The Community Legal Assistance Society plans to ask permission of the Supreme Court of Canada to intervene on behalf of participating B.C. injured workers' groups and other injured workers' groups nationally, in an appeal by the B.C. Workers' Compensation Board to the Supreme Court of Canada. The case is Kovach v. Singh. It arises from a malpractice lawsuit, the actual merits of which have never been tried. Ms. Kovach injured her back at work, and underwent surgery by Dr. Singh, who was "employed" by a holding company at the time. He owned the company, which was registered with the W.C.B. as an employer.

Mrs. Kovach felt that the doctor was negligent. When she filed suit in 1989, Dr. Singh asked the Board to rule under s. 10 and s. 11 of the Act that both he and Ms. Kovach were "workers" at the time, and she was therefore prohibited from suing him. The Appeal Division agreed with Dr. Singh, and the Supreme Court of B.C. upheld its decision. The B.C. Court of Appeal has twice ruled in favour of Mrs. Kovach's right to sue. The Court's reasons, however, threaten the right of workers to be compensated for the consequences of negligent medical treatment even if they haven't sued and don't want to do so.

As explained below, none of the existing parties are speaking for the rights and interests of injured workers who don't want to go to court. The Supreme Court of Canada often permits non-parties to an appeal to intervene and make written and oral arguments to ensure that it hears all relevant perspectives on the issues before it. It is hoped that several B.C. injured workers' groups as well as other injured workers' groups nationally, will join in the intervention, which also has implications for workers in other provinces.

As presently planned, the goals of the intervention will be twofold:

1. to persuade the Supreme Court to affirm the right to full benefits even if negligent treatment has caused the worker to suffer an additional disability; and
2. to establish the right of workers such as Mrs. Kovach to sue for malpractice if they choose, and to keep most of the proceeds if they are successful.

None of the current parties to the appeal - Mrs. Kovach, Dr. Singh, the W.C.B., and the Health Employers' Association (which intervened before the Court of Appeal) - are arguing for such a result.

Ms. Kovach will probably pursue the argument that was successful in the Court of Appeal, which is that a negligent operation must be regarded as a "second injury" occurring off the job. While this leaves the worker free to sue the doctor, hospital, and other responsible parties, it also suggests that the harm done by the second injury is non-compensable. The intervention will agree with much of Ms. Kovach's arguments, but will urge the court to confirm that the Board must pay full compensation in all such cases (part of which the Board can recover if the court awards damages for the same losses).

The Board will defend its broad jurisdiction to decide the status of the worker and doctor in such circumstances. It will argue that its decision denying Mrs. Kovach's right to sue was not "patently unreasonable" (the legal test which must be met before a court can overrule a W.C.B. decision).

Dr. Singh (and the Health Employers) will argue that the Board was right, and that workers should not be able to sue for malpractice.

The Judge of the Supreme Court of British Columbia who first heard the case, Huddart J., reluctantly upheld the Board's decision barring the lawsuit in March, 1995, stating in her Reasons that:

The Court of Appeal overturned this decision in December 1996, primarily on the basis that the W.C.B. has no jurisdiction (legal authority) to decide a case where an issue of medical negligence has been raised. This left even workers who had not sued at all in limbo if there was an allegation of malpractice, as the Court seemed to be saying that all the Board should do in such cases was to await a court's ruling on the causes of the worker's condition.

The Supreme Court of Canada was about to hear an appeal from the Pasiechnyk decision of the Saskatchewan courts, which the B.C. Court of Appeal had followed. The Pasiechnyk case concerned a claim by the dependants of several workers killed in a crane accident that the employer, the Saskatchewan government, had negligently failed to inspect the crane properly. The Supreme Court upheld the power of workers' compensation boards to decide such issues. After deciding the Pasiechnyk case, the Supreme Court sent Kovach back to the B.C. Court of Appeal for reconsideration.

The appeal was again heard by the same three justices of the Court of Appeal, and two of them still refused to agree that an "undeserving bug" (a doctor whose treatment of an injured worker has been negligent) should be shielded from a lawsuit by the Act. The majority found that the decision of the W.C.B.'s Appeal Division was "patently unreasonable" because it failed to distinguish between Mrs. Kovach's status as a worker when she originally hurt her back, and her status as a patient when she underwent surgery.

As noted before, the reasoning of the majority in the Court of Appeal appears to mean that the Board cannot pay compensation for the portion of a worker's disability resulting from negligent medical treatment. That was the view of the dissenting justice, Donald J.A., who wrote:

. . . . .

In one of its earliest published policy decisions, the Board concluded that a worker should receive compensation for the adverse consequences of surgery or other treatment, unless the worker acted unreasonably in agreeing to it. If it stands, the Court's latest decision could overturn that policy, and force workers either to forego compensation for negligent treatment, or begin an expensive lawsuit which could still leave them trapped "between the two systems", as Justice Donald suggested. The most important goal of the intervention will be to ensure that this doesn't happen.

Injured workers' groups in B.C. generally want much greater access to the courts than the Act now allows. While it certainly isn't in workers' interests to be denied compensation and forced to sue their doctors in every case where medical negligence may have occurred, workers such as Ms. Kovach should have the option of doing so.

The main argument in the intervention will be that the W.C.B. is called upon to decide two very different questions in cases like this, and that the Board acts illegally if it fails to examine each issue independently according to the required standards. The first question is whether workers should receive compensation for the adverse consequences of medical treatment, whether it is negligent or simply unfortunate. It will be argued that they should, on the basis of the Board's current policy that a condition caused by medical treatment is a compensable consequence of the work injury that led to the treatment, and a worker should be fully compensated for a condition made worse by medical treatment on the basis that it is a compensable result of the original work injury.

The second question is whether the worker should be prevented from suing a negligent doctor for malpractice, if the doctor happens to be a worker or employer covered by the Board. It will be argued that an injured worker is not acting in the course of employment when undergoing an operation or other treatment. Accordingly, the worker is free to decide whether to sue for malpractice or not. If such a suit were successful, the Board would be entitled to recover those benefits which duplicate the damages awarded by the court. The worker could keep the damages awarded for losses for which the Board doesn't compensate, such as pain and suffering.

Organized groups of injured workers which want to participate in the intervention should contact Jim Sayre or Karen Baylis at the Community Legal Assistance Society at (604) 685-3425 for details about the process and an outline of the information needed for the Court.

The deadline for completing and filing the request for intervener status is January 26, 1999.

The Community Legal Assistance Society will also try to answer any questions or concerns of injured workers about the position described above. Given the short time available, comments should be put in writing and sent to the Society

by fax to (604) 685 7611

by mail to #800, 1281 West Georgia St., Vancouver, B.C. V6E 3J7

by email to clas@vancouver.net or to componet@smartt.com

Court File No: 25784

AFFIDAVIT

I, Craig McLachlan, of the municipality of North Vancouver, British Columbia, make oath and say as follows:

1. This affidavit is filed in support of an application by four injured workers' organizations in British Columbia, and by the Ontario Network of Injured Workers Groups, for leave to intervene in this appeal. The applicants were not able to consider the issues and reach a decision in time for the application to be filed within 60 days of the Notice of Appeal, and this affidavit also supports the applicants' request for an extension of time.

2. If granted leave to intervene, the applicants will present argument in support of the following position, to which each of the applicants have subscribed:

An additional injury occurring to a worker while undergoing treatment for a work injury should be regarded under workers' compensation legislation as a compensable consequence of the work injury, whether the additional injury results from negligence, misfortune, or the unavoidable risks of treatment. However, a worker is not acting "in the course of employment" while undergoing surgery or other treatment, and is therefore entitled to sue for negligence or other wrongful conduct during treatment, even if the defendant is an 'employer' or a 'worker' under the Act.

3. I am an injured worker. After 19 years of steady employment as an appliance service technician, I suffered an injury to my left shoulder on May 3, 1989. Over the next two years, I received ongoing treatment, including surgery and cortisone injections. I was left with a disability that causes me constant pain and is likely to worsen with age, according to my doctor. The disability prevents me from regularly pursuing any substantially gainful occupation, and I have therefore received a disability pension from the Canada Pension Plan since 1993. The Board, however, has only awarded me a 5.7% pension, which it claims to be adequate compensation for my loss of earnings by reason of my injury.

4. Throughout my claim, I dealt with numerous adjudicators, managers, and other officers, including senior management. My frustration with the handling of my claim prompted me to develop an internet website known as "CompoNet", in which I provided other injured workers and their advocates with whatever information and assistance I could about their rights, and about developments at the Board and within the workers' compensation system in general.

5. Through my website, I became acquainted with many other workers throughout British Columbia and other provinces, who also felt that they had been treated unjustly by the workers' compensation system. Many of these workers and their family members joined or formed support groups in their own communities.

6. In the spring of 1995, the government announced formation of the Royal Commission on Workers' Compensation in British Columbia. The Commission's mandate included the holding of public hearings throughout British Columbia to provide interested parties, including injured workers, with an opportunity to describe in person their experiences with the Board, and the changes they believed to be needed in the workers' compensation system.

7. In November, 1995, three commissioners were appointed, and staff was hired, and I was asked to act as the commission's liaison with injured workers, including both the organized support groups that existed in various communities, and individuals who might not otherwise trust the commission sufficiently to come forward and relate their experiences to it.

8. In late November, 1997, the Commission decided to ask the Board's executive and senior officers to make presentations describing each major aspect of the compensation system, after which lawyers representing the B.C. Federation of Labour, a coalition of employer groups, and the interests of injured workers would each have an opportunity to question the presenters. These hearings lasted for two full weeks in February and March, 1998. The Commission then completed its public process by hearing comprehensive submissions from the same three counsel during two weeks in April, 1998.

9. The Commission asked James Sayre, of the Community Legal Assistance Society, to represent the interests of injured workers during these four weeks of hearings and submissions. Since 1987, Mr. Sayre has organized the Workers' Compensation Advocacy Group, which consists of more than 200 advocates for injured workers throughout British Columbia, including union representatives, legal aid and volunteer advocates, workers' advisers, and lawyers.

10. From January through April, 1998, I worked closely with Mr. Sayre to develop questions and positions that reflect the interests of injured workers. My website enabled me to keep workers who had private or public access to the internet informed about the hearings, as I posted each day's transcripts and written submissions as soon as they were available.

