Highlights of Noteworthy Decisions

Decision 2903 17
J. Noble
  • Jurisdiction, Tribunal (right to sue) (dependants)
  • Jurisdiction, Tribunal (right to sue) (derivative action)
  • Right to sue
  • Summons (to Board employee)

A worker died in a motor vehicle accident in 2012. His mother, father and grandmother brought an action claiming special damages for various expenses and non-pecuniary general damages for mental distress and psychological trauma. They did not bring an action in the name of the estate. The defendants applied to determine whether the plaintiff's right of action was removed by ss. 27 and 28 of the WSIA and whether the deceased worker's right of action would have been taken away.

In a preliminary matter, the Vice-Chair denied the worker's request that the Tribunal summons a Board case manager to give evidence concerning statements he made to family members of the deceased. Board employees are not compellable witnesses before the Tribunal.
The worker was 22 years old at the time of the fatal accident. Section 27(2) states that, if a worker's right of action is taken away, the spouse, child, dependant or survivors are also not entitled to commence an action under s. 61 of the Family Law Act. Section 28(1) states that a worker's survivors are not entitled to commence an action against a Schedule 1 employer. Survivor is defined in s. 2(1) as meaning a spouse, child or dependant of a deceased worker.
The Vice-Chair found that the plaintiff family members were not survivors of the worker. They were not wholly or partly dependent on the worker's earnings and, therefore, were not dependants of the worker. Accordingly, the right of action of the plaintiffs was not removed by ss. 27 and 28.
Neither the deceased nor his estate had commenced an action. The Vice-Chair referred to Decisions No. 1921/06 and 1921/06R, and concluded that, in the circumstances, it was appropriate to determine whether the worker's right of action would have been taken away under s. 31. The defendants intended to bring a motion to Court seeking a decision that the action of the plaintiff family members was derivative in nature, but the Court would not make that determination in the absence of a decision from the Tribunal as to whether the worker's right of action would have been taken away.
On the uncontested evidence, the Vice-Chair found that the worker's right of action would have been taken away.