Vail et al. v. Workers' Compensation Board (P.E.I.) et al.

• Jurisdiction: Prince Edward Island
• Court: Supreme Court, Trial Division (Prince Edward Island)
• Judge: Campbell, J.
• Citation: (2011), 310 Nfld. & P.E.I.R. 1 (PEISC)
• Date: 21 October 2010
• Subject Matter: PRACTICE,CIVIL RIGHTS

Vail v. WCB (2011), 310 Nfld. & P.E.I.R. 1 (PEISC);

    963 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. AU.046

Gordon Richard Vail and Frederick Joseph McIver (plaintiffs) v. The Workers' Compensation Board of PEI and the Attorney General of PEI (defendants)

(S1-GS-21355; 2011 PESC 6)

Indexed As: Vail et al. v. Workers' Compensation Board (P.E.I.) et al.

Prince Edward Island Supreme Court

Campbell, J.

March 17, 2011.

Summary:

Two injured workers received benefits under the pre-1994 amendments to the Workers' Compensation Act for permanent partial and total disabilities. Benefits were calculated on the basis of the medically assessed percentage of disability ("meat chart" approach) rather than on the basis of lost earning capacity (wage loss approach). The Act provided for benefits based on wage loss. Amendments to the Act in 1994 provided that benefits continued to be determined in relation to wage loss, but s. 50 provided that workers already receiving pensions based on the "meat chart" approach would continue to have their pensions calculated on that basis. The amended Act also terminated benefits at age 65. The workers brought an action challenging the Workers' Compensation Board's past decisions and calculations, alleging that the Board failed to follow its own Act. The workers submitted that the Board was biased and acted in bad faith; that the amended Act violated s. 7 of the Charter (life, liberty and security of the person) and s. 15 (equality rights). The workers also argued that the Act and amended Act violated s. 15 by removing the right of injured workers to sue for damages at common law. The defendants (Attorney General and the Board) brought a motion to strike the statement of claim for, inter alia, failing to disclose a reasonable cause of action.

The Prince Edward Island Supreme Court allowed the motion and struck the statement of claim in its entirety. The court stated that "the plaintiffs' statement of claim ... does not comply with the basic Rules of Court relating to pleadings. Even assuming all of the facts pleaded (not including bald assertions, allegations and conclusions) are proven, in my view it is plain an obvious that the plaintiffs' statement of claim discloses no reasonable cause of action sustainable in law. The claim does not include material facts that would enable the defense to prepare a full and informed response. It raises claims that are beyond any applicable limitation period. Its principal thrust, being to challenge the workers compensation scheme under either the old Act or the new Act or both, has previously been conclusively determined by the Supreme Court of Canada. It raises claims for which the plaintiffs have no standing. That is not a statement of claim which could be rehabilitated by amendment".

Civil Rights - Topic 5651

Equality and protection of the law - Particular cases - Statutes which preclude court action - [See Civil Rights - Topic 5667.1 ].

Civil Rights - Topic 5667.1

Equality and protection of the law - Particular cases - Workers' compensation - Section 13 of the Workers' Compensation Act (before and after 1994 amendments) barred common law civil actions for damages by injured workers in favour of benefits under the Act - Injured workers claimed that s. 13 violated their equality rights (Charter, s. 15) by eliminating the rights of disabled workers and their families to advance claims that other injured persons were free to pursue in courts, such as claims for general, aggravated and punitive damages - The Prince Edward Island Supreme Court struck the claim as failing to disclose a reasonable cause of action - The court stated that "the [Supreme Court of Canada] has consistently held that workers compensation schemes and the trade-offs inherent in them do not produce discriminatory results and do not violate the Charter" - The use of persons who were not governed by the workers compensation scheme, and thus free to commence a civil action, was previously rejected as a comparator group (SCC 2003) - Those persons had to prove negligence - Workers compensation was no-fault based - The pleadings failed to identify any acceptable comparator group - The court stated that "the bar to common law actions and the limits imposed on compensation have been fully analyzed by the Supreme Court of Canada on more than one occasion. The 'historical trade-off' provides a fair and reasonable process of ensuring injured workers and their dependents receive compensation from a secure fund without having to prove the injuries resulted from their employers' negligence. Effectively, it is an insurance scheme requiring mandatory participation and providing compensation without the need to prove fault. The Supreme Court of Canada has confirmed that s. 15 of the Charter is not violated by the provisions of the Workers' Compensation Act." - See paragraphs 24 to 40.

