Highlights of Noteworthy Decisions

Decision 1003 13
T. Mitchinson
  • Abuse of process
  • Jurisdiction, Tribunal (over own process)
  • Registration of employers
  • Right to sue

The plaintiff in a civil case was a mover, who was injured when he was struck by the moving truck. The plaintiff brought the action against the owner of the truck and the driver. The defendants applied to determine whether the plaintiff's right of action was taken away.

In a preliminary matter, the plaintiff submitted that the defendants were precluded, by Rule 51.06 of the Rules of Civil Procedure, from taking the position that the owner of the moving truck was an employer for purposes of the WSIA in light of a contrary position taken in the pleadings in the underlying civil suit.
The Vice-Chair found that the Rules of Civil Procedure did not apply. Rule 1.02 specifically excludes the application of a Rule if a different statutory scheme sets out a different procedure. Section 131 of the WSIA authorizes the Tribunal to determine its own practice and procedure. The Tribunal had adopted practice directions, one of which deals with Right to Sue Applications. It is the WSIA and the practice direction that govern right to sue applications, not the Rules of Civil Procedure.
To the extent that Rule 51.06 is helpful in the context of this application, the Vice-Chair found that the requirements necessary to invoke the rule are not present. There was no "admission" in the pleadings in response to a request to admit, nor was there a deemed admission. Pleadings initiate civil proceedings. Pleadings are often amended during various stages of litigation as the case proceeds and facts become clearer. Pleadings from the underlying civil suit may be relevant and useful in a right to sue application but they would never be sufficient to make a determination. The focus at a Tribunal hearing is on the issue, sworn testimony and submissions, not on a peripheral issue of whether there may be an inconsistency in documents relevant in a different forum. At most, the inconsistency could raise a credibility issue.
Any inconsistencies did not amount to an abuse of the Tribunal process. They could be dealt with under the Tribunal's policies and procedures as set out in the practice directions.
On the evidence, the plaintiff and the driver were workers of the owner of the moving van and they were in the course of employment at the time of the accident. The employer had not registered with the Board but it was in a Schedule 1 industry and had the status of a Schedule 1 employer.
The Vice-Chair concluded that the plaintiff's right of action was taken away.