Highlights of Noteworthy Decisions

Decision 2594 16
R. McCutcheon
  • Jurisdiction, Tribunal (federal worker) (right of action)
  • Jurisdiction, Tribunal (right to sue) (Government Employees Compensation Act)

The plaintiff in a civil case was an assistant for a Rural and Suburban Mail Carrier (RSMC) for Canada Post. She sat in the passenger seat and delivered the mail while the RSMC drove the vehicle. They were in a motor vehicle accident in April 2011. The plaintiff brought the action against the RSMC and the driver of the other vehicle.

The issue was whether the plaintiff's right of action was taken away by operation of the WSIA and/or the federal Government Employees Compensation Act (GECA). In this decision, the Vice-Chair considered the preliminary issue of whether the Tribunal had jurisdiction to adjudicate the application.
Section 4(1) of GECA provides that compensation is paid to an employee who is caused personal injury by accident arising out of and in the course of employment. Section 4(2) provides that the employee is entitled to receive compensation at the same rate and under the same conditions as under the laws of the particular province. Section 4(3) provides that compensation under s. 4(1) is determined by the same board as is established by the law of the province for determining compensation for workers other than federal workers. Section 12 bars claims against the Crown by providing that, where an accident occurs in such circumstances as entitle the worker to compensation under GECA , the worker does not have any claim against the Crown other than for compensation under GECA.
The Tribunal's jurisdiction to determine right to sue application is granted through s. 31 of the WSIA, with ss. 26 to 29 setting out the rules that apply in determining whether the right to commence an action is taken away by the WSIA.
The Vice-Chair reviewed jurisprudence on the interpretation of GECA and provincial legislation.
In Martin v. Alberta, the Supreme Court of Canada stated that the reference to the "same conditions" in s. 4(2) of GECA was intended to indicate that the eligibility conditions for federal employees under GECA were to be the same as under the provincial scheme. Where there is a direct conflict between provincial laws and GECA, GECA will prevail. In Morrison Estate, the Nova Scotia Court of Appeal stated that it is the filing of the claim that engages provincial legislation. More recently, in Hill v. Tomandl, the Yukon Court of Appeal note the GECA was not based on the historic trade-off in the same way as provincial workers' compensation schemes and that the legislative history did not support a conclusion that GECA adopted right to sue provisions of provincial statues.
The Vice-Chair also reviewed Tribunal Decision No. 485/90, which found that the Tribunal did not have jurisdiction to decide right to sue applications under GECA, and Decision No. 771/16I, which found that the Tribunal does have jurisdiction.
The Vice-Chair concluded that s. 4(3) of GECA does not confer a general jurisdiction on provincial boards over federal employees but, rather, specifically provides that compensation under s. 4(1) is determined by the provincial boards. There is no statutory language that expressly states, or implies, that this grant of authority to provincial boards extends to apply s. 12 of GECA to parties to an action. The delegation of authority is limited to a determination under s. 4(1), without reference to s. 12. Based on the current state of the law, Hill v. Tomandl is persuasive authority for the proposition that right to sue provisions in provincial statutes do not apply to actions by federal employees.
The Vice-Chair also referred to the language of s. 31(1)(a) and (b) of the WSIA, which refers to "this Act," thus limiting the Tribunal's jurisdiction to the provisions of the WSIA.
The Vice-Chair also noted that a finding that the Tribunal lacks jurisdiction does not leave the parties without a remedy. Where a plaintiff subject to GECA has brought an action, any party may apply to the Court to determine the rights of the parties under GECA.
The Vice-Chair then considered whether the Tribunal's jurisdiction under s. 31(1)(c) of the WSIA, to determine whether a plaintiff is entitled to claim benefits under the insurance plan, is incorporated into the delegation of decision-making authority under s. 4(3) of GECA and the language of s. 12 of GECA.
Decision No. 485/90 found that the determination of the right to sue is collateral to a claim for benefits, rather than an integral part of it. The predominant character of the jurisdiction hinged on the civil action. Hill v. Tomandl appeared to reinforce the conclusions reached in Decision No. 485/90. Furthermore, Morrison Estate stated that the filing of the claim engaged the provincial legislation. Unlike s. 4(3) of GECA, s. 12 of GECA includes no provision for the method by which the determination is made.
The Vice-Chair concluded that the Tribunal does not have jurisdiction in this case.