British Columbia Court of Appeal Upholds Workers’ Compensation Appeal Tribunal decision regarding passengers’ rights to sue for damages resulting from an aircraft accident

On October 27, 2011, an aircraft crash-landed near the Vancouver International Airport.  Six of the surviving passengers commenced a lawsuit against the aircraft operator seeking to recover damages arising from their injuries.  The passengers were flying to Kelowna to attend an annual retreat organized by an organization named “The Executive Committee” (“TEC”).  The TEC is a member-based community of over 900 chief executives, entrepreneurs, and business owners from across Canada.  The passengers were founders and CEOs of various companies.  TEC provides peer advice and support, through a “safe refuge” for executives to discuss work and personal issues.  Each TEC member is required to attend meetings and pay annual dues for membership.  The passengers’ dues were all paid by their companies.  The meetings involved a mishmash of work and personal issues ranging from business concerns to family problems.  The issue before the WCAT was a determination of whether the passengers were “workers” acting in the course and scope of their employment at the time of the accident.  In other words, should the passengers’ injuries be considered to have been suffered during work and covered by the Workers’ Compensation Board system in British Columbia.  If the passengers injuries were covered by the Workers’ Compensation Board regime, then they could not proceed with their civil action and could only apply for benefits through the WCB.

The aircraft operator argued that the workers were not members of TEC just to receive education and training or to maintain any sort of qualification, but to further their work as CEOs.  The aircraft operators argued that the passengers were on the flight for business purposes.  Counsel for the passengers argued that the purpose of TEC was to develop its members personally and professionally, and not to further the goal of their employers.  In an extensive decision, the WCAT decided that while there was evidence supporting each argument, the TEC activities on balance were more for the passengers’ own benefit in enhancing their general knowledge and skills in relation to their functioning as CEOs.  The activities were found to be not sufficiently connected to their employment.

The WCAT decision was then appealed to the British Columbia Supreme Court.  The Court noted that it was required to show deference to the WCAT’s decision as the WCAT is an expert tribunal.  In order to overturn the decision, it had to be found that the WCAT’s decision was “patently unreasonable”.  In other words, the WCAT’s decision could only be overturned if the evidence was incapable of supporting the Tribunal’s findings of fact.  The Court found that while there was evidence supporting the air operators’ arguments, there was also ample evidence supporting the WCAT’s decision.

The British Columbia Supreme Court’s decision was then appealed to the British Columbia Court of Appeal.  On February 1, 2017, the Court of Appeal upheld the decision of the WCAT.  The Court of Appeal again noted the deference owed to WCAT decisions and the fact that there was evidence to support the WCAT decisions, which could not be said to be patently unreasonable.

This case is of particular interest as involves activities that involved both professional and personal issues.  Some TEC meetings involved the discussion of specific business initiatives and strategies, while others discussed work-life balance and family problems.  Although the resolution of all of these issues could be translated into assistance in being a more effective CEO, the WCAT appeared to liken these TEC meetings as more educational and not sufficiently connected to work.  The British Columbia Court of Appeal’s decision has not been appealed to the Supreme Court of Canada.

Northern Thunderbird Air Inc. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 60

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