11. Throughout the entire thirty month long public phase of the Royal Commission, I communicated by telephone, fax, and email with the organized support groups in the province, and have become personally acquainted with the groups' leaders and membership.

12. When I learned that the court had granted the Workers' Compensation Board and Dr. Singh leave to appeal, I felt that the court should hear the perspective of injured workers as well as that of the parties. With the assistance of Mr. Sayre, I contacted the applicant groups and described the issues, the intervention process, and the information we would need about each group in order to apply for intervener status.

Canadian Injured Workers' Prince George

13. I was informed by Patricia Callaghan, organizer of Canadian Injured Workers' Prince George ("C.I.W.P.G.") and honestly believe the following facts and circumstances:

a. She was the founder and President of the Canadian Injured Workers Society, which was formed in 1995 in Prince George, British Columbia. The Respondent, Frances Kovach, was another founding member of that society, which carried on as a registered, non-profit society with 50 local members and approximately 150 associate members in other areas until internal disagreements caused it to cease operating as a society in early 1998.

b. Ms. Callaghan and other members of the former Society have continued to meet and carry on their activities on behalf of injured workers as Canadian Injured Workers' Prince George ("C.I.W.P.G."), an unregistered association.

c. The activities of C.I.W.P.G. include:

i. assisting injured workers with their appeals without charge;

ii. organizing injured workers in the Prince George area;

iii. lobbying government on behalf of injured workers, including presentations before the Royal Commission on Workers' Compensation and the Human Rights Commission; and

iv. working with other groups which share the goals of the C.I.W.P.G.

d. C.I.W.P.G. depends on donations from individuals and organizations, and on local fundraising activities. It receives no government funding.

e. C.I.W.P.G. supports the position set out in paragraph 2 of my affidavit.

Northern Vancouver Island Brain Trauma Society

14. I am informed by Dan Buss, Vice-president of the Northern Vancouver Island Brain Trauma Society ("N.V.I.B.T.S.") and honestly believe the following facts and circumstances:

a. Mr. Buss is a former director of the Comox Valley Head Injury Society, a registered non-profit organization created in 1991 which currently has approximately 100 members. The N.V.I.B.T.S. has recently been organized to cooperate with this and other organizations which further the interests of victims of brain injuries in the whole of northern Vancouver Island, and surrounding region.

b. The N.V.I.B.T.S. is a member of the Brain Injury Ring, a worldwide network of organizations dedicated to assisting people with brain injuries, which largely communicates through the Internet. The N.V.I.B.T.S. has established partnership links with a wide range of businesses, unions, health providers, community organizations, and government institutions on Vancouver Island, all of which help the N.V.I.B.T.S. to assist victims of brain injuries. These partners include the Insurance Corporation of British Columbia, Canadian Tire Foundation, North Island College, Public Trustee, the carpenters, pile drivers, and government employees unions, the Northern Vancouver Island Community Advisory Council, Canadian Pediatric Society, First Nations Emergency Society, North Island Administrators Association (school principals), Health Canada, Ministry of Children and Families, and others.

c. The goals of the N.V.I.B.T.S. are to:

i. support and assist victims of brain injuries, including injured workers;

ii. lobby the public, medical community, labour, and governmental institutions, including the Workers' Compensation Board, to encourage greater awareness of the impact of brain injuries, and the need for better services for those who have suffered them;

iii. provide information and make public presentations to promote safety;

iv. carry on research projects; and

v. promote effective cooperation with other groups which share the Society's goals.

d. The N.V.I.B.T.S. receives donations from individuals and organizations, and also participates in funding which the Comox Valley Head Injury Society receives from the Provincial Head Injury Program.

e. The N.V.I.B.T.S. supports the position set out in paragraph 2 of this affidavit.

United Association of Injured and Disabled Workers

15. I am advised by Ralph Dotzler, President of the United Association of Injured and Disabled Workers ("U.A.I.D.W."), and honestly believe the following facts and circumstances:

a. The U.A.I.D.W. was formed in June, 1993, and Mr. Dotzler has been its President since November 23, 1993. It is an unregistered association of approximately 300 injured workers residing in the Greater Vancouver area. It receives no government or other outside funding, and does not charge injured workers for assisting them with their claims.

b. The U.A.I.D.W. meets frequently. Its activities include:

i. representing and assisting injured workers with their claims and appeals;

ii. lobbying the Board and government on behalf of injured workers;

iii. educating and informing injured workers about their rights; and

iv. cooperating with other groups which share the U.A.I.D.W.'s goals.

c. The U.A.I.D.W. supports the position set out in paragraph 2 of my affidavit.

Vernon Injured Workers Support Group

16. I was informed by Shirley Kachuk, founder and organizer of theVernon Injured Workers Support Group (V.I.W.S.G.), and honestly believe the following facts and circumstances:

a. The V.I.W.S.G. was formed in September, 1996 by Ms. Kachuk, who has organized the group and served as its spokesperson since that time. It is an unregistered association of approximately 75 injured workers residing in Vernon and the surrounding area. It has no government or other outside funding, and does not charge injured workers for assisting them with their claims.

b. The V.I.W.S.G. meets on a monthly basis. Its activities include:

i. informing injured workers about their rights, and assisting them with their claims and appeals;

ii. lobbying the local and provincial government on behalf of injured workers;

iii. publicizing the problems of injured workers through the media; and

iv. cooperating with other groups which share the V.I.W.S.G.'s goals.

c. The V.I.W.S.G. supports the position set out in paragraph 2 of my affidavit.

Extension of Time

17. Injured workers have long called for increased access to the courts, both to resolve disputes concerning their claims and to hold those responsible for their injuries accountable for the suffering they have experienced. When I learned that the court had granted leave to appeal, I worked with James Sayre to inform the applicants about the appeal, and the benefits and harm that could result from the outcome. The events and factors listed below caused delay, and we were unable to submit this application by January 26, 1999, as required by the rules. Accordingly, the applicants request an extension of time.

a. The groups are based in many different parts of the province, and no funds were available to make it possible for us to discuss the intervention with them in person.

b. Mr. Sayre was away from his office due to a death in his family in early December. When he returned, other urgent work prevented him from preparing a detailed analysis of the issues and options for the applicants until the end of December.

c. The holiday season made it more difficult to reach some people, and for the groups to meet and reach a decision.

d. The main attention of the applicants and their members was focused for a considerable period of time on the final report of the Royal Commission, both before and after the report was released on January 20, 1999. The Commission had granted injured workers an unprecedented status, especially in the final four weeks of hearings and submissions, and hopes were high that the report would result in major gains. Instead, the Commission recommended drastic reductions in benefits, and severely weakened the appeal system. The groups needed time to digest these results and overcome their disappointment before they could again focus on these proceedings.

e. None of the British Columbia groups have previously participated in legal proceedings in their own right, and they needed time to understand the role of interveners, and the information needed in order to make the application.

18. The applicants apologize for the delay in submitting their application, and wish to assure the court that it will not affect the preparation of their factum or otherwise delay the hearing of this appeal, if their application for leave to intervene should be granted.

SWORN BEFORE ME at the City )

of Vancouver in the Province of British )

Columbia this 12th day of February, 1999. ) _________________________

) Craig McLachlan

____________________________ )

A Commissioner for taking Affidavits )

in the Province of British Columbia )

Court File No: 25784

IN THE SUPREME COURT OF CANADA

(On Appeal from the Court of Appeal for the Province of British Columbia)

BETWEEN:

The Workers' Compensation Board of British Columbia

and

G.S. Singh

APPELLANTS

AND:

Frances Elizabeth Kovach

RESPONDENT

----------------------------------------------------------------------------------------------------------------

AFFIDAVIT

------------------------------------------------------------------------------------------------------------------

Community Legal Assistance Society

800 - 1281 West Georgia Street

Vancouver, British Columbia

V6E 3J7

James Sayre, Solicitor for the Respondent

Tel: (604) 685-3425

Fax: (604) 685-7611

File no. 25784

Respondent

Affidavit of Karl Crevar

I Karl Crevar of the City of Hamilton, in the Regional Municipality of Hamilton-Wentworth, MAKE OATH AND SAY:

1. I am the president of the Ontario Network of Injured Workers' Groups and have been the president since 1991. As such I have knowledge of the matters that I am deposing to.

2. The Ontario Network of Injured Workers' Groups (hereinafter "the Network") has been in existence since 1991. Originally the Network was an unincorporated group. It was incorporated in November 21, 1994 as a non-profit corporation.

3. Membership in the network consists of injured worker groups. Individual injured workers may belong to a local injured worker group. A local injured worker group can apply for membership in the network; upon showing that it does not charge money for representing injured workers and upon showing that a group is democratically organized, a local injured worker group will become a member of the Network. We have member groups in 30 communities in Ontario that span from Kenora and Timmins in the North to Cornwall in the East and Windsor in the Southwest.

4. Individual member groups can, and many do, represent injured workers in their appeals before the Workplace Safety and Insurance Board and the Workplace Safety and Insurance Appeals Tribunal.

5. Currently the Network is funded by a grant from the Provincial government.

6. The network's goal is to help injured workers and their families in obtaining justice for injured workers. We attempt to achieve this goal by educating injured workers about their rights under the Workplace Safety and Insurance Act; by assisting local groups in organizing themselves; by entering into coalitions with other organizations that are interested in the rights of injured workers; and most importantly by lobbying both the government and the Workplace Safety and Insurance Board to change the law and policies respecting injured workers.

7. There are numerous examples of the network's lobbying efforts.

a) The network has met with the various ministers of labour since Bob MacKenzie was the minister.

b) The network has presented briefs before the Ontario Legislature with respect to changes to Workers' Compensation Legislation. We have done this with each proposed change to the legislation since 1991.

c) The network has frequently met with Board officials with respect to Board policy and its impact on injured workers. We have met with each and every Chair of the Board since Odoardo DiSanto was the chair in the early 90's.

d) From 1991 until 1994 the secretary of the Network, Steve Mantis actually sat on the Board of Directors of the Workers' Compensation Board as the injured workers' representative

8. The Network also attempts to educate the public about the plight of injured workers in Ontario. Our annual conferences always have an educational component to them. We also organize demonstrations to publicize our concerns. June 1 has been Injured Workers Day since 1984; the Network takes a large part in organizing the annual demonstration before Queen's Park. The Network also organizes ad hoc demonstrations as necessary.

