Accident on the way to employment related retreat did not arise “out of and in the course of employment”

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Worker, definition – In and out of the course of employment – Judicial review – Standard of review – Patent unreasonableness

Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), [2016] B.C.J. No. 1399, 2016 BCSC 1216, British Columbia Supreme Court, July 4, 2016, W. G. Baker J.

An airplane operated by the petitioner crash-landed on a public road shortly after taking off, resulting in injuries to a number of those onboard. Two civil actions were commenced against the petitioner by a total of six of the injured passengers. The plaintiffs in those actions were all members of a corporate “CEO peer-advisory group”, and at the time of the incident were travelling to an annual corporate retreat.

Pursuant to the provisions of the Workers Compensation Act, R.S.B.C. 1996, c. 492, parties to a civil action may request the Workers’ Compensation Appeal Tribunal (the “Tribunal”) determine whether a person was a worker at the time their cause of action arose, and whether the injury of a worker “arose out of, and in the course of, the worker’s employment” so as to engage the statutory bar on commencing an action for injuries otherwise compensable under that legislation.

The petitioner and the plaintiffs applied to the Tribunal for such a determination. The Tribunal determined that while the plaintiffs were generally all employees (with the exception of one, whom the Tribunal assumed without deciding was an employee), the injuries they suffered did not arise out of and in the course of their employment. In coming to this determination, the Tribunal referred to and quoted relevant policies put in place by the Workers’ Compensation Board, notably a policy document relating to whether education or training courses have a sufficient employment connection to be compensable under the legislation.

The petitioner sought judicial review of this decision, arguing in essence that the Tribunal’s decision did not show it had adequately grappled with the evidence put forward in favour of the petitioner’s position.

All parties agreed that, pursuant to the provisions of the Administrative Tribunals Act, S.B.C. 2004, c. 45, the Court could only interfere with the decision of the Tribunal if it was “patently unreasonable”. While a number of the respondents argued that the decision was discretionary in nature, such that additional requirements would need to be met for the decision to be patently unreasonable, Madam Justice Baker rejected this argument, and proceeded to apply the ordinary “patently unreasonable” standard.

In applying that standard, Baker J. noted that following Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, she was not to engage in two separate analyses, one being a review of the reasons for the decision and another being a review of the result. Baker J. was of the view the reasons provided by the Tribunal were more than adequate to permit review, noting the decision was 45 pages in length and dealt extensively with the facts in issue.

The Tribunal noted that the evidence was mixed, but ultimately found in favour of the respondents that the retreat lacked the sufficient connection for their injuries to have arisen out of and during the course of their employment. Baker J. noted that while there was evidence that could have supported a decision in the petitioner’s favour, there was equally evidence on which the Tribunal could have concluded as it did. The decision was therefore not patently unreasonable, and the petition was dismissed.

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