Ashraf v SNC Lavalin ATP Inc., 2013 ABQB 688

Court of Queen ’ s Bench of Alberta Citation: Ashraf v SNC Lavalin ATP Inc., 2013 ABQB 688 Date: 20131126 Docket: 1201 09737 Registry: Calgary Between: Shidan Ashraf Plaintiff/Appellant - and - SNC Lavalin ATP Inc. Defendant/Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _________________________________________ ______________

Appeal from the Judgment by K.R. Laycock, Master in Chambers Filed on the 6 th day of March, 2013; Dated the 6 th day of March, 2013 ( 2013 ABQB 143 , Docket: 1201 09737 ) I. Introduction [ 1 ] This is an appeal from the decision of Master Laycock dated March 6, 2013, dismissing the Appellant’s action as barred pursuant to

section 21 of the Workers’ Compensation Act , RSA 2000, c W-15 (the “ WCA ”): 2013 ABQB 143 . The issue on appeal is whether the Master erred in finding that the Appellant’s claim would properly be advanced pursuant to the WCA and is therefore outside the jurisdiction of this Court. [ 2 ] The Appellant also applies for leave of this Court to amend his Statement of Claim. II. Facts [ 3 ] According to the Statement of Claim, the Appellant, Shidan Ashraf, was employed as an engineer with the Respondent, SNC Lavalin ATP Inc. (“SNC”), starting June 16, 2003.

He has been off work and receiving long-term disability benefits since January 7, 2010. [ 4 ] Mr. Ashraf commenced an action against SNC for damages by Statement of Claim issued July 31, 2012, alleging that he was subjected to an escalating and systematic campaign of abuse, harassment and bullying by his immediate supervisor and the senior management team at SNC. He further alleges that this conduct undermined and marginalized him. [ 5 ] Mr.

Ashraf pleads that SNC failed to take steps to investigate and resolve the abuse, harassment and bullying he was suffering, and that SNC breached its duty of care to provide a safe and healthy work environment. In his Statement of Claim, he alleges that there was a toxic corporate environment fostered, condoned and/or tolerated by SNC. [ 6 ] As a result of this abusive conduct, Mr. Ashraf pleads that he suffered physical injuries, including carpal tunnel syndrome and arthritis in his hands and feet, development of peripheral neuropathy, lupus and swelling on his scrotum.

He also pleads he suffered from stress, humiliation and distress. Mr. Ashraf seeks damages for the difference between the long-term disability benefits he receives and his expected salary and benefits had he remained working at SNC, including annual increases, from January 7, 2010 to September 1, 2022, when he reaches 65 years of age. SNC did not terminate Mr. Ashraf, and Mr.

Ashraf does not claim constructive dismissal in the Statement of Claim, as filed. [ 7 ] Without filing a Statement of Defence, SNC brought an application before Master Laycock to strike or set aside the Statement of Claim, or, in the alternative, to stay the action, pursuant to Rules 3.68(1) , (2) (

a) and (2)(

b) of the Alberta Rules of Court , Alta Reg 124/2010 (the “ Rules of Court ”). The grounds for SNC’s application include that the Statement of Claim discloses no reasonable claim against SNC, that this Court has no jurisdiction in this matter, and that the Workers’ Compensation Board has exclusive jurisdiction, pursuant to sections 1(1) (a), 17(2) , 21(2) and 23 of the WCA . [ 8 ] Master Laycock concluded that Mr. Ashraf has a claim for workers’ compensation for the conduct alleged in his Statement of Claim. As a result, the Master found that the action is statute-barred pursuant to

section 21 of the WCA and he dismissed Mr. Ashraf’s action. He ordered Mr. Ashraf to pay costs of $2,233.30 into Court. [ 9 ] Mr. Ashraf now appeals Master Laycock’s decision to this Court. In conjunction with this Appeal, Mr. Ashraf also has brought an application to amend his Statement of Claim in the form attached at Tab 7 to his Brief of Arguments (the “draft Amended Statement of Claim”). The draft amendments include a claim for constructive dismissal. Mr.