9. The Network works in coalition with other groups that share our commitment to justice for injured workers. The Network has a good working relationship with the Ontario legal clinics and it works regularly with the Ontario Federation of Labour.

10. The Network feels that it is the only province wide group that concentrates on issues affecting injured workers. While other provincial organizations spend a portion of their time and resources with injured workers' issues, we spend all of our time and resources on these issues. We also make no distinction between the needs of unionized and non-unionized injured workers.

11. On January 31, 1999, the Network's Board of Directors decided to ask this honourable court for leave to intervene in this appeal because the Court's decision may have a substantial impact on injured workers in the province of Ontario. While the case involves British Columbia Workers Compensation legislation, s. 26 - 31 of Ontario's Workplace Safety and Insurance Act, 1997 also extinguish an injured worker's right of action against all employers or workers who fall under the main insurance provisions of the Act.

12. In the Network's submission, should this honourable court uphold the decision under appeal for the reasons given by the majority in the British Columbia Court of Appeal, Ontario courts would likely find that a worker who suffers further injury due to negligent medical treatment for a compensable work injury would not be entitled to workers' compensation benefits for that additional injury. If the worker did not wish to sue or could not find the resources to do so, he or she would have no remedy.

13. If, on the other hand, this honourable court should allow the appeal for the dissenting reasons given by Mr. Justice Donald in the Court of Appeal or for the reasons given by Madame Justice Huddart in the Supreme Court of British Columbia, Ontario courts would likely find that a worker who suffers further injury due to negligent medical treatment for a compensable work injury would be prohibited from suing a doctor or other responsible person who was an employer or worker covered by the Ontario legislation.

14. If permitted to intervene, it will be the Network's submission that either of these results would be unfair to injured workers, and would violate the fundamental intent of workers' compensation legislation. An additional injury occurring to a worker while undergoing treatment for a work injury should be regarded by the Workplace Safety and Insurance Board as a compensable consequence of the work injury, whether the additional injury results from negligence, misfortune, or the unavoidable risks of treatment. However, such a worker is not acting "in the course of employment" while undergoing the surgery or other treatment, and therefore should not be prohibited from suing a negligent doctor or other person, even if that person is an employer under Schedule 1 of the Act or a worker employed by a Schedule 1 employer.

15. The Ontario Network of Injured Workers' Groups is the only province-wide organization that in the province that can provide the court with this broad perspective concerning the impact of this appeal on the rights of all injured workers who suffer further injury due to negligent medical treatment, whether or not they would choose to sue the negligent party.

16. I make this application for the purpose of supporting the Network's motion for leave to

Sworn before me in the city of )

Hamilton, in the regional )

Municipality of Hamilton-Wentworth)

this , day of february, 1999 )

__________________________________ ______________________________

Andrew C. Bomé Karl Crevar

Barrister & Solicitor

Court File No: 25784

THE APPLICATION FOR LEAVE TO INTERVENE

PART I

STATEMENT OF FACTS

1. This is an application by four injured workers groups from British Columbia, and by the

Ontario Network of Injured Workers Groups, for leave to intervene in this appeal.

2. The applicants are fearful that the outcome of this appeal could deprive them of rights and

benefits to which they should be entitled if they suffer the additional misfortune of receiving

negligent medical treatment while seeking to recover from a compensable work injury. They

will present a legal argument based on a perspective that is significantly different from the

other parties and from the intervening workers' compensation boards.

3. Canadian Injured Workers Prince George ("C.I.W.P.G.") is an unregistered association of

injured workers based in the Prince George area of British Columbia. The C.I.W.P.G.

operates with donations from individuals and local businesses, and receives no government

funding.

4. The Northern Vancouver Island Brain Trauma Society ("N.V.I.B.T.S.") was recently created

to advance the interests of people with head injuries, including injured workers, throughout

northern Vancouver Island and the surrounding region. The N.V.I.B.T.S. has established

partnership links with a wide range of businesses, unions, health providers, community

organizations, and government institutions on Vancouver Island. It is supported by

donations, receives funding indirectly from the Provincial Head Injury Program. In addition

to the activities carried on by the other British Columbia groups, the N.V.I.B.T.S. works to

encourage greater awareness of the impact of brain injuries, and the need for better services

for those who have suffered them. It also makes presentations to promote safety, and carries

on some research projects.

5. The United Association of Injured and Disabled Workers ("U.A.I.D.W.") is an unregistered

association of approximately 300 injured workers residing in the Greater Vancouver area.

It was formed in June, 1993, has no government or other outside funding, and does not

charge injured workers for assisting them with their claims.

6. The Vernon Injured Workers Support Group (V.I.W.S.G.), was formed in September, 1996.

It is an unregistered association of approximately 75 injured workers residing in Vernon and

the surrounding area. It has no government or other outside funding, and does not charge

injured workers for assisting them with their claims.

7. The activities of all of these injured workers' groups include

a. providing information to injured workers about their rights;

b. assisting injured workers with their claims and often providing volunteer

representation for them at appeals;

c. lobbying the local and provincial governments on behalf of injured workers;

d. publicizing the problems of injured workers through the media; and

e. cooperating with other organization which share their goals.

8. The Ontario Network of Injured Workers' Groups ("the Network") is a non-profit umbrella

network for injured worker groups that was formed in 1991. The Network has member

groups in 30 communities in all parts of Ontario, and is supported by a grant from the

Ontario government. Its activities include educating injured workers about their rights,

assisting local groups to organize, cooperating with other organizations that support injured

workers and lobbying the government and the Workplace Safety and Insurance Board on

behalf of injured workers. Since 1991 the Network has met with the various ministers of

labour, presented briefs before the Ontario Legislature, and met frequently with Board

officials. From 1991 until 1994 the secretary of the Network, Steve Mantis was the injured

workers' representative on the Board of Directors of the Workers' Compensation Board.

9. While this appeal involves British Columbia's legislation, s. 26 - 31 of Ontario's Workplace

Safety and Insurance Act, 1997 also extinguish an injured worker's right of action against

all employers or workers who fall under the main insurance provisions in Part I of the Act.

The Network believes that an additional injury occurring to a worker while undergoing

treatment for a work injury must be recognized by the Board as a compensable consequence

of the initial work injury, whether the additional injury results from negligence, misfortune,

or the unavoidable risks of treatment. However, a worker is not acting "in the course of

employment" while undergoing the surgery or other treatment, and therefore should not be

prohibited from suing a negligent doctor or other person, even if that person is an employer

under Schedule 1 of the Act or a worker employed by a Schedule 1 employer.

PART II

ISSUES ON APPLICATION

10. The issue for consideration is whether the Applicants should be granted leave to intervene.

PART III

ARGUMENT

Principles for Granting Intervener Status

11. The power of this Court to grant interventions stems from Rule 18 of the Rules of the

Supreme Court of Canada. The Court has authority to permit interventions to aid in the

resolution of issues which can have a broad social impact on groups beyond the interests of

the parties. In Canadian Council of Churches v. Canada (MEI) [1992] 1 S.C.R. 236 at p.256,

this Court stated that:

....public interest organizations are, as they should be, frequently granted

intervener status. The views in submissions of interveners on issues of public

importance frequently provide great assistance to the courts.

12. The "interest" in the outcome of the proceedings means something other than the interest that

someone applying for added party status must demonstrate. In Re Workers' Compensation

Act, 1986 S. Nfld. (1989) 2 S.C.R. 35, this Court affirmed that "any interest is sufficient" to

overcome the threshold of this aspect of the test.

13. If the applicant can demonstrate a genuine interest in the case, bring a different perspective,

and make a useful submission to the Court on the issues raised, the application may be

granted: MacMillan Bloedal Limited v. Mullin et al. (1985) 66 B.C.L.R. 207 (B.C.C.A.)

Justification for Granting Intervener Status to Injured Workers Groups

14. Injured workers are the very reason for the existence of workers' compensation legislation.

The plight of injured workers and their families led to creation of workers' compensation

boards throughout the Western world in the late 19th and early 20th century, at a time when

social welfare legislation did not exist, and when administrative tribunals were in their

infancy. However, workers' compensation legislation has not guaranteed injured workers

just treatment when they suffer injuries at work. The recently concluded Royal Commission

in British Columbia, and widespread opposition by workers to amendments in many other

provinces in recent years, attest to the continuing controversy which workers' compensation

engenders and to the inability of Canadian provincial governments to find a legislative

formula which enjoys widespread support from all those affected by the system.

15. As groups representing large numbers of injured workers, nearly all of whom have received

medical care for their injuries, the applicants will present a different and valuable perspective

concerning the issue under appeal: whether statutory immunity from lawsuits extends to

doctors or others who wrongfully cause the worker further injury during an operation or

other treatment, and whether the Board is required to pay compensation for the additional

disability.

The Rationale for the Bar to Actions Does Not Apply

16. The issue in this appeal is the lawfulness of the ruling by the Appeal Division of the Board

that would extend to doctors and others treating injured workers an absolute immunity from

lawsuits for negligence or other tortious conduct. The legislation already denies an injured

worker the right to sue either his or her own employer, or any other worker or employer

included in the workers' compensation system, for an injury or death arising out of and in

the course of the employment. The bar has been justified as necessary component of the

"historical compromise" which led to enactment of early workers' compensation acts in

Ontario, British Columbia, and other provinces.

17. Mr. Justice Sopinka writing for the majority in Pasiechnyk, noted that worker's

compensation schemes are based on four fundamental principles:

a. compensation paid to injured workers without regard to fault;

b. injured workers should enjoy security of payment;

c. administration of the compensation schemes and adjudication of claims handled by

an independent commission, and

d. compensation to injured workers provided quickly without court proceedings.

