IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150930

Docket: M131123

Registry:
Vancouver

Between:

Tai Chi Chau

Plaintiff

And

Michael David
Crawford

Defendant

And

The Owners, Strata
Plan LMS 3869,

ABC Property
Management Company Ltd.,

ABC
Company Ltd. and John Doe

Third
Parties

Before:
The Honourable Mr. Justice Funt

Reasons for Judgment

I.                
introduction

[1]            
The Owners, Strata Plan LMS 3869 (the “Strata Corporation”) is a strata
corporation. The Strata Corporation is a third party in these proceedings.

[2]            
The Strata Corporation seek that the third party proceedings be stayed
pending the issuance of a certificate under s. 257 of the Workers Compensation
Act, R.S.B.C. 1996, c. 492.

[3]            
The defendant opposes the application. The plaintiff takes no position
respecting the application.

[4]            
For the reasons that follow, the stay the Strata Corporation seeks is
granted.

II.              
pleadings

[5]            
The plaintiff, a construction labourer, has sued the defendant claiming
that he sustained serious personal injury as a result of a collision caused by
the defendant.

[6]            
The plaintiff has pleaded that on or about April 13, 2011, he was
standing on a ladder power washing a townhouse complex (the Strata
Corporation’s strata property) when a car driven by the defendant ran over and
pulled or struck the plaintiff’s power washing equipment causing the plaintiff
to fall from the ladder and sustain injury.

[7]            
The defendant denies all of the plaintiff’s key pleaded facts, including
that a collision occurred. In further answer the defendant has pleaded:

2. In answer
to the whole of the notice of civil claim, the defendant says that if an
incident occurred at the time and place as set out in paragraph 4 of the notice
of civil claim, which is not admitted but specifically denied, and if as a
result thereof the plaintiff sustained any injury, loss,
damage, or expense which is not admitted but specifically denied, the defendant
says that the Collision occurred without negligence on the part of the
defendant, and occurred solely as a result of, or was contributed to, by the
negligence of the plaintiff, the plaintiff’s employer, Strata Plan LMS 3869
(the “Strata Corp.”) and/or the management company employed by the Strata Corp.
The defendant is under no liability to the plaintiff whatsoever.

3. Particulars of
the negligence of the plaintiff include, but are not limited to:

(a)        
Failing to take reasonable or proper or any precautions to avoid
the incident;

(b)        
Failing to take any or, in the alternative, any proper care for
his own safety;

(c)         
Operating and erecting the power washing equipment on a roadway
when he knew or ought to have known it would be unsafe to do so;

(d)        
Running the hose of the power washer across a roadway without
protecting the hose from passing vehicles;

(e)        
Failing to operate the power washer as recommended by the
manufacturer and as set out in the operating instructions of same;

(f)           
Failing to wear protective and/or a safety harness to protect
himself from injury should he lose balance or fall from the ladder;

(g)        
Failing to ensure the ladder was properly installed and secured
as recommended by the manufacturer and as set out in the operating instructions
of same;

(h)        
Failing to report to his supervisor or employer the absence of or
defect in any protective equipment, device or clothing, or the existence of any
other hazard, that he considered likely to endanger him or any other person
pursuant to s. 116 of the Workers’ Compensation Act, R.S.B.C. 1996,
c.492, and amendments and regulations thereto;

(i)    Failing
to take reasonable care to protect his health and safety and the health and
safety of other persons who may be affected by his acts or omissions at work
pursuant to s. 116 of the Workers’ Compensation Act, R.S.B.C. 1996,
c.492, and amendments and regulations thereto;

(j)    Failing to carry out his work in accordance with established
safe work procedures as required by the Workers’ Compensation Act,
R.S.B.C. 1996, c.492, and amendments and regulations thereto; and,

(k)   Failing to ensure that his ability to work without risk to his
safety was not impaired by alcohol, drugs or other causes pursuant to the Workers’
Compensation Act, R.S.B.C. 1996, c.492, and amendments and regulations
thereto.

