When in receipt of a claim, one of the first areas for further investigation is whether the claim is statute barred. A claim may be limitations barred, may not have been brought in the appropriate jurisdiction, or a statute may confer protection from liability in certain factual circumstances. A consideration to keep in mind is whether a claim is statute barred pursuant to section 23 of the Workers’ Compensation Act, RSA 2000, c W-15 (the “WCA”).

The workers’ compensation system provides workers who are injured in a workplace accident with a complete framework for the provision of compensation independent of any assessment of fault for the accident and the employer’s ability to pay. It’s a true no fault system. In exchange, the injured worker gives up their right to sue both employees and employers covered by the WCA.

The Alberta Court of Appeal has confirmed the all-encompassing language of the WCA, exhibiting a clear legislative intention that any cause of action be barred against any employer when the statutory preconditions of the section are met. In Donnelle (Estate of) v. Ay-Jay Operations Ltd., the Court of Appeal noted that the system included a “historical trade-off”, where in return for losing a potential cause of action against their employers, workers were guaranteed compensation that depends neither on the fault of the employer nor its ability to pay.

Section 23(1) of the WCA states that if an accident occurs where the worker is entitled to compensation under the WCA, then the worker does not have any cause of action related to the injury as a result of the accident against the employer or any employee when the employer or any employee caused or contributed to the injury that arose out of and in the course of employment.

Accordingly, any personal injury that falls within the coverage of the WCB are barred from bringing a civil action for personal injury against the tortfeasor.

The following two factors must be established to fall within WCB coverage:

• Arises out of Employment - An injury arises out of employment when it is cause by an employment hazard and a hazard is defined as an employment circumstance which presents a risk of injury. Employment hazard deals with how the accident occurred. The hazard may be directly related to the industry or occupation (for example, machinery, chemicals, worksite ergonomics), or may be incidental (for example, weather conditions, insect bites, third-party vehicles).
• Occurs in the Course of Employment - An injury occurs in the course of employment when it happens at a time and place consistent with the obligations and expectations of employment. Time considers when the accident occurred, and place considers where the accident occurred. Time and place are not strictly limited to the normal hours of work or the employer’s premises, however, there must be a relationship between employment expectations and the time and place the accident occurs.

Coverage is determined on a case-by-case basis, considering the individual circumstances of each claim. Section 24(4) of the WCA creates a presumption that unless the contrary is shown, a worker’s injuries that arise out of employment are presumed to have occurred in the course of employment and vice versa.

When assessing a claim, it is important to keep the following factors in mind:

• The protection provided by Section 23(1) of the WCA only applies to actions for personal injury. It does not apply to civil actions for property damage.
• Section 23(1) immunity does not extend to civil claims for personal injury commenced by individuals who are not covered under the WCA.
• Generally, a worker is not covered during travel to begin and end a shift at a specific worksite or their employer’s premises. However, there are exceptions, for example, where the travel may be related to employment obligations, there are duties associated with the travel itself, or if the injury occurs on an access route controlled by the employer.

Takeaways

It is important to be alive to the possibility that an injury claim arising out of the employment of a party may be statute barred from civil action if it is an injury that is covered by WCB. After receiving a claim, appropriate investigations should be conducted to determine whether circumstances support a finding of WCB coverage. If there is any uncertainty as to whether an injury may be covered by WCB, a request to the WCB for a determination can be made. It is also important to note that a request for a determination can be made at any point after the injury occurred.

If you have questions about the process of requesting a determination of coverage from the WCB, please contact Christine Pratt, KC or Katherine Fu in Edmonton, Jane Freeman in Calgary, or any member of Field Law’s Insurance Group for guidance in this area.