He continued:

I would note that these four principles are interconnected. For instance,

security of payment is assured by the existence of an Injury Fund that is

maintained through contributions from employers and administered by an

independent commission, the Workers' Compensation Board. The principle

of quick compensation without the need for court proceedings similarly

depends upon the fund and the adjudication of claims by the Board. The

principle of no-fault recovery assists the goal of speedy compensation by

reducing the number issues that must be adjudicated. The bar to actions is

not ancillary to this scheme but central to it. If there were no bar, then

the integrity of the system would be compromised as employers sought

to have their industries exempted from the requirement of paying

premiums toward an insurance system that did not, in fact, provide then

with any insurance. [emphasis added]

18. The applicant groups submit that this rationale cannot justify extending the bar to protect

doctors whose negligent conduct has caused further injury to the worker. When undergoing

treatment, a worker is a patient, and should benefit from the same duty of care and the same

right of informed consent as any other patient. Doctors do not pay assessments to the Board

based on the wages of the injured workers they treat; they pay assessments, like other

employers, based on the wages of their employees, and in some cases (such as these

proceedings) their own "wages". I.e., the risk for which they are purchasing insurance is the

risk of their employees (and perhaps themselves) sustaining an injury or contracting a disease

during and caused by their employment. Permitting an injured worker such as Mrs. Kovach

to sue for negligent or unauthorized treatment in no way jeopardizes the protection for which

doctors pay assessments.

The Position of the Applicants

19. The applicants recognize that in many cases workers whose treatment has make their

condition worse may be unable to prove negligence, or to afford a lawyer, or may simply not

want to undertake a lawsuit. For these workers, it is crucial that the Board be required to

provide full workers' compensation benefits for their disability, despite the possibility that

it was enhanced by negligent treatment.

20. If this honourable court should uphold the decision under appeal for the reasons given by the

majority in the Court of Appeal, the Workers' Compensation Board in British Columbia,

Ontario, and other provinces with similar provisions would likely find that a worker who

suffers further injury due to negligent treatment for a compensable work injury would not

be entitled to workers' compensation benefits for that additional injury. If such a worker did

not wish to sue or could not find the resources to do so, he or she would have no remedy for

the additional loss.

21. If, on the other hand, this honourable court should allow the appeal and uphold the

reasonableness of the decision of the Appeal Division of the Workers' Compensation Board,

workers who suffer further injuries due to negligent medical treatment for a compensable

work injury would be prohibited from suing the doctor or other responsible person, as in

British Columbia nearly all such potential defendants will be either workers or employers

covered by the Act. The statutory bar would be automatic, and absolute, even if the

defendant committed an intentional wrong such as battery, or was guilty of gross negligence.

22. The applicants submit that either of these results would be unfair to injured workers, and

would violate both the specific language and the fundamental principles of workers'

compensation.

23. They will submit that any additional injury occurring to a worker who is undergoing

treatment for a work injury can and should be regarded by the Board as a compensable

consequence of the initial work injury, whether the additional injury results from negligence,

misfortune, or the unavoidable risks of treatment.

24. However, they will submit that such a worker cannot reasonably be found to have been

acting "in the course of employment" within the meaning of s. 11(b) while undergoing the

surgery or other treatment. Accordingly, such a worker would not be prohibited by s. 10

from suing the parties responsible for the negligent treatment.

25. It may appear that the position of the applicants would result in an injured worker receiving

double compensation for some aspects of their injuries. This need not be the case. The

principles of trust law and damages in tort are sufficiently flexible to enable a court to require

that any damages in a malpractice action which duplicate the workers' compensation benefits

be paid to the Board rather than the worker. Should the court grant leave, this issue will be

addressed in detail in the applicants' factum.

Misinterpretation of the Legislation

26. The applicants submit that neither the Appeal Division, nor the Supreme Court or Court of

Appeal of British Columbia have properly interpreted the provisions that are central to the

determination which the Appeal Division was required to make under s. 11 of the Act.

27. The relevant provisions are set out in Schedule A to this Memorandum of Argument.

28. Section 5(1), 10(1), and 11(b), all contain the phrase "injury ... arising out of and in the

course of employment..." In s. 5(1), this phrase defines the injuries which can give rise to

a workers' compensation claim, while in s. 10(1) it defines the injuries for which the worker

is barred from suing his own employer, or any other employer or worker within the scope

of Part I of the Act. Section 11(b) authorizes the Board to certify whether such an injury has

taken place, if requested by the court or a party to a court proceeding. Section 96(1)(a)

confirms that such a decision is within the Board's exclusive jurisdiction, if it does not

unreasonably interpret the law.

29. Section 5(4) provides that:

(4) In cases where the injury is caused by accident, where the accident arose

out of the employment, unless the contrary is shown, it must be presumed

that it occurred in the course of the employment; and where the accident

occurred in the course of the employment, unless the contrary is shown, it

must be presumed that it arose out of the employment.

30. This provision removes any possible doubt as to whether "arising out of ... employment" is

a separate requirement from "arising ... in the course of employment..." The rebuttable

presumption created by s. 5(4) assists those workers injured by "accident" to establish the

second branch of the test. In all cases, however, both branches much be met.

31. Nothing in the language of s. 10(1), or s. 11(b) suggests that this phrase bears a different

meaning in those provisions than it does in s. 5. In fact, the Appeal Division decided as much

in its decision of October 6, 1993, where it wrote:

The broad definition given to that phrase for the purposes of Section 5(1)

must carry through into Section 11. There is no reason to assume that the

legislature intended them to be interpreted differently. [W.C. Reporter,

p. 609]

32. The applicants submit that the Appeal Division was therefore required by the request of Dr.

Singh to determine pursuant to s. 11(b) whether both of these two tests were met; i.e.,

whether the additional disability which Mrs. Kovach alleged to have been caused by

negligence on the part of Dr. Singh

a. arose out of her employment; and

b. arose in the course of her employment.

33. The Appeal Division, however, did not examine these questions separately at all. Mrs.

Kovach argued that she was not a worker at the time of her operation, and directed the panel

to a very significant addendum to Decision 152, which was decided by the Commissioners

of the Board on November 6, 1975, and which is quoted almost verbatim in the Board's

policy manual. In the final paragraph of that decision, the 1975 Commissioners stated:

Where a subsequent injury within the scope of this directive is accepted as

compensable, it is not accepted on the ground that the injury is one arising

out of and in the course of the employment. It is accepted on the ground that

the subsequent injury is a compensable consequence of the original injury.

Thus the provisions of Section 10 might not apply to any tort claim arising

out of the subsequent injury.

In the body of Decision 152, the Commissioners had clearly defined "subsequent injury" to

include circumstances such those facing Mrs. Kovach:

Where a further injury arises as a direct consequence of treatment for a

compensable injury, the further injury is also compensable. For example, if

a worker is undergoing surgery for a compensable injury and some mishap

in the process of surgery cause further injury, that is also compensable.

34. Despite having their attention directed to this distinction which was recognized by Professor

Ison and the other 1975 Commissioners, the Appeal Division noted that the last paragraph

had not been reproduced in the Board's policy manual, and apparently felt that this meant

that they did not have to address the issue which it raises. They failed to consider the two-

part test set out in s. 11(b) and s. 10(1), and instead decided the case on the assumption that

any subsequent injury which is a "direct consequence" of a compensable work injury

automatically arises out of and in the course of the original employment:

An original injury which arose out of and in the course of employment is

both compensable under Section 5(1) and gives rise to a certificate under

Section 11 which can result in a legal action being barred. It follows that the

same must be said for the direct consequences of that injury which gave

rise to further entitlement to compensation. The worker is undergoing

treatment because of a work injury. Exposure to the risk of further injury

during that treatment is due to having suffered the work injury. Otherwise, the

worker would not be undergoing the medical treatment. There is a direct

causal link between the two injuries. The risk in treatment is part of the

original compensable injury for the purposes of compensation under Section

5(1) of the Act. We find that it is also part of the compensable injury for the

purposes of Section 11. That is, the direct consequences of a compensable

injury also arise out of and in the course of employment. [W.C.R., p. 608-

9, emphasis added]

35. The 1975 Commissioners had correctly recognized that the Board's authority to pay

compensation for the consequences of a work injury does not depend on the worker being

able to prove that each such consequence meets the two test in s. 5(1). It is the injury which

gives rise to a claim, not its compensable consequences, that must arise both out of and in

the course of the worker's employment.

36. The Board's jurisdiction to determine what compensation will be paid for the consequences

of a work injury is set out in s. 22, 23, 29 and 30 of the Act, and confirmed in s. 96(1)(b-e).

37. Sections 22, 23, 29, and 30 all provide for benefits "where ... disability results from the

injury", while s. 96(1)(b) requires the Board to determine "the existence and degree of

disability by reason of an injury". Both of these phrases are solely concerned with the

existence of a causal link between the injury (not the worker's "employment") and the

disability in question.

38. In other words, the 1975 Commissioners were right in suggesting that the test for determining

whether a subsequent injury is a compensable consequence of a work injury is quite different

from the test under s. 5(1), etc., which determines whether the subsequent injury would be

accepted as a new claim in its own right, and hence, whether the bar to litigation in s. 10(1)

would be applicable.

39. To be compensable, the Act simply requires that there be a causal connection between the

original injury and the subsequent one. Board policy, reflected in Decision No. 152 and in

the Manual at paragraph 22.11, is that such a causal connection exists between the

consequences of medical treatment and the work injury for which the treatment was

undertaken. In the words of the Appeal Division, there is a "direct causal link" between the

risks of treatment and the initial injury. Therefore, the applicants submit that compensation

for the adverse consequences of treatment not only can be paid (contrary to the view of the

Court of Appeal), but must be paid pursuant to the Act.

40. The Appeal Division, however, completely lost sight of the separate, two-part test in s. 5(1),

10(1), and 11(b) and in the process ignored that requirement that it determine not only

whether any injury occurring during surgery "arose out of employment" , but also whether

it arose "in the course of employment".

41. Indeed, the Appeal Division appears to have assumed that only one branch of the two-part

test needed to be satisfied, in effect interpreting the legislation as if it read "... arising out of

or in the course of employment".