Ashraf has also commenced a second action in the Court of Queen’s Bench in a form similar to the draft Amended Statement of Claim, including a claim for constructive dismissal (Court File Number 1301 05536) (the “Constructive Dismissal Action”). SNC brought an application to strike or set aside the Statement of Claim in the Constructive Dismissal Action as it is duplicitous of the allegations in this action. That application has been adjourned to a date following the release of these Reasons for Decision. III. Issues [ 10 ] The issues for determination before me are: A. Should Mr.

Ashraf be permitted to amend his Statement of Claim in the form attached at Tab 7 of the Appellant’s Brief of Arguments? B. Was Master Laycock correct in dismissing Mr. Ashraf’s action as barred by

section 21 of the WCA ?

IV. Standard of Review [ 11 ] The standard of review for an appeal of a master’s decision to a judge is correctness: Bahcheli v Yorkton Securities Inc , 2012 ABCA 166 , 524 AR 382 at para 30 . [ 12 ] An appeal of a master’s decision is based upon the record of the proceedings before the master, and may also be based on additional evidence that is relevant and material: Rules of Court , R 6.14(3).

As a result, an appeal from a master’s decision is, in essence, a de novo application: Van Camp v Chrome Horse Motorcycle Inc , 2012 ABQB 175 , 535 AR 271 at para 31 . [ 13 ] In addition to the record before Master Laycock, Mr. Ashraf filed an affidavit affirmed August 23, 2013. It contains transcripts of proceedings in this matter, as well as his analysis of a number of Workers’ Compensation Board Appeals Commission decisions. Although filed in affidavit form, I have reviewed and considered it as part of Mr. Ashraf’s submissions on appeal. [ 14 ] Mr.

Ashraf’s application to amend his Statement of Claim is a fresh application to be determined at first instance. V. Analysis A. Application to Amend the Statement of Claim (

i) Preliminary issue [ 15 ] Following Master Laycock’s decision, Mr. Ashraf applied to amend the Statement of Claim to add a claim for constructive dismissal. At the time Mr. Ashraf filed his application, the Statement of Claim had been struck in its entirety and Master Laycock had dismissed the action: 2013 ABQB 143 at para 26 . [ 16 ] Mr. Ashraf submits that he can bring his application to amend the Statement of Claim at any time before the appeal period is at an end.

SNC argues that the proposed amendment should be rejected by this Court as hopeless, as there is no live action and no Statement of Claim in play to amend. [ 17 ] The Alberta Court of Appeal addressed this issue in the context of applications for

summary judgment in Elbow River Marketing v Canada Clean Fuels Inc , 2011 ABCA 258 , 513 AR 315, rev’g 2011 ABQB 321 , 511 AR 356 [“ Elbow River Marketing ”]. In Elbow River Marketing , an application to amend a statement of claim was brought while an appeal of a master’s decision summarily dismissing the action was pending. As in the present case, the application to amend the statement of claim had not been before the master and was brought after the master’s decision was released. A Justice of the Court of Queen’s Bench allowed the appeal of the

summary judgment application and reversed the dismissal of the action, but refrained from deciding the application to amend the statement of claim. The Court of Appeal allowed the appeal and returned the matter to the Court of Queen’s Bench, directing that an outstanding application to amend a statement of claim must be addressed before considering an application for

summary judgment, and stating that the Court’s failure to do so was a reversible error: para 3. In Condominium Corp No 0321365 v 970365 Alberta Ltd , 2012 ABCA 26 , 519 AR 322, the Court of Appeal noted that resolving an outstanding application to amend pleadings prior to considering a

summary judgment application on its merits is “the proper procedure and one that ought to be followed as a matter of good practice”: para 3. [ 18 ] An application to strike a statement of claim in its entirety and an application for

summary judgment both may result in the

summary dismissal of an action. It is equally important on an application to strike a statement of claim as on an application for

summary judgment that pleadings be settled. Applying the Court of Appeal’s direction in Elbow River Marketing , I will first consider Mr. Ashraf’s application to amend his Statement of Claim before determining the appeal of Master Laycock’s decision to strike the Statement of Claim. (ii) Whether amendment of Statement of Claim is permitted [ 19 ] Mr. Ashraf included a draft Amended Statement of Claim at tab 7 of the Appellant’s Brief of Arguments. It proposes to add details to the factual narrative, although the harm alleged and the nature of the conduct alleged against SNC remains substantially the same.