Civil Rights - Topic 8344

Canadian Charter of Rights and Freedoms - Application - Exceptions - Principles of fundamental justice (Charter, s. 7) - [See Civil Rights - Topic 8546 ].

Civil Rights - Topic 8546

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Life, liberty and security of the person - Section 13 of the Workers' Compensation Act (before and after 1994 amendments) barred common law civil actions for damages by injured workers in favour of benefits under the Act - Injured workers claimed that s. 13 violated their s. 7 Charter right to not be deprived of life, liberty and security of the person except in accordance with principles of fundamental justice - The workers acknowledged that s. 7 did not protect property rights, but argued that their claim was not purely economic and had elements that were fundamental to the quality of their life or survival or related to their individual dignity and independence - The Prince Edward Island Supreme Court struck the claim, stating that "various courts have had the opportunity to consider expansion of the application of s. 7 of the Charter to a workers compensation context, and they have declined such expansion. The statement of claim recites no facts capable of supporting a claim the plaintiffs have been deprived of their right to life, liberty or security of their persons other than in accordance with principles of fundamental justice. Judicial intervention into matters of public policy should be reserved only for the clearest of cases where it is necessary to constrain government action that is patently unfair or unreasonable. I do not find there to be any prospect for such intervention on this occasion. Therefore I reject the plaintiffs' claim under s. 7 of the Charter as it discloses no reasonable cause of action and has no possibility of success." - See paragraphs 41 to 49.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Civil Rights - Topic 5667.1 and Civil Rights - Topic 8546 ].

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - Defendants applied to strike the plaintiffs' statement of claim for failing to plead material facts - They argued that the statement of claim was a combination of allegations, assertions and arguments lacking material facts to support a cause of action - The Prince Edward Island Supreme Court agreed - The statement of claim was unduly long, confusing, repetitive and poorly structured - It included a great deal of argument and speculation - Charter violations were claimed, but no facts were pleaded to show how Charter rights were denied - There was an absence of particulars respecting the decisions that were challenged in the action - At a minimum, "the date and nature or content of the impugned decision(s) constitute material facts. None are set out in the statement of claim. ... Ironically, we are left largely with the unsupported hypothesis of enthusiastic counsel in this case." - See paragraphs 50 to 57.

Workers' Compensation - Topic 106

Effect of statute on other causes of action - Action by employee against employer covered by Act - [See Civil Rights - Topic 5667.1 and Civil Rights - Topic 8546 ].

Cases Noticed:

Ward v. Workers' Compensation Board (P.E.I.) (1985), 52 Nfld. & P.E.I.R. 89; 153 A.P.R. 89 (P.E.I.C.A.), refd to. [para. 5].

Stretch v. Workers' Compensation Board (P.E.I.) (1991), 96 Nfld. & P.E.I.R. 254; 305 A.P.R. 254; 1991 CanLII 2740 (P.E.I.C.A.), refd to. [para. 5].

Blanchard v. Workers' Compensation Board (P.E.I.) (1995), 135 Nfld. & P.E.I.R. 150; 420 A.P.R. 150; 2003 PESCAD 20, refd to. [para. 5].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 17].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Bank of Montreal v. Charlottetown (City) (2006), 262 Nfld. & P.E.I.R. 155; 794 A.P.R. 155; 2006 PESCAD 26, refd to. [para. 18].

Cameron v. Medical Society (P.E.I.) et al. (2002), 215 Nfld. & P.E.I.R. 233; 644 A.P.R. 233; 2002 PESCTD 31, refd to. [para. 19].