It may be difficult to say that an injured worker who is undergoing an

operation miles from her place of employment is still in the course of her

employment. It is less difficult, however, to characterize the operation as

arising out of such employment. [W.C.R., p. 608]

42. The statement appears as part of the central explanation of the Appeal Division's conclusion,

in which the panel clearly (and wrongly) assumed that it had to find that a worker was acting

in the course of employment in order to validate the Board's policy that compensation be

payable for any adverse consequences of medical treatment:

As noted by counsel and seen in such cases as Smith v. Vancouver General

Hospital (1981), 31 B.C.L.R. 358 (C.A.), the Board apparently has routinely

determined in the past that, when an injured worker's condition was made

worse during treatment for a compensable injury, the worker was still a

worker and the subsequent injury arose out of and in the course of

employment....

That approach appears to fit more closely the intent of the Act than the

interpretation suggested by the plaintiff...

The important issue in workers' compensation is whether the injured worker

should be covered for any subsequent injury arising from the treatment. The

Board has decided, properly in our view, that these subsequent injuries are

compensable if they are a direct consequence of treatment for a compensable

injury...

43. Thus, the Appeal Division's decision resulted from its failure to recognize that the Board's

statutory authority to pay compensation for the disability caused by a compensable work

injury arises out the test in s. 22, 23, 29 and 30, which only concerns the causation of the

disability, and does not require a determination that each compensable consequence arise in

the course of employment.

44. The panel's mistaken interpretation of the Act led it to ignore the actual requirements of s.

11(b), in order to achieve what it considered to be the "important" result that workers receive

compensation for injuries arising out of treatment. The applicants agree that this it is indeed

important - in fact, crucial - that this occur, but submit that this does not require that workers

be artificially and unreasonably deemed to be "in the course of employment" while lying on

an operating table, in some cases years after their actual employment ended.

45. The Supreme Court of British Columbia upheld the Appeal Division's decision, on the

footing that it was not "patently unreasonable". In the decision under appeal, the majority

in the Court of Appeal disagreed, and ordered the Appeal Division to reconsider its decision.

Like the Appeal Division, however, both of the courts below also erred by referring to s. 5(1),

rather than s. 22, 23, 29 and 30 as the source of the Board's jurisdiction to determine what

conditions resulting from an injury are compensable.

Liability in Tort Protects Workers' Safety

46. The applicants also submit that the position of the Board and Dr. Singh, if vindicated in this

appeal, would leave them uniquely vulnerable to negligence, battery, and other wrongful

conduct when undergoing medical treatment for their work injuries. If the Appeal Division

is right, the doctor is absolutely immune from legal action for any additional harm caused by

the treatment. However, the doctor is also immune from the usual consequences and

sanctions imposed by workers' compensation legislation for causing injuries.

47. While the Board does not directly determine whether an employer is at fault for an injury to

a worker, it does regulate most workplaces and can impose penalties for unsafe practices

which violate the applicable regulations. It has never, however, regulated the competence of

doctors in the treatment of their patients, and probably does not have the legal authority to

do so.

48. Under the "experience rating" scheme in British Columbia and other provinces, an employer

is automatically assessed an additional amount to cover in part the cost of a work injury. The

increased assessment is considered by both the Board and the employer community to be

a necessary element of accident prevention. As described by the Royal Commission:

Experience rating is meant to provide a financial incentive for employers to

invest in workplace safety (thereby reducing the firms injury profile) and

encourage safe return to work (thereby reducing the cost of claims).

Experience rating is also a mechanism for promoting equity among

employers within a subclass by reducing the extent to which employers with

good claims experience subsidize the industry's poor performers.

49. In circumstances such as these, however, experience rating does not work. If the cost of the

claim is increased due to improper treatment, the worker's actual employer rather than the

doctor might be assessed an additional cost. In the absence of liability in tort, a doctor would

risk no financial consequences of any kind for improperly treating an injured worker.

PART 1V

NATURE OF ORDER SOUGHT

50. The applicants request an order that:

(a) They be granted leave to intervene in this appeal, upon the terms that the Applicants

may be represented by counsel, file a factum and present oral argument up to 30

minutes at the hearing of the appeal; and upon other conditions as this honourable

Court may determine; and

(b) The applicants have delivered to their counsel the Notice of Appeal, Appeal Books

and other materials filed on this appeal so that counsel may prepare the factum of the

Applicants/Interveners.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated: February 12, 1999

Counsel for the Applicants

Table of Authorities

Legislation Page(s)

(Ontario) Workplace Safety and Insurance Act, 1997, s. 26 - 31 ........ 3

Workers' Compensation Act, s. 1, 5, 10, 11, 22, 23, 29, 30, 96throughout

Cases

Canadian Council of Churches v. Canada (MEI) [1992] 1 S.C.R. 236 ...... 4

Re Workers' Compensation Act, 1986 S. Nfld. (1989) 2 S.C.R. 35...... 4

MacMillan Bloedal Limited v. Mullin et al. (1985) 66 B.C.L.R. 207 (B.C.C.A.)..... 4

Pasiechnyk v. Saskatchewan (Workers' Compensation Board), S.C.C. ... 6

Decisions of the Appeal Division of the Workers' Compensation Board

Decision No. 152, November 6, 1975 [copy enclosed for convenience] .... 10

Decision No. 93-1399, October 6, 1993 [initial decision in these proceedings;

copy enclosed for convenience] .... 10 - 14

Appendix A

Workers' Compensation Act of BritishColumbia

Definitions

1 In this Act:

"accident" includes a wilful and intentional act, not being the act of the worker, and also includes a fortuitous event

occasioned by a physical or natural cause;

"accident fund" means the fund provided for the payment of compensation, outlays and expenses referred to in section 36;

"board" means the Workers' Compensation Board;

"compensation" includes health care;

"construction" includes reconstruction, repair, alteration and demolition;

"consumer price index" means the Consumer Price Index for Canada published by Statistics Canada under the Statistics Act

(Canada);

"dependant" means a member of the family of a worker who was wholly or partly dependent on the worker's earnings at the

time of the worker's death, or who but for the incapacity due to the accident would have been so dependent, and, except in

section 17 (3) (a) to (h), (9) and (13), includes a spouse, parent or child who satisfies the board that he or she had a reasonable

expectation of pecuniary benefit from the continuation of the life of the deceased worker;

"employer" includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express

or implied, a person engaged in work in or about an industry;

"employment", when used in Part 1, means and refers to all or part of an establishment, undertaking, trade or business within

the scope of that Part, and in the case of an industry not as a whole within the scope of Part 1 includes a department or part

of that industry that would if carried on separately be within the scope of Part 1;

"health care", when used in Part 1, includes the things which the board under this Act is empowered to provide for injured

workers;

"industry" includes establishment, undertaking, work, trade and business;

"invalid" means physically or mentally incapable of earning;

"invalid child" includes a child who, though not an invalid at the date of death of the worker, becomes an invalid before

otherwise ceasing to be entitled to compensation;

"manufacturing" includes making, preparing, altering, repairing, renovating, servicing, dyeing, cleaning, ornamenting,

printing, finishing, packing, packaging, assembling the parts of and adapting for use or sale any raw material, goods, article

or commodity;

"member of family" means wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter,

grandson, granddaughter, stepson, stepdaughter, brother, sister, half brother and half sister and a person who stood in loco

parentis to the worker or to whom the worker stood in loco parentis, whether related to the worker by consanguinity or not;

"metalliferous mining industry" includes the operations of milling and concentrating, but does not include any other operation

for the reduction of minerals;

"occupational disease" means any disease mentioned in Schedule B, and any other disease which the board, by regulation

of general application or by order dealing with a specific case, may designate or recognize as an occupational disease, and

"disease" includes disablement resulting from exposure to contamination;

"outworker" means a person to whom articles or materials are given out to be made up, cleaned, washed, altered, ornamented,

finished, repaired or adapted for sale in his or her own home or on other premises not under the control or management of the

person who gave out the articles or materials;

"person" includes, for the purpose of section 10, his or her personal representative;

"physician" means a person registered under the Medical Practitioners Act;

"president" means the president and chief executive officer appointed under section 84;

"qualified practitioner" means a person registered under the Chiropractors Act, the Dentists Act, the Naturopaths Act or the

Podiatrists Act;

"regulations" means rules and regulations made by the board under this Act;

"review board" means the Workers' Compensation Review Board continued under section 89;

"specialist" means a physician residing and practising in the Province and listed by the Royal College of Physicians and

Surgeons of Canada as having specialist qualifications;

"worker" includes

(a) a person who has entered into or works under a contract of service or apprenticeship, written or oral, express

or implied, whether by way of manual labour or otherwise;

(b) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to

the hazards of an industry within the scope of Part 1 for the purpose of undergoing training or probationary work

specified or stipulated by the employer as a preliminary to employment;

(c) when serving a municipality, an urban area, an improvement district or a regional district under the Municipal

Act, a board of school trustees, a library board, a parks board, the city of Vancouver or a board or commission

having the management or conduct of work or services on behalf of a municipality, urban area, improvement

district, regional district, board of school trustees, library board, parks board or the city of Vancouver, a member

of a fire brigade or an ambulance driver or attendant working with or without remuneration;

(d) in respect of the industry of mining, a person while the person is actually engaged in taking or attending a

course of training or instruction in mine rescue work under the direction or with the written approval of an

employer in whose employment the person is employed as a worker in that industry, or while, with the knowledge

and consent of an employer in that industry, either express or implied, he or she is actually engaged in rescuing

or protecting or attempting to rescue or protect life or property in the case of an explosion or accident which

endangers either life or property in a mine, and this irrespective of whether during the time of his or her being so

engaged the person is entitled to receive wages from the employer, or from any employer, or is performing the

work or service as a volunteer;

(e) further, in respect of the industry of mining, a person while he or she is engaged as a member of the inspection

committee, appointed or elected by the workers in the mine, to inspect the mine on behalf of the workers;

(f) an independent operator admitted by the board under section 2 (2); and

(g) a person deemed by the board to be a worker under section 3 (6).

Compensation for personal injury

5 (1) Where, in an industry within the scope of this Part, personal injury or death arising out of and in the course of the

employment is caused to a worker, compensation as provided by this Part must be paid by the board out of the accident fund.

(2) Where an injury disables a worker from earning full wages at the work at which the worker was employed, compensation

is payable under this Part from the first working day following the day of the injury; but a health care benefit only is payable

under this Part in respect of the day of the injury.

(3) Where the injury is attributable solely to the serious and wilful misconduct of the worker, compensation is not payable

unless the injury results in death or serious or permanent disablement.

