Kovach v. Workers' Compensation Board (B.C.) et al., (2000) 133 B.C.A.C. 85 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 20, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 133 B.C.A.C. 85 (SCC);2000 SCC 3;133 BCAC 85;96 BCLR (3d) 93;217 WAC 85;184 DLR (4th) 415;251 NR 356;[2000] CarswellBC 73;[2002] 2 WWR 235;[2000] 1 SCR 55;[2000] SCJ No 3 (QL)

Kovach v. WCB (2000), 133 B.C.A.C. 85 (SCC);

    217 W.A.C. 85

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2000] B.C.A.C. TBEd. JA.032

Workers' Compensation Board of British Columbia et al. v. Frances Elizabeth Kovach et al. (25784)

and

G.S. Singh v. Frances Elizabeth Kovach and Workers' Compensation Board of British Columbia

(25784; 2000 SCC 3)

Indexed As: Kovach v. Workers' Compensation Board (B.C.) et al.

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie, JJ.

January 20, 2000.

Summary:

A worker was injured during the course of her employment. She consulted a neurosur­geon who performed surgery. The worker sued the surgeon for medical mal­practice. The surgeon was himself an "employee" of his incorporated company, which was a registered employer under the Workers' Compensation Act. The surgeon requested a determination under s. 11 of the Act. A certificate was filed in the court registry to the effect that the worker's injuries arose out of and in the course of his employment. The filing of the certificate prohibited the worker's action against the surgeon. The worker petitioned for judicial review under the Judicial Review Procedure Act. A Chambers judge dismissed the pe­tition. The worker appealed.

The British Columbia Court of Appeal, in a decision reported in 84 B.C.A.C. 176; 137 W.A.C. 176, allowed the appeal, relying in part on a case from the Saskatchewan Court of Appeal. Subsequently, the Supreme Court of Canada reversed the decision in the Saskatchewan Court of Appeal. Meanwhile, the surgeon and Workers' Compensation Board in this case sought leave to appeal to the Supreme Court of Canada. The Supreme Court of Canada ordered that the appeal be reconsidered. The British Columbia Court of Appeal reheard this appeal in light of that direction.

The British Columbia Court of Appeal, Donald, J.A., dissenting, in a decision re­ported in 108 B.C.A.C. 283; 176 W.A.C. 283, again allowed the appeal. The surgeon and the Workers' Compensation Board ap­pealed to the Supreme Court of Canada.

The Supreme Court of Canada, in the following decision, allowed the appeal, set aside the judgment of the Court of Appeal, and restored the s. 11 certificate order.

Workers' Compensation - Topic 107

General principles - Effect of statute on other causes of action - Action by employee against an employee of another employer covered by Act - A worker was injured within the course of her employ­ment - She had surgery - She sued the surgeon for medical malpractice - The surgeon's practice was itself registered as an "employer" under the Workers' Com­pensation Act and the surgeon was a "worker" whose alleged misconduct arose out of his employment - The Workers' Compensation Board certified these facts under s. 11 - The Board ruled that the malpractice action was prohibited pursuant to ss. 10(1) and 11 - The Supreme Court of Canada held that the Board's decision was not patently unreasonable.

Counsel:

R. Mark Powers and Scott A. Nielsen, for the appellant, Workers' Compensation Board of B.C.;

James M. Lepp and Abigail C.F. Turner, for the appellant, G.S. Singh;

Robert G. Richards, Q.C., and Wayne P. Dale, for the intervener, Workers' Com­pensation Board of Saskatchewan;

Janet E. Curry and Nancy L. MacCready-Williams, for the intervener, Workers' Compensation Board of Nova Scotia;

Manoj Gupta, for the intervener, Workers' Compensation Board of Alberta;

Richard J. Tingley, Q.C., for the inter­vener, Workplace Health, Safety and Compensation Commission of New Brunswick;

Scott B. Stewart and Sandra M. Katalinic, for the respondent, Frances Elizabeth Kovach;

James F. Sayre, for the interveners, United Association of Injured and Disabled Workers et al.

This appeal was heard before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache and Binnie, JJ., of the Supreme Court of Canada. The de­cision of the Supreme Court was delivered in both official languages on January 20, 2000 by the court.