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WORKERS' COMPENSATION - Interpretation - Persons not covered

Tuesday, November 27, 2018 @ 8:29 AM  

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Appeal by the Workers’ Compensation Appeal Tribunal (WCAT) from a decision that found its decision denying the respondent worker compensation was patently unreasonable. The worker, a flight attendant who lived in Manitoba, but worked out of Vancouver, experienced distress after an incident on a transpacific flight. She was awarded compensation for psychological injury. Her employer appealed on the basis the worker did not suffer a medically-recognized psychological injury. On its own initiative, the WCAT found that pursuant to s. 8 of the Workers Compensation Act, a worker who resided outside of British Columbia could not make a claim in respect of an injury that occurred in international airspace. It overturned the compensation award. On judicial review, the chambers judge found the decision was patently unreasonable and concluded the worker was entitled to claim compensation. The chambers judge admitted fresh evidence considered general background information on how flight attendants had historically been treated.

HELD: Appeal dismissed. The fresh evidence the chambers judge allowed to be admitted was not proper evidence on a judicial review. While the affidavits ought not to have been admitted, they did not play a substantial role in the chamber judge’s decision. The WCAT’s statutory interpretation exercise was inadequate and did not properly support its findings. The WCAT failed to consider all relevant provisions of the Workers Compensation Act, including whether the worker’s employment brought her within ss. 5 and 5.1 of the Act. The chambers judge was correct in finding the decision was patently unreasonable. He erred in finding the resulting interpretation was absurd. The matter was remitted to the WCAT to consider afresh the interpretation of the statute.

Air Canada v. British Columbia (Workers’ Compensation Appeal Tribunal), [2018] B.C.J. No. 3423, British Columbia Court of Appeal, H. Groberman, N.J. Garson and G. Dickson JJ.A., October 19, 2018. Digest No. TLD-November262018003