(4) In cases where the injury is caused by accident, where the accident arose out of the employment, unless the contrary is

shown, it must be presumed that it occurred in the course of the employment; and where the accident occurred in the course

of the employment, unless the contrary is shown, it must be presumed that it arose out of the employment.

(5) Where the personal injury or disease is superimposed on an already existing disability, compensation must be allowed only

for the proportion of the disability following the personal injury or disease that may reasonably be attributed to the personal

injury or disease. The measure of the disability attributable to the personal injury or disease must, unless it is otherwise shown,

be the amount of the difference between the worker's disability before and disability after the occurrence of the personal injury

or disease.

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.

(2) Where the cause of the injury, disablement or death of a worker is such that an action lies against some person, other than

an employer or worker within the scope of this Part, the worker or dependant may claim compensation or may bring an action.

If the worker or dependant elects to claim compensation, he or she must do so within 3 months of the occurrence of the injury

or any longer period that the board allows.

(3) Where the board is satisfied that due to the worker's physical or mental disability a worker is unable to exercise his or her

right of election, and undue hardship will result, it may pay the compensation provided by this Part until the worker is able

to make an election. If the worker then elects not to claim compensation, no further compensation may be paid, but the

compensation so paid is a first charge against any sum recovered.

(4) An application filed by a parent, guardian or the Official Guardian for compensation for the infant child of a deceased

worker is a valid election on behalf of that child.

(5) If after trial, or after settlement out of court with the written approval of the board, less is recovered and collected than the

amount of the compensation to which the worker or dependant would be entitled under this Part, the worker or dependant is

entitled to compensation under this Part to the extent of the amount of the difference.

(6) If the worker or dependant applies to the board claiming compensation under this Part, neither the making of the application

nor the payment of compensation under it restricts or impairs any right of action against the party liable, but as to every such

claim the board is subrogated to the rights of the worker or dependant and may maintain an action in the name of the worker

or dependant or in the name of the board; and if more is recovered and collected than the amount of the compensation to which

the worker or dependant would be entitled under this Part, the amount of the excess, less costs and administration charges, must

be paid to the worker or dependant. The board has exclusive jurisdiction to determine whether to maintain an action or

compromise the right of action, and its decision is final and conclusive.

(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 or 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.

(8) The provisions of this Part are in lieu of any right of action that the employer of the injured or deceased worker is or may,

in respect of the personal injury or death of the worker, be entitled to maintain against another employer within the scope of

this Part, or an independent operator to whom this Part applies by direction under section 2 (2) (a); but where the board

considers that

(a) a substantial amount of compensation has been awarded as a result of the injury or death of the worker; and

(b) the injury or death was caused or substantially contributed to by a serious breach of duty of care of an

employer or an independent operator to whom this Part applies by direction under section 2 (2) (a) in another

class or subclass,

the board may order that the compensation be charged, in whole or in part, to the other class or subclass; but the provisions

of this subsection do not affect any right which an employer may have against another employer, or an independent operator

to whom this Part applies by direction under section 2 (2) (a), arising out of their indemnity agreement or contract.

(9) For the purpose of this section, "worker" includes an employer admitted under section 2 (2).

(10) In an action brought under this section, an award for damages is to include

(a) health care provided under this Part; and

(b) wages and salary paid by an employer during the period of disability for which regard has been had by the

board, or would have been had if the worker had elected to claim compensation, in fixing the amount of a

periodical payment of compensation.

(11) Costs may, notwithstanding that a salaried employee of the board acts as its solicitor or counsel, be awarded to and

collected by the board in an action taken by the board under this section.

Certification to court

11 Where an action based on a disability caused by occupational disease, personal injury or death is brought, the board must,

on request by the court or by any party to the action, determine any matter that is relevant to the action and within its competence

under this Act and, without limiting the generality of the foregoing, may determine whether

(a) a person was, at the time the cause of action arose, a worker within the meaning of this Part;

(b) 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; and

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

and must certify its determination to the court.

Permanent total disability

22 (1) Where permanent total disability results from the injury, the compensation must be a periodic payment to the injured

worker equal in amount to 75% of the worker's average earnings, and must be payable during the lifetime of the worker.

(2) The compensation awarded under this section must not be less than $325 per month.

Permanent partial disability or disfigurement

23 (1) Where permanent partial disability results from the injury, the impairment of earning capacity must be estimated from

the nature and degree of the injury, and the compensation must be a periodic payment to the injured worker of a sum equal to

75% of the estimated loss of average earnings resulting from the impairment, and must be payable during the lifetime of the

worker or in another manner the board determines.

(2) The board may compile a rating schedule of percentages of impairment of earning capacity for specified injuries or

mutilations which may be used as a guide in determining the compensation payable in permanent disability cases.

(3) Where the board considers it more equitable, it may award compensation for permanent disability having regard to the

difference between the average weekly earnings of the worker before the injury and the average amount which the worker is

earning or is able to earn in some suitable occupation after the injury, and the compensation must be a periodic payment of 75%

of the difference, and regard must be had to the worker's fitness to continue in the occupation in which the worker was injured

or to adapt to some other suitable employment or business.

(4) Where permanent partial disability results from the injury, the minimum compensation awarded must be calculated in the

same manner as provided by section 29 (2) for temporary total disability but to the extent only of the partial disability.

(5) Where the worker has suffered a serious and permanent disfigurement which the board considers is capable of impairing

the worker's earning capacity, a lump sum in compensation may be paid, although the amount the worker was earning before

the injury has not been diminished.

Temporary total disability

29 (1) Where temporary total disability results from the injury, the compensation must be the same as that prescribed by section

22, but is payable only so long as the disability lasts.

(2) The compensation awarded under this section must not be less than an amount equal to $75 per week, unless the worker's

average earnings are less than that sum per week, in which case the worker must receive compensation in an amount equal

to the worker's average earnings.

Temporary partial disability

30 (1) Where temporary partial disability results from the injury, the compensation must be a periodic payment to the injured

worker equal in amount to 75% of the difference between the average earnings of the worker before the injury and the average

amount which he or she is earning or is able to earn in some suitable employment or business after the injury, and must be

payable only so long as the disability lasts.

(2) Where temporary partial disability results from the injury, the minimum compensation awarded must be calculated in the

same manner as prescribed by section 29 (2) for temporary total disability but to the extent only of the partial disability.

Jurisdiction of board

96 (1) The board has exclusive jurisdiction to inquire into, hear and determine all matters and questions of fact and law arising

under this Part, and the action or decision of the board on them is final and conclusive and is not open to question or review

in any court, and proceedings by or before the board must not be restrained by injunction, prohibition or other process or

proceeding in any court or be removable by certiorari or otherwise into any court, and an action must not be maintained or

brought against a governor, officer, appeal commissioner or employee of the board in respect of an act, omission or decision

done or made in the belief that it was within the jurisdiction of the board; and, without restricting the generality of the

foregoing, the board has exclusive jurisdiction to inquire into, hear and determine

(a) the question whether an injury has arisen out of or in the course of an employment within the scope of this Part;

(b) the existence and degree of disability by reason of an injury;

(c) the permanence of disability by reason of an injury;

(d) the degree of diminution of earning capacity by reason of an injury;

(e) the amount of average earnings of a worker, whether paid in cash or board or lodging or other form of

remuneration, for the purpose of levying assessments, and the average earnings of a worker for purposes of

payment of compensation;

(f) the existence, for the purpose of this Part, of the relationship of a member of the family of a worker as defined

by this Act;

(g) the existence of dependency;

(h) whether an industry or a part, branch or department of an industry is within the scope of this Part, and the class

to which an industry or a part, branch or department of an industry within the scope of this Part should be assigned;

(i) whether a worker in an industry within the scope of this Part is within the scope of this Part and entitled to

compensation under it; and

(j) whether a person is a worker, a subcontractor, a contractor or an employer within the meaning of this Part.

(2) Notwithstanding subsection (1), the board may at any time at its discretion reopen, rehear and redetermine any matter,

except a decision of the appeal division, which has been dealt with by it or by an officer of the board.

(3) On an appeal under section 91 (1), the appeal division may reopen, rehear and redetermine any matter that has been dealt

with by the review board.

(4) The president may, not more than 30 days after a finding of the review board is sent out, refer the finding to the appeal

division for redetermination on grounds of error of law or contravention of a published policy of the governors.

(5) Section 91 (2) applies to a redetermination under subsection (4).

(6) An employer who has received notice of

(a) an assessment under section 39 or 40,

(b) a classification, special rate, differential or assessment under section 42, or

(c) an additional assessment, levy or contribution under section 73

may, not more than 30 days after receiving the notice or within a longer period the chief appeal commissioner may allow,

appeal the assessment, classification, special rate, differential or additional assessment, levy or contribution to the appeal

division on the grounds of error of law or fact or contravention of a published policy of the governors.

(6.1) An employer who has received a notice relating to

(a) an assessment,

(b) a classification,

(c) a monetary penalty, or

(d) an apportionment or shifting of cost between classes

under this Act not referred to in subsection (6) but designated in the policies of the governors, may, not more than 30 days after

receiving the notice or within a longer period the chief appeal commissioner may allow, appeal the assessment, classification,

monetary penalty or apportionment or shifting of cost between classes to the appeal division on the grounds of error of law

or fact or contravention of a published policy of the governors.

(7) The commencement of an appeal under subsection (6) or (6.1) does not relieve an employer from paying an amount in

respect of which the appeal is commenced but, if the appeal is successful, the amount to be returned to the employer must be

accompanied by interest, calculated in accordance with the policies of the governors, on the amount to be returned.

(8) Section 91 (3) applies to a rehearing or redetermination under this section.

Workplace Safety and Insurance Act, 1997 of Ontario

Rights of Action

No action for benefits

26.(1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and

determined by the Board.

Benefits in lieu of rights of action

(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that

a worker, a worker's survivor or a worker's spouse, child or dependant has or may have against the worker's employer

or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational

disease contracted by the worker while in the employment of the employer.

Application of certain sections

27.(1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or

her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under

the plan.

Same

(2) If a worker's right of action is taken away under section 28 or 29, the worker's spouse, child, dependant or

survivors are, also, not entitled to commence an action under section 61 of the Family Law Act.