4. Particulars
of the negligence of the plaintiff’s employer include, but are not limited to:

(a)        
Failing to ensure the health and safety of all workers working
for the employer pursuant to the Workers’ Compensation Act, R.S.B.C.
1996, c.492, and amendments and regulations thereto;

(b)        
Failing to provide and maintain in good condition protective
equipment, devices and clothing as required by regulation pursuant to the Workers’
Compensation Act, R.S.B.C. 1996, c.492, and amendments and regulations
thereto;

(c)         
Failing to ensure that the protective equipment, devices and
clothing provided and maintained by the employer were being used by the workers
pursuant to the Workers’ Compensation Act, R.S.B.C. 1996, c.492, and
amendments and regulations thereto;

(d)        
Failing to provide the worker the information, instruction,
training and supervision necessary to ensure the health and safety of those
workers in carrying out their work and to ensure the health and safety of other
workers at the workplace pursuant to the Workers’ Compensation Act,
R.S.B.C. 1996, c.492, and amendments and regulations thereto;

(e)        
Failing to take that care that in all the circumstances that is
reasonable to see that a person on the premises would be reasonably safe in
using the premises pursuant to the Occupiers Liability Act, R.S.B.C.
1996, c.337 and amendments and regulations thereto.

5. Particulars
of the negligence of the Strata Corp. and/or the management company retained by
the Strata Corp. include, but are not limited to:

(a)        
Failing to ensure the health and safety of all workers working for
the Strata Corp. and/or the management company retained by the Strata Corp.
pursuant to the Workers’ Compensation Act, R.S.B.C. 1996, c.492, and
amendments and regulations thereto;

(b)        
Failing to provide and maintain in good condition protective
equipment, devices and clothing as required by regulation pursuant to the Workers’
Compensation Act, R.S.B.C. 1996, c.492, and amendments and regulations
thereto;

(c)         
Failing to ensure that the protective equipment, devices and
clothing provided and maintained by the Strata Corp. and/or the management
company retained by the Strata Corp. are being used by the workers pursuant to
the Workers’ Compensation Act, R.S.B.C. 1996, c.492, and amendments and
regulations thereto;

(d)        
Failing to provide the worker the information, instruction,
training and supervision necessary to ensure the health and safety of those
workers in carrying out their work and to ensure the health and safety of other
workers at the workplace pursuant to the Workers’ Compensation Act,
R.S.B.C. 1996, c.492, and amendments and regulations thereto;

(e)        
Failing to give to the Strata Corp. and/or the management company
retained by the Strata Corp. or prime contractor at the workplace the
information known to the Strata Corp. and/or the management company retained by
the Strata Corp. that is necessary to identify and eliminate or control hazards
to the health or safety of persons at the workplace, namely, the location of a
safe water outlet which the plaintiff could have hooked up his power washer to,
pursuant to the Workers’ Compensation Act, R.S.B.C. 1996, c.492, and
amendments and regulations thereto; and,

(f)    Failing to take that care that in
all the circumstances that is reasonable to see that a person on the premises
would be reasonably safe in using the premises pursuant to the Occupiers
Liability Act, R.S.B.C. 1996, c.337 and amendments and regulations thereto.

[8]            
Consistent with his further answer in his response to the plaintiff’s
notice of civil claim, the defendant has claimed against the third parties,
including the Strata Corporation.

[9]            
The defendant in his third party notice incorporates the facts set forth
in his response to the plaintiff’s notice of civil claim. The defendant in the
third party notice also pleads:

6. The third
party, ABC Property Management Company Ltd., is a property management company
unknown to the Claiming Party and retained by and providing property management
services for The Owners, Strata Plan LMS 3869.

7. The third party, ABC Company Ltd., is a company unknown to the
Claiming Party which was, at all material times, retained by one or both of The
Owners, Strata Plan LMS 3869 and/or ABC Property Management Company Ltd. to
undertake maintenance of the subject strata plan and which employed the
plaintiff to carry out certain services at the townhouse complex as described
in Part 1, paragraph 4 of the Notice of Civil Claim.