Kay Aviation v. Rofe (2001), 199 Nfld. & P.E.I.R. 339; 600 A.P.R. 339; 2001 PESCAD 7, refd to. [para. 20].

Kelly v. Canada (Attorney General) et al. (2009), 294 Nfld. & P.E.I.R. 180; 908 A.P.R. 180; 2009 PESC 41, refd to. [para. 20].

Roeder v. Lang Michener Lawrence & Shaw et al. (2007), 238 B.C.A.C. 164; 393 W.A.C. 164; 2007 BCCA 152, refd to. [para. 20].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 20].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.) (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501 (Nfld. C.A.), refd to. [para. 28].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.), [1989] 1 S.C.R. 922; 96 N.R. 227; 76 Nfld. & P.E.I.R. 181; 235 A.P.R. 181, refd to. [para. 32].

St. Jacques v. Fédération des employées et employés de services public Inc. (C.S.N.) et al., [1996] 2 S.C.R. 345; 198 N.R. 1, refd to. [para. 33].

Bell Canada v. Commission de la santé et de la securité du travail (Que.) and Bilodeau et al., [1988] 1 S.C.R. 749; 85 N.R. 295; 15 Q.A.C. 217, refd to. [para. 34].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 34].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1; 1999 CanLII 675, refd to. [para. 35].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 36].

Piercey v. General Bakeries Ltd., Newfoundland and Workers' Compensation Commission (Nfld.) (1987), 61 Nfld. & P.E.I.R. 147; 185 A.P.R. 147; 1986 CanLII 107 (Nfld. T.D.), refd to. [para. 38].

Irwin Toy Ltd. v. Québec (Procureur général), [1989] 1 S.C.R. 927; 94 N.R. 167; 24 Q.A.C. 2; 1989 CanLII 87, refd to. [para. 42].

Godbout v. Longueuil (Ville) (1997), 219 N.R. 1; 1997 CanLII 355 (S.C.C.), refd to. [para. 42].

Terzian v. Workers' Compensation Board (Ont.) (1983), 42 O.R.(2d) 144; 1983 CarswellOnt 1265 (Div. Ct.), refd to. [para. 44].

Hernandez v. Palmer (1992), 46 M.V.R.(2d) 26; 1992 CarswellOnt 65 (Gen. Div.), refd to. [para. 46].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1; 2002 SCC 84, refd to. [para. 47].

Ross v. Charlottetown (City) (2008), 276 Nfld. & P.E.I.R. 162; 846 A.P.R. 162; 2008 PESCAD 6, refd to. [para. 48].

Provenzano et al. v. Thunder Bay (City) et al., [2008] O.T.C. Uned. 956; 2008 CanLII 22147 (Sup. Ct.), refd to. [para. 51].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 2002 CanLII 45062 (C.A.), refd to. [para. 56].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 56].

Pellikaan v. Canada, [2002] F.T.R. Uned. 140; 2002 FCT 221, refd to. [para. 57].

Gratton-Masuy Environmental Technologies Inc. et al. v. Building Materials Evaluation Commission (Ont.) et al. (2010), 269 O.A.C. 279; 2010 ONCA 501, refd to. [para. 58].

Ravndahl v. Saskatchewan et al. (2009), 383 N.R. 247; 320 Sask.R. 305; 444 W.A.C. 305; 2009 SCC 7, refd to. [para. 61].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241; 1992 CarswellNat 25, refd to. [para. 71].

Burns et al. v. Workers' Compensation Board (B.C.), [2003] B.C.T.C. Uned. 836; 2003 BCSC 1826, refd to. [para. 73].

Counsel:

Rosemary Scott, Q.C., for the Workers Compensation Board of P.E.I.;

Ruth Demone, for the Attorney General of P.E.I.;

Peter Ghiz, for Gordon Richard Vail and Frederick Joseph McIver.

This motion was heard on October 21, 2010, at Charlottetown, P.E.I., before Campbell, J., of the Prince Edward Island Supreme Court, who delivered the following judgment on March 17, 2011.