Certain rights of action extinguished

28.(1) A worker employed by a Schedule 1 employer, the worker's survivors and a Schedule 1 employer are not

entitled to commence an action against the following persons in respect of the worker's injury or disease:

1. Any Schedule 1 employer.

2. A director, executive officer or worker employed by any Schedule 1 employer.

Same, Schedule 2 employer

(2) A worker employed by a Schedule 2 employer and the worker's survivors are not entitled to commence an

action against the following persons in respect of the worker's injury or disease:

1. The worker's Schedule 2 employer.

2. A director, executive officer or worker employed by the worker's Schedule 2 employer.

Restriction

(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained

the injury, subsection (1) applies only if the workers were acting in the course of their employment.

Exception

(4) Subsections (1) and (2) do not apply if any employer other than the worker's employer supplied a motor

vehicle, machinery or equipment on a purchase or rental basis without also supplying workers to operate the motor

vehicle, machinery or equipment.

Liability where negligence, fault

29.(1) This section applies in the following circumstances:

1. In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a

worker, any Schedule 1 employer or a director, executive officer or another worker employed by a

Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that

gives rise to the worker's entitlement to benefits under the insurance plan.

2. In an action by or on behalf of a worker employed by a Schedule 2 employer or a survivor of such a

worker, the worker's Schedule 2 employer or a director, executive officer or another worker employed

by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives

rise to the worker's entitlement to benefits under the insurance plan.

Same

(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his

or her survivors or to contribute to or indemnify another person who is liable to pay such damages.

Determination of fault

(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the

employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the

action.

Same

(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a

person described in that subsection is recoverable in an action.

Election, concurrent entitlements

30.(1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the

insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in

respect of the injury or disease.

Election

(2) The worker or survivor shall elect whether to claim the benefits or to commence the action and shall notify

the Board of the option elected.

Same

(3) If the worker is or was employed by a Schedule 2 employer, the worker or survivor shall also notify the

employer.

Same

(4) The election must be made within three months after the accident occurs or, if the accident results in death,

within three months after the date of death.

Same

(5) The Board may permit the election to be made within a longer period if, in the opinion of the Board, it is just

to do so.

Same

(6) If an election is not made or if notice of election is not given, the worker or survivor shall be deemed, in the

absence of evidence to the contrary, to have elected not to receive benefits under the insurance plan.

Same, minor

(7) If the worker or survivor is less than 18 years of age, his or her parent or guardian or the Children's Lawyer

may make the election on his or her behalf.

Same, incapable person

(8) If a worker is mentally incapable of making the election or is unconscious as a result of the injury,

(a) the worker's guardian or attorney may make the election on behalf of the worker;

(b) if there is no guardian or attorney, the worker's spouse may make the election on behalf of the worker; or

(c) if there is no guardian or attorney and if no election is made within 60 days after the date of the injury, the

Public Guardian and Trustee shall make the election on behalf of the worker.

Same

(9) If a survivor is mentally incapable of making the election,

(a) the survivor's guardian or attorney may make the election on behalf of the survivor; or

(b) if there is no guardian or attorney and if no election is made within 60 days after the death of the worker,

the Public Guardian and Trustee shall make the election on behalf of the survivor.

Subrogation, Schedule 1 employer

(10) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed

by a Schedule 1 employer or the deceased worker was so employed, the Board is subrogated to the rights of the

worker or survivor in respect of the action. The Board is solely entitled to determine whether or not to commence,

continue or abandon the action and whether to settle it and on what terms.

Same, Schedule 2 employer

(11) If the worker or survivor elects to claim benefits under the insurance plan and if the worker is employed

by a Schedule 2 employer or the deceased worker was so employed, the employer is subrogated to the rights of the

worker or survivor in respect of the action. The employer is solely entitled to determine whether or not to commence,

continue or abandon the action and whether to settle it and on what terms.

Surplus

(12) If the Board or the employer pursues the action and receives an amount of money greater than the amount

expended in pursuing the action and providing the benefits under the insurance plan to the worker or the survivor,

the Board or the employer (as the case may be) shall pay the surplus to the worker or survivor.

Effect of surplus

(13) Future payments to the worker or survivor under the insurance plan shall be reduced to the extent of the

surplus paid to him or her.

If worker elects to commence action

(14) The following rules apply if the worker or survivor elects to commence the action instead of claiming

benefits under the insurance plan:

1. The worker or survivor is entitled to receive benefits under the insurance plan to the extent that, in a judgment

in the action, the worker or survivor is awarded less than the amount described in paragraph 3.

2. If the worker or survivor settles the action and the Board approves the settlement before it is made, the worker

or survivor is entitled to receive benefits under the insurance plan to the extent that the amount of the settlement

is less than the amount described in paragraph 3.

3. For the purposes of paragraphs 1 and 2, the amount is the cost to the Board of the benefits that would

have been provided under the plan to the worker or survivor, if the worker or survivor had elected to claim

benefits under the plan instead of commencing the action.

Determining amount

(15) For the purpose of determining the amount of benefits a worker or survivor is entitled to under subsection

(14), the amount of a judgment in an action or the amount of a settlement shall be calculated as including the amount

of any benefits that have been or will be received by the worker or survivor from any other source if those benefits,

(a) have reduced the amount for which the defendant is liable to the worker or survivor in the action; or

(b) would have been payable by the defendant but for an immunity granted to the defendant under any law.

Decisions re rights of action and liability

31.(1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268

of the Insurance Act may apply to the Appeals Tribunal to determine,

(a) whether, because of this Act, the right to commence an action is taken away;)

(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or

(c) whether the plaintiff is entitled to claim benefits under the insurance plan.

Same

(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).

Finality of decision

(3) A decision of the Appeals Tribunal under this section is final and is not open to question or review in a court.

Claim for benefits

(4) Despite subsections 22 (1) and (2), a worker or survivor may file a claim for benefits within six months after

the tribunal's determination under subsection (1).

Extension of time

(5) The Board may permit a claim to be filed after the six-month period expires if, in the opinion of the Board,

it is just to do so.

Court File No: 25784

G.S. SINGH, TO THEIR APPLICATION FOR LEAVE TO INTERVENE

1. In answer to paragraphs 4 and 5 of the Response of G.S. Singh, the Applicant injured workers groups agree that the Workers' Compensation Board has historically paid compensation benefits for the adverse consequences of medical treatment. As explained in paragraph 33 of the Applicants' Memorandum of Argument, the Board's policy to do so arose out of a 1975 decision of the Commissioners which is reproduced almost verbatim in the Board's policy manual.

2. The majority decision of the Court of Appeal, however, jeopardizes that policy by suggesting that negligent medical treatment constitutes a "novus actus interveniens" which breaks the chain of causation between the original work injury for which treatment is being received, and the consequences of the negligence. If correct, this reasoning would mean that the Board could not compensate for the consequences of the negligence, since those consequences would not as a matter of law have been caused by the work injury. This was the understanding of the Mr. Justice Donald, who dissented, and who expressed the fear that the majority's decision could result in workers falling "between two systems" and receiving neither compensation benefits nor civil damages for the adverse consequences of treatment.

3. In answer to paragraphs 6 and 7 of the Response, the Applicants submit that the Appellant, G.S. Singh continues to miss the point which the Applicants made in their Memorandum. The two-part test in s. 5(1) - which is identical to the test in s. 10(1) and 11(b) - does indeed determine entitlement to compensation for the compensable consequences (whatever they may be) of an injury or industrial disease. But this test does not determine which "consequences" are compensable. To answer that question, one must turn to s. 22, 23, 29 and 30, and to s. 96(1)(b), all of which refer only to the causal link between the condition in question and the injury (or disease) which is the basis of the claim.

4. These compensability provisions do not require that the worker have been "in the course of employment" at the time that each disabling condition arose, as does the test for entitlement in s. 5. Indeed, such a requirement would be disastrous for injured workers, since many seriously disabling consequences of a work injury or disease do not arise until long after the worker's last employment activity. Chronic pain syndrome and psychological conditions are but two examples of such delayed but clearly compensable consequences.

5. In answer to paragraphs 9 to 11 of the Response, the Applicants submit that there is little if any doubt that a certificate such as the one which the Appeal Division issued in these proceedings automatically bars any subsequent litigation by an injured worker against a doctor who has been found to be a "worker" or "employer" at the time of the treatment in question. Both the majority and dissenting justices in the Court of Appeal thought so, based on the decisions of this Court in Pasiechnyk and earlier cases. See paragraphs 5 - 11 of the Court of Appeal's judgment. Moreover, Dr. Singh himself obviously thought that the Board's certificate would prevent Mrs. Kovach's lawsuit from proceeding; otherwise, there would have been no purpose for his s. 11 application to the Board.

6. In answer to paragraphs 13 of the Response, the Applicants note that they have not seen the Record or factums of the parties and any other interveners who may be granted leave, and therefore cannot know at this point exactly what material and arguments they will contain.

Subject to this uncertainty, the Applicants:

a. do not seek leave to add to the Record as filed by the parties;

b. seek to file a only a single factum of 20 pages or less on behalf of all of the injured worker groups;

c. ask for leave to present up to 30 minutes of oral argument, in order to describe the Applicants' perspective on the impact which the Court's decision may have upon injured workers, and in order to address the legal issues which are central to this appeal;

d. do not object to the request that the appellant G.S. Singh (and other parties) be permitted to file a supplementary factum in response to the Applicants' factum; they do note, however, that this request seems to contradict the submission that the Applicants would not add a fresh perspective to the appeal; and

e. oppose any order for costs, particularly as a condition of receiving leave to intervene.

The Applicant groups are made up of individual injured workers and their family members, and with the exception of the Ontario Network, they rely on donations and do not have government or other outside sources of funding that could be used for legal expenses. The appellant, G.S. Singh initiated these proceedings by applying for a certificate under the Workers' Compensation Act to prevent the Respondent, his patient, from seeking to prove that he was negligent, and if she could do so, from receiving the same damages as any other patient in such circumstances would be entitled to receive. This appeal arising from that application will determine important legal issues that affect all injured workers who receive treatment from a doctor for their injuries, and especially those workers who receive treatment that may be negligent. The Applicants submit that the circumstances which have compelled them to intervene are indeed exceptional within the meaning of s. 18(6) of the Rules of this Honourable Court, and tha t no order for costs should be made.