8. The third party,
John Doe, is an individual unknown to the Claiming Party, who was, at all
material times, retained by one or both of The Owners, Strata Plan LMS 3869
and/or ABC Property Management Company Ltd. to undertake maintenance of the
subject strata plan and which employed the plaintiff to carry out certain
services at the townhouse complex as described in Part 1, paragraph 4 of the
Notice of Civil Claim.

[10]        
The defendant in the third party notice pleads that he relies on the Workers
Compensation Act, the Negligence Act, R.S.B.C. 1996, c. 333,
and the Occupiers Liability Act, R.S.B.C. 1996, c. 337.

III.            
Statutory provisions

[11]        
For the application at bar, the key statutory provisions are found in
the Workers Compensation Act and read:

2 (1) This Part applies to all
employers, as employers, and all workers in British Columbia except employers
or workers exempted by order of the Board.

10 (1) The provisions of this
Part are in lieu of any right and rights of action, statutory or otherwise,
founded on a breach of duty of care or any other cause of action, whether that
duty or cause of action is imposed by or arises by reason of law or contract,
express or implied, to which a worker, dependant or member of the family of the
worker is or may be entitled against the employer of the worker, or against any
employer within the scope of this Part, or against any worker, 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.

(7) If, in an action brought by
a worker or dependant of a worker or by the Board, it is found that the injury,
disablement or death, as the case may be, was due partly to a breach of duty of
care of one or more employers or workers under this Part, no damages,
contributions or indemnity are recoverable for the portion of the loss or
damage caused by the negligence of that employer of worker; but the portion of
the loss or damage caused by that negligence must be determined although the
employer or worker is not a party to the action.

254 The appeal tribunal [the Workers’
Compensation Appeal Tribunal “WCAT”] has exclusive
jurisdiction to inquire into, hear and determine all those matters and
questions of fact, law and discretion arising or required to be determined
under this Part and to make any order permitted to be made, including the
following:

(c) all matters that the appeal tribunal is requested to determine
under section 257;

257 (1) Where an action is commenced based on

(b)
 a personal injury, or

the court or a party to the action may request the appeal
tribunal to make a determination under subsection (2) and to certify that
determination to the court.

(2) For the purposes of subsection
(1), the appeal tribunal may determine any matter that is relevant to the
action and within the Board’s jurisdiction under this Act, including
determining whether

(a) a person was, at the time the
cause of action arose, a worker,

(b) the injury, disability or death
of a worker arose out of, and in      the course of, the worker’s employment,

(c) an employer or the employer’s
servant or agent was, at the      time the cause of action arose, employed by
another      employer, or

(d) an employer was, at the time
the cause of action arose,      engaged in an industry within the meaning of
Part 1.

(3) This Part, except section 253 (4), applies to proceedings
under this section as if the proceedings were an appeal under this Part.

IV.           
The STRATA CORPORATION’S position

[12]        
The Strata Corporation’s argument is that the claim against them by the
defendant should be stayed pending a certificate issued under s. 257 of
the Workers Compensation Act which will help determine many matters
relevant to the litigation (e.g. whether the plaintiff was a worker; whether
the claimed injury arose in the course of employment).

[13]        
With a stay pending the issuance of the s. 257 certificate, the Strata
Corporation argues that the litigation will proceed more efficiently and
without creating unnecessary costs.

V.             
The Defendant’s position

[14]        
The defendant makes various arguments. First, the defendant says that
the pleadings reflect aspects that are not covered by the Workers Compensation
Act. The defendant directed the Court’s attention to the pleadings related to
the Occupiers Liability Act. In a similar vein, the defendant argued
that the bar to proceedings in s. 10 of the Workers Compensation Act applies
only to “employers, as employers”.

