"Historic trade-off" affirmed

Workers’ rights to sue over workplace accidents are severly restricted by workers compensation schemes across the country.  Statutes like the Workers Compensation Act of BC provide workers with access to an insurance scheme that does not depend on finding fault or the ability of the employer to pay for a workplace injury, illness or death.  But in exchange, workers cannot sue the employer or other workers.  That has been described as the “historic trade-off” and the Supreme Court of Canada recently re-affirmed the principle.

The case of Marine Services International v. Ryan Estate is mostly about the interplay of federal and provincial laws and a full analysis of that issue case can be found on our Canadian Appeals Monitor blog.

For our purposes, the important facts are these:

  • The Ryan brothers were drowned when their fishing vessel capsized.
  • Marine Services had designed and built the vessel.
  • The Ryan brothers were not employees of Marine Services, but they were workers covered by the Newfoundland and Labrador Workplace Health, Safety and Compensation Act.
  • Their widows and dependents received compensation under that Act.
  • Their estates also sued Marine Services and one of its employees for negligence in the design and construction of the vessel.

Marine Services and its employee argued they could not be sued because of the ”historic trade-off” by which the workers compensation legislation prohibited a lawsuit over a workplace death.  The Supreme Court of Canada agreed:

The WHSCA replaces the tort action for negligence with compensation.  As such, it is distinct from tort law.  Section 44 of the WHSCA provides for the statutory bar that is at the heart of the “historic trade-off”.

A direct employment relationship did not exist between the Ryan brothers and Marine Services at the time of the accident that led to their death.  However, the statutory bar in s. 44 of the WHSCA does not only benefit an “employer” in a direct employment relationship with the injured worker.  Any employer that contributes to the scheme (and any worker of such an employer) benefits from the statutory bar, as long as the worker was injured in the course of his or her employment and injury “occurred … in the conduct of the operations usual in or incidental to the industry carried on by the employer”.  [paragraphs 31 and 41; emphasis added.]

The BC Workers Compensation Act has essentially the same provisions in section 10.  Also, as in Newfoundland and Labrador, the BC Workers Compensation Board is subrogated to the rights of the worker receiving compensation under the Act.  That means the Board can pursue an action in the name of the worker.  But it should not mean the Board can pursue an action against another employer or worker covered by the Act.

Every now and then there are challenges to the “historic trade-off”, but the Marine Services case is the latest affirmation that the principle should hold when an action over a workplace injury, illness or death is brought against an employer or worker covered by the workers compensation scheme.