The Public Guardian and Trustee (“PGT”) brought a petition against the Workers Compensation Board (“WCB”) and put forward a series of questions respecting the jurisdiction of the Court to exercise its parens patriae jurisdiction in relation to any “excess”, as per s.10(6) of the Workers Compensation Act R.S.B.C. 1996, c. 492 (“WCA”), recovered by the WCB in a subrogated claim relating to an infant. The Court found that the Court’s parens patriae jurisdiction did not apply in this case.

23. November 2010 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – Subrogated actions – Judicial review – Jurisdiction – Compliance with legislation – Jurisdiction of court – Protection matters – Children

British Columbia (Public Guardian and Trustee of) v. British Columbia (Workers’ Compensation Board), [2010] B.C.J. No. 2058, 2010 BCSC 1486, British Columbia Supreme Court, October 22, 2010, M.D. Macaulay J.

Following a fatal accident involving a worker, who was a husband/father, the mother/wife pursued to claim benefits under the WCA on behalf of herself and the infant. The WCB in turn pursued a Family Compensation Act claim in the name of the mother and her infant against persons not within the protection of the WCA.

Ultimately the WCB settled the action outside the court process and the issue of a s. 10(6) WCA “excess” was put forward. Under s. 10(6) of the WCA, if more money is recovered and collected in the subrogated claim than the amount of compensation to which the plaintiffs are statutorily entitled under the WCA, the amount of the excess, less costs and administrative charges, must be paid to the plaintiffs. The Court stated that the right to the excess by a dependent/worker crystallizes at the point when the excess comes into existence. This is because otherwise the WCB would receive a windfall since absent the subrogated claim there would not be an excess fund.

The PGT asked the Court a number of questions concerning its jurisdiction, including whether: (a) it had the jurisdiction to review whether the allocation of the excess, determined by the WCB as between the infant plaintiff and the mother, was fair and reasonable; (b) it had the jurisdiction to review whether the costs and administrative charges sought to be deducted by the WCB from infant plaintiff were fair and reasonable; (c) the Court had the jurisdiction to appoint a trustee in respect of the infant’s share of an excess; and (d) the WCB was obligated to seek the Court’s answers to the above questions when there was an excess. The Court answered the above questions in the negative. The Court held that the WCB had the requisite administrative powers to determine the above issues and that the exercise by the Board of its statutory administrative powers was generally beyond the reach of the Courts.

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