IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130128

Docket: 11 2913

Registry:
Victoria

Between:

Farid
Mouait

Plaintiff

And:

Michael
Fortin, G4S Cash Solutions (Canada) Ltd., G4S Solution Valeurs
(Canada) Ltee and Transportaction Lease Systems Inc.

Defendants

Before:
The Honourable Mr. Justice Steeves

Reasons for Judgment

[1]            
The defendants seek an order that the plaintiff’s claim in this action
is barred under ss.10 and 257 of the Workers Compensation Act, R.S.B.C.
1996, c. 492 (WCA).

[2]            
This action arose from a motor vehicle accident on August 28, 2009.
A first issue is whether the plaintiff is barred by s. 10 from an action
in tort in this court.

[3]            
In July 2012, the defendants sought an order under s. 257 from the
Workers’ Compensation Appeal Tribunal (WCAT) about a number of matters.  A WCAT
Certificate dated November 15, 2012 concluded that the plaintiff was a
worker under the WCA at the time of the accident and his employer was a
company controlled by the plaintiff, Vic Isle Building Maintenance Corporation
(VIM).  As well, VIM was a registered employer with the Board.  WCAT also
decided that, at the time of the accident, the defendant was a worker under the
WCA who was employed by an employer under that legislation.  Section 257
states that WCAT has the authority to make these determinations.

[4]            
Turning to s. 10 of the WCA, it states, in part, as follows

Limitation of actions,
election and subrogation

10(1) The provisions of this
Part are in lieu of any right and rights of action,  statutory or otherwise,
founded on a breach of duty of care or any other cause of action, . . . in
respect of any personal injury, disablement or death arising out of and in the
course of employment and no action in respect of it lies.  . . .

[5]            
The result of s. 10 of the WCA and the findings of WCAT is that
the plaintiff is statute barred from proceeding with a claim in tort for his
personal injuries.  Again, the plaintiff and the defendant were workers under
the WCA and their employers also came under the WCA.

[6]            
That is not the end of the matter.

[7]            
The plaintiff now says he is entitled to damages in tort in this action
for losses suffered by his company, VIM.  That is, the plaintiff, speaking for
VIM and not in his personal capacity, says that VIM had an economic loss
because of the injuries to the plaintiff from the August 2009 accident.  These
losses arose because the plaintiff could not work and earn income for VIM.  They
are recoverable in this action and they are not barred by s. 10 of the WCA,
according to the plaintiff.  The judgment in Singh v. Soper, 2012
BCSC 1312 (under appeal), is relied on.  On the other hand, the defendants
submit that these losses are part of the exclusive jurisdiction of the Board
under s.10 of the WCA.

[8]            
There is a threshold problem with the plaintiff’s submission inasmuch as
VIM is not a named plaintiff in this action.  The problem is that, as a legal
matter, an entity cannot seek a remedy in this court unless it is a party.  A
related matter is that the plaintiff has not applied under Rule 6-1 to add
VIM as a party.  Until that application is made, and is successful, the remedy
sought by VIM cannot be granted by this court.  Unfortunately it was not clear
until late in this hearing that there was in fact an application to amend the
pleadings.  It was not made before the hearing and the defendants had
essentially no notice of it.  I confirm my oral decision that I decline to
amend the pleadings, as requested by the plaintiff, for these procedural
reasons.

[9]            
In summary, I allow the defendant’s application that the plaintiff’s
action against the defendants be dismissed because it is barred pursuant to s. 10
of the WCA.  Any potential action that is available to VIM cannot be
decided until VIM is a party.

[10]        
Ordinary costs of this application are awarded to the defendants.

                 “J.J.
Steeves, J.”                    
The Honourable Mr. Justice Steeves