COURT CASES on WORKER/WORKER DEFENCE to INJURY CLAIM
If you are injured in a motor vehicle accident in British Columbia, it is almost always the case that you can bring a third party injury claim against the at-fault driver. There do exist some circumstances, however, where you may not be entitled to bring a claim for personal injury damages against the at-fault party. Such a situation arises where you and the at-fault motorist are both covered by WorkSafe BC, and were both acting in the course of your employment when the accident occurs. You will be entitled to medical and wage loss benefits, but you have no right to sue for personal injury damages. This prohibition is contained within Section 10 of the Workers’ Compensation Act. The Workers’ Compensation Appeal Tribunal makes the determination as to whether or not there is a “worker/worker” situation. This decision can be subject to judicial review in the Supreme Court, however it is usually quite difficult to succeed on such a motion, given the deference often shown by the Courts to an expertise tribunal.
In Dhanoa v. Trenholme, the Plaintiff was injured as a pedestrian when struck by a motor vehicle. At the time of the accident, she was in a parking lot owned by her employer, and the driver of the vehicle worked for the same employer. The action had been commenced before the decision of the Workers’ Compensation Appeal Tribunal as to whether or not it was a “worker/worker” situation. Once it was determined that it was, the lawyer for the Defendant was successful in getting the action dismissed.
 The case law is clear that merely pleading a s. 10 defence does not itself bar the litigation. The WCAT has the exclusive jurisdiction to determine the “worker vs. worker” issue and the action remains ongoing unless and until the WCAT renders a decision that would bar the action. I am of the view that if the plaintiff does not want the defendant to run up costs in the meantime, the plaintiff is at liberty to make an application for a stay of the proceedings until the Workers’ Compensation Board issue is decided…
 Based on the foregoing review of the relevant authorities, it is clear that the WCAT proceeding is a step within the action which is mandated by legislation. A stay of proceedings pending this step, however, is not automatic when the s. 10 defence is pled: Hommel, at paras. 38 and 46. Therefore, to presume there is a stay and say counsel should not be taking steps for the upcoming action is wrong in law. Unfortunately, the decision in Khare does not appear to consider the authorities that were provided to the Master in the present case and because the decision in Khare was delivered orally without the opportunity to fully consult authority, I am not bound by it: Re Hansard Spruce Mills Ltd.,  4 D.L.R. 590, 13 W.W.R. (N.S.) 285 (B.C.S.C.).
 I am of the view that because each case is unique, it would be wrong to set a blanket rule that a party claiming costs cannot recover on any proceedings initiated by them after a s. 10 Workers’ Compensation Board defence is raised, as it would be too draconian. There may be legitimate reasons to take steps in a proceeding and if those steps are unfair, either party can apply for a stay.
 In the present case, the parties had already punched out from their work when the accident occurred so their employer took the view that they were not ‘workers’ for the purposes of the Act. It was therefore, not clear that the s. 10 defence would be successful in barring the action. Meanwhile, at the time of the examination for discovery and the document requests, there was an approaching trial date set for September 22, 2008. Counsel for the defendant had a duty to properly prepare for that trial in the event that the WCAT rejected the s. 10 argument. The steps taken by the defence were therefore, legitimate and cannot be characterized as unnecessary. Restricting the defendant’s ability to take steps in preparation for trial would unfairly prejudice the defendant.