[15]        
Second, the defendant says there was no evidence as to what the
plaintiff’s activities were at the time of the accident. In particular, there
was no evidence that the plaintiff was being paid or the contractual
relationship he had, if any.

[16]        
Third, the defendant argued that examinations for discovery at this time
would not be a waste of resources because the WCAT would be able to use
the discovery transcripts (the defendant wishes that a s. 257 certificate
be sought after discoveries) and in any event, the defendant could bring a
motion asking to depose a representative of the Strata Corporation and to seek
document production.

[17]        
Fourth, the defendant argued that in all likelihood the WCAT would
not investigate matters. In this regard, the defendant referred the Court to a WCAT
booklet entitled “Legal Act Guide, Section 257 Certificate” in which it is
stated at p. 6:

WHAT MUST I PROVIDE TO WCAT TO OBTAIN A SECTION 257
CERTIFICATE?

In addition to the application documents and information that
you give to us, you will need to make submissions that clearly identify the issues,
set out the factual background, and provide all the evidence and argument
necessary for WCAT to consider the issues.

Although we have the right to
seek additional evidence, please do not assume that we will investigate
further. Ensure that you provide us with all relevant evidence.

[18]        
Fifth, the defendant says that any prejudice occasioned to the Strata
Corporation could be addressed by an award of costs.

VI.           
Analysis

[19]        
Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46 provides
guidance in the present case. In Dominion Canners, the plaintiff’s
employees claimed to have suffered typhoid fever attributable to well water
that served the domestic needs of the plaintiffs as dwellers in a tenement of
the defendant employer. Both the Supreme Court of Ontario and the Appellate
Division held that the plaintiffs had not been injured “by accident” within the
meaning of the Ontario workers’ compensation legislation. The Ontario
legislation shares common legislative purposes with the Workers Compensation
Act.

[20]        
The defendant employer appealed to the Supreme Court of Canada on the
grounds that the plaintiff’s claim was statute-barred because of the exclusive
jurisdiction granted to the Workmen’s Compensation Board by the Workmen’s
Compensation Act, R.S.O. 1914, c. 25. In considering the jurisdiction of
the Supreme Court of Ontario relative to the Ontario Workmen’s Compensation
Board, Justice Anglin, per majority, stated at p. 61:

It seems to be quite clear that the question of the
plaintiffs’ right to bring and maintain this action “arises under” Part I and
also that it is

a matter or thing in respect to
which power, authority or discretion is conferred on the Board.

In my opinion by giving to the board

exclusive jurisdiction to examine
into, hear and determine

all such matters and questions the legislature intended to
oust and did oust the jurisdiction of the ordinary courts to entertain them,
and required that they should be examined into, heard and determined solely by
the board.

In reaching this conclusion I have not forgotten that
the jurisdiction of superior courts is not taken away unless by express
language in, or necessary inference from, a statute. Balfour v. Malcolm [[1842]
8 Cl. & F. 485 at 500]; Oram v. Brearey [[1877] 2 Ex. D. 346 at 348].
I find here a positive and clear enactment that the jurisdiction of the
board shall be “exclusive” — and nothing to warrant a refusal to give to that
word its full effect.

The purpose of the legislature
apparently was to secure uniformity in the determination of what classes of
cases fall within the operation of the [Workmen’s] Compensation Act by having a
single tribunal deal with that question, and also to ensure that no workman
injured in the course of his employment should find himself in the position of
having been denied damages by the courts because he was, in their opinion,
entitled to compensation under the Act, and refused compensation by the board
because he was, in its view, not so entitled.