7. Injured workers are the people most affected by workers' compensation generally, and by the Court's decision in this appeal, which will determine whether they have the right to seek to civil damages if they suffer further injuries due to negligent medical treatment, and if so, whether they thereby lose their right to compensation benefits for such injuries. The Applicants are appropriate interveners to present the perspective of injured workers on these questions, and should be permitted to assist the Court by doing so.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated: March 4, 1999 

Counsel for the Applicants

BASIC QUESTIONS AND ANSWERS REGARDING THE INTERVENTION IN KOVACH V. SINGH

The questions and answers set out below are intended to supplement the previous message which you have received outlining the background to the proposed intervention and the position I suggest we take. Most of the questions were originally raised by Birgit and Steve Lund. I felt that my answers would probably be of interest to all the groups, so they have been turned into an "faq", to use internet lingo.

1. Q. Bill 63, enacted in 1994, made medical offices (as well as legal and financial institutions and other "white collar" jobsites) subject to the W.C. Act for the first time. Mrs. Kovach is suing for an operation that took place before that amendment. Would the intervention only benefit claimants such as her, or could it also apply to workers whose negligent treatment happened since 1994?

A. The 1994 amendments are only relevant indirectly. Bill 63 made it mandatory for certain types of workplaces to be covered by workers' compensation, including doctor's offices. This means that most doctors are now "employers" under the Act, but even before Bill 63 a doctor could take out "personal optional protection" for his own earnings like other "independent contractors".

In a decision by the Appeal Division decision made a few months before the Kovach certificate, the panel (Tom Kemsley,who was also part of the panel in Kovach) decided that a doctor who was sued for malpractice was NOT protected by s. 10, even though he was an employer of his private office staff. The main reasons were (1) he treated the worker in the hospital, not his office, and his staff had nothing to do with the treatment, and (2) he did not take out personal optional protection to cover his own work (and earnings).

In the next such decision, the appeal division (Connie Munro, Tom Kemsley, and Micheal O'brien, now chair of the review board) found that a doctor employed by WCB itself was shielded from a lawsuit by s. 10 because he was a worker acting in the course of his employment. Then, in Kovach, the same panel of the appeal division found that Dr. Singh was shielded by the act because he had incorporated a holding company to carry on his practice and was "employed" by it when he operated on Mrs. Kovach.

The approach in these three decisions makes a worker's right to sue depend on how a doctor is paid or structures his practice, and whether his own earnings are covered by WCB or not. In my view, it makes no sense to deprive a worker of the right to seek damages for negligence because of factors such as this which have nothing to do with the worker.

We will be approaching the issue from the worker's perspective, not the doctor's. I.e., we will argue that it doesn't matter whether the doctor is an employer or worker under the Act or not, because the worker is not "in the course of employment" when undergoing treatment. The worker should still receive full compensation if the treatment goes wrong, whether he can prove negligence or not, but can also sue the doctor WITHOUT THE BOARD'S PERMISSION OR THE NEED TO MAKE AN "ELECTION". According to this rationale, the only effect of a lawsuit on the compensation claim is that the Board would have an equitable claim to be reimbursed for any wage-loss benefits it has paid that are duplicated by damages awarded by the Court. If the Supreme Court of Canada upholds the Board's right to assume that a worker is in the course of employment whenever he is receiving treatment, as the Appeal Division decided in all three of the recent decisions, such a result is impossible, and the right to sue will depend on the doc tor's status.

2. Q. Will the statute of limitation regarding filing of a lawsuit apply to malpractice claims by workers, if the intervention is successful?

A. Yes, the usual rules would still apply, as they do now. A worker would have to sue within two years of having the information that would lead a reasonable person to seek professional advice about a possible malpractice claim. [The two year period is suspended if a worker is so disabled that he cannot exercise his rights, but this means much more than just being unable to work. A severe mental disability (or a very severe physical disability, such as a coma) is needed to suspend a limitation period.]

3. Q. Some claimants believe that they have been caused further injury due to negligence by a WCB Doctor, physiotherapist, or other Board employee while undergoing treatment at the Board. If successful, would the intervention enable such Board employees to be sued as well?

A. Yes and no. If the WORKER is not 'in the course of employment' when receiving the negligent treatment, the employer and status of the doctor and other defendants shouldn't matter. There is another problem, though. The 1994 amendment also added "employee of the board" to the list of people in s. 96(1) who cannot be sued "in respect of act, omission, or decision done or made in the belief that is was within the jurisdiction of the board..." A Board doctor, physiotherapist, etc. who injures a worker during treatment at the Rehab Centre, for example, may well be protected by that clause, entirely apart from s. 10 and s. 11. (When this clause was added in 1994, a few of us complained about it, but couldn't arouse much interest.)

4. Q. Would the intervention have any bearing on a worker's right to sue other professionals and service providers (and/or the licencing and regulatory bodies that control them), or would it be limited to medical malpractice claims?

A. S. 10(1) doesn't apply just to malpractice claims. It bars all actions "in respect of any personal injury, disablement or death arising out of and in the course of employment..." if the defendant is an employer or worker under the Act and was also acting in the course of employment. Under current Board policy, an injury occurring during treatment that is not caused by malpractice (for example, a worker falling down a poorly lit flight of stairs at a hospital) would also be treated as having happened "in the course of employment". Even some motor vehicle accidents related to treatment can be covered. If so, and if the responsible party is also a worker or employer, the worker cannot sue. The intervention could change this, and give workers in those situations as well the right to sue and also to receive ongoing compensation under their original claims for their new injuries.

In the case of non-medical professions, s. 10(1) would only affect a lawsuit if a worker claims to have suffered "disablement" as well as economic losses due to the negligence. In such cases, the intervention position would also protect workers' rights. If the claim is for lost benefits or other financial losses (e.g., against a negligent lawyer, accountant, etc.), the case should be unaffected by s. 10 no matter how the Kovach appeal turns out.

It would take a rare fact pattern to give rise to a lawsuit against a licensing or regulatory body, As noted, s. 10 only bars a claim for injury, disablement, or death, not economic loss. Hypothetically, if the College was aware that a non-doctor was purporting to practice medicine, or was engaging in dangerous experimentation (such as one B.C. doctor who was found negligent by the courts for inserting experimental artificial discs in his patient's backs), and the College neglected to do anything to stop him, a worker who was harmed in a later operation might claim that the College was also at fault for its failure to take action. In such (rare) circumstances, the intervention could protect the right to sue.

5. Q. A doctor who is sued will have powerful legal interests to defend him, while the patient probably will not. Are there legal aid or other organizations to represent injured workers and other patients in such cases? Would WCB provide representation?

A. WCB would not be subrogated to the worker's rights, as it would if the worker had been injured in the course of employment by someone other than an employer or worker and then elected to claim compensation instead of suing. The Board could be empowered (perhaps requiring an amendment to the Act) to provide representation at the worker's option, since the Board would also benefit by recovering part of the compensation if the lawsuit were successful.

The Legal Services Society (and CLAS) do not take on personal injury lawsuits (malpractice or otherwise). Many private lawyers do take motor vehicle injury cases on a percentage fee basis. Far fewer lawyers will sue a doctor on a percentage basis because the doctors' liability insurance fund has a policy to fight all claims, usually to a full trial, and sometimes appeals. Because it is so hard to sue doctors successfully, Canadian doctors pay a small fraction of what liability insurance costs US doctors. Still, there are lawyers who will take a malpractice claim on such a basis if there is strong evidence, and LSS may cover some of the expenses of the lawsuit if the worker is financially eligible. Finding a lawyer willing to act and making a fair arrangement for legal fees is one of the biggest hurdles facing anyone who wants to sue a doctor. It's no different for injured workers.

6. Q. Isn't there a risk that the intervention would give WCB an excuse to deny or reduce the workers' compensation benefits a worker receives, by claiming that the doctor is responsible for much of the disability?

A. It is exactly this factor that makes an intervention so important. As of now, the decision of the Court of Appeal (according to the dissenting judge, anyway) leaves an injured worker who has received negligent treatment at risk of "falling between the cracks". I.e., the Board may decide it's all the doctor's fault, while the Courts don't find any negligence. Because the Board is an independent decision-maker whose decisions are protected by the privative clause in s. 96, it usually cannot be forced to accept the Court's decision about the causes of the disability, nor does the Court have to agree with the Board.

If workers had to choose between the right to sue a negligent doctor and the right to full compensation, they would have to pick compensation to avoid this risk. Otherwise, a worker who doesn't want to sue or can't find a lawyer would simply be left in the cold. But workers shouldn't have to make that choice. Instead, they should receive full compensation because treatment for a work injury does arise out of employment (i.e., it's caused by the original work injury) even though it doesn't occur in the course of employment. If that analysis is accepted by the Supreme Court, the worker would still receive compensation for the overall disability, while also having the right to sue.

7. Q. If the intervention is unsuccessful, is there anything that can be done?

A. Absolutely. There will almost certainly be amendments needed to the Act in response to the Royal Commission. Workers could press for a provision which deals expressly with injuries suffered in the course of treatment, and guarantees both the right to sue and the right to full compensation.

8. Q. Bill 63 made this much more of a problem by bringing many doctors under the Act for the first time. If this was an unintended result, should workers press for those amendments to be repealed?

A. The 1994 amendments are only an indirect source of the problem, because they allowed many more doctors to claim the protection of s. 10 since they were required to register as employers of their office staff. The appropriate solution isn't to deprive nurses and receptionists who work for doctors of the benefits of workers' compensation by repealing the 1994 amendments. If the government can be convinced that the present law is unfair, the amendment suggested in the last answer would be the right solution.

9. Q. Wouldn't a decision that Mrs. Kovach has the right to sue help lawyers by opening up a new sourse of income to them? If so, why doesn't the legal profession support her case?

A. I don't know if the Bar Association has considered intervening or not. Because of the hurdles to a successful malpractice lawsuit mentioned in answer 5 above, restoring the right of workers to sue will not make much difference overall to personal injury lawyers. It would, however, restore equal rights to workers so that they can sue where the evidence is strong enough.