Highlights of Noteworthy Decisions

Decision 996 21
2022-01-06
J. Dimovski - R. Ouellette - C. Salama (PT)
  • Arising out of employment (remote location)
  • Jurisdiction, Tribunal (right to sue) (derivative action)
  • Right to sue

J, a woodlands supervisor, was found deceased next to his ATV while on patrol in a remote area. The Board accepted that pre-existing myocarditis caused him to lose consciousness but that hypothermia caused his death, and paid benefits to J's spouse and son. J's father, mother, and sister brought a civil action against J's employer and another party. The defendants in that action brought an application for a determination that the action was barred under the WSIA. J's estate, spouse, and son were not parties to the action or the application.

The application was granted.
The Tribunal had jurisdiction to determine the application. Decisions No. 1921/06R and 2903/17 found that the Tribunal had jurisdiction to consider whether a worker's right of action was taken away in circumstances where the worker's estate was not a party to the action or the application.
J's right of action was taken away by the Act. The applicants were Schedule 1 employers at the time of the accident, J was a worker in the course of his employment at the time of his death, and his death arose out of employment. The Coroner's report stated that the cause of death was hypothermia. While the myocarditis incident significantly contributed to his death, J was unable to access rescue because he was working alone and exposed to cold weather.
There was no dispute that the plaintiffs were not dependents or survivors under the Act. Accordingly, their right of action was not removed by the Act.