[21]        
With respect to issuing a stay, Anglin J., also per
majority, stated at p. 63:

Under the amended statute, in my
opinion, whenever this question arises as a substantial issue in the course
of an action the proper course to take is to stay proceedings in the action
until it has been adjudicated upon by the board. Simpson v. Crowle [[1921]
3 K.B. 243] at pages 250, 255. In view of the provisions of s. 20 the
workman-plaintiff will be well advised in every case where there is any
conceivable ground for contending that his claim falls within the Act to seek
the determination of the board at the earliest possible date. [Emphasis added]

[22]        
The granting of a stay or an adjournment is a matter within the Court’s
discretion and depends on the circumstances of each case: Hommel v. Cooke et
al., 2005 BCSC 658 at para. 32. However, when issues are raised under the Workers
Compensation Act that are within the exclusive jurisdiction of WCAT, the usual
course taken by the Court has been to stay or adjourn the proceedings to allow
WCAT to render a determination: Clack v. Duffus (1995), 5 B.C.L.R. (3d)
120 (S.C.); Davidson v. Kokanee Park Marine Ltd., 2001 BCSC 263 at para.
4; Hazell v. Toews, [1997] B.C.J. No. 2495 (S.C.) at para. 20; Hommel.
This course is consistent with Dominion Canners, as discussed above.

[23]        
The defendant objects to the granting of a stay at this point in the
proceedings. The defendant argues that only some of the issues in this matter
are related to the Workers Compensation Act, and that there is no evidence
yet as to the plaintiff’s activities at the time of the accident. The defendant
wishes the examinations for discovery to proceed. On these points, absent
exceptional circumstances, the reasoning of Justice Clancy in Hazell at
para. 20 applies:

[20] I conclude that the authorities binding on me and to
which I am obliged to give deference make it clear that, at any stage of the
proceedings, the issue may be raised and if that is done on any conceivable
grounds, the proper course is to stay the action and refer the matter to the
Board for a determination.

[24]        
In Dominion Canners, the Workmen’s Compensation Act, while
allowing (after its amendment) “any party” to apply to the Workmen’s
Compensation Board for a determination, did not, like s. 257(1) of the Workers
Compensation Act, contemplate specifically the court making such
request. In my view, the fact that the court may request a s. 257
determination shows the Legislature’s intent that the court should ensure
matters within WCAT’s jurisdiction are addressed by WCAT before unnecessary or
duplicative steps are taken in court. Judicial resources are also conserved: see
Hommel at para. 46.

[25]        
To put matters in colloquial terms, the underlying legislative goal in
giving the court the power to request a s. 257 determination by WCAT is to
avoid having “two cooks in the kitchen”. WCAT has the expertise to deal with
workers’ compensation matters, has access to records which may be relevant to its
determinations, and has the statutory authority to investigate matters and to conduct
hearings: see Part 4, Division 3 of the Workers Compensation Act.

[26]        
I have noted defendant counsel’s argument that WCAT’s policy is not to
investigate matters. With respect, I do not read WCAT’s policy to be so firm. WCAT
simply advises parties not to assume that it will initiate its own
investigation in every case. WCAT has broad statutory powers, including, as noted,
the power to investigate. Where a worker has been seriously injured, I expect
that WCAT would use its powers to have before it all relevant information. WCAT
has a broad mandate and has been granted exclusive jurisdiction to fulfill its
mandate. WCAT should be able to proceed as it determines is proper in the
circumstances of a particular case.

[27]        
If a stay were not granted, I am concerned that as information was
discovered by a particular party, it would be sent to WCAT after it had already
begun considering matters, causing its deliberations to become disjointed.
Ongoing discovery obligations arising in the course of the court proceedings
give rise to this concern.

[28]        
Answers to such questions as whether the plaintiff was a worker working
at the time of the accident and if so, who his employer was, underlie many
aspects of the litigation as currently framed by the pleadings. The Court therefore
views that greater overall efficiency and conservation of resources will be
achieved with a stay.

[29]        
The Court is also of the view that the possible prejudice to the Strata
Corporation of needing to address matters that may prove superfluous could not
be fully addressed by an award of costs.

VII.          
conclusion

[30]        
The Court orders that proceedings as against the Strata Corporation be
stayed pending the issuance of the relevant certificate(s) under s. 257 of
the Workers Compensation Act.

[31]        
Costs will be in the cause.

“Funt J.”