before the tribunal to exclusively determine whether the plaintiff was a worker
at the material time.

[12]        
Accordingly, I adjourn all applications before me generally. If the
defendants do not apply for production of the further WorkSafe BC records or
otherwise acquire them within six weeks of today’s date, the plaintiff will be
at liberty to reschedule the summary judgment application. I am not seized. Similarly,
after the six weeks, the defendants will be at liberty to reschedule such of their
applications as are necessary at that time. Again, I am not seized. In all the
circumstances I make no order as to costs.

                “M.D.
Macaulay, J.”              

The
Honourable Mr. Justice Macaulay