It appears that although Mr. Ashraf seeks to add more details to his claim, the amendments relate to the same series of events, culminating in his disability. In the original Statement of Claim, Mr. Ashraf seeks general, special, exemplary, aggravated and punitive damages as a result of SNC’s conduct, and values his loss of income and benefits to be more than $5 million. In the draft Amended Statement of Claim, Mr.

Ashraf frames his damages claim as a claim for compensation in lieu of notice as a result of constructive dismissal, compensation for deprivation of professional practice, compensation for loss of earnings, compensation for damages to reputation and compensation for stigma, as well as for aggravated and punitive damages. The amendments are not underlined or otherwise identified in the draft Amended Statement of Claim. [ 20 ] SNC has not filed a statement of defence. As a result, the time for reply has not yet commenced and the pleadings are not closed: Rules of Court , R 3.67.

A party does not need the permission of the Court to amend his or her pleading where pleadings have not closed: Rules of Court , R 3.62(1)(a). While Mr. Ashraf could amend his Statement of Claim pursuant to Rule 3.62, I note that any amendment must be dated and identified, and the amended statement of claim must be identified as such: Rules of Court , R 3.63(2). Traditionally, amendments are shown by coloured underlining: WA Stevenson & JE Côté, Alberta Civil Procedure Handbook, 2011 , vol 1 (Edmonton: Juriliber, 2011) at 3-94. [ 21 ] I find Mr.

Ashraf is entitled to amend his Statement of Claim as proposed at tab 7 of the Appellant’s Brief of Arguments, subject to Mr. Ashraf underlining the amendments and referencing the document as the “Amended Statement of Claim”. In determining

his appeal of Master Laycock’s decision to strike the Statement of Claim and dismiss the action, I have considered the draft AmendedStatement of Claim. B. Was Master Laycock correct in dismissing the action as barred by

section 21 ofthe WCA? (

i) Effect of WCA

section 21 [22] SNC brought an application to strike or set aside the Statement of Claim, or, in the alternative, to stay the action, pursuant tothe Rules of Court, R 3.68(1), (2)(

a) and (2)(b), which provide: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; … [23] SNC argues that Mr. Ashraf’s injuries were suffered in the course of his employment, and that the WCA therefore applies andthe Workers’ Compensation Board has jurisdiction.

Section 21 of the WCA bars any legal action brought outside the workers’compensation regime. It provides: 21(1) No action lies for the recovery of compensation under this Act and all claims for compensation shall be determined by the Board.

(2) This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker, the worker’slegal personal representatives or the worker’s dependents are or might become entitled against the employer of the worker by reason ofany accident happening to the worker, and no action in respect of that accident lies against the employer. [24] Workers’ compensation was established as a no-fault, government-administered insurance system based upon a trade-offbetween the loss of a right to sue an employer, on one hand, and, on the other hand, the advantages of “benefits that are paidimmediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system”: Pasiechnyk vSaskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 SCR 890 [“Pasiechnyk”] at para 26.

In Pasiechnyk,the Supreme Court of Canada cites Medwid v Ontario (Minister of Labour) (1988), (ON SC), 63 OR (2d) 578, 48 DLR (4th) 272 (Ont HC) at 279 for the four fundamental principles that underpin the workers’ compensation system: (

a) compensation paid to injured workers without regard to fault; (

b) injured workers should enjoy security of payment; (

c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and (

d) compensation to injured workers provided quickly without court proceedings: para 27. [25] It is in this context that the Alberta workers’ compensation regime results in a statutory bar prohibiting any legal actionagainst an employer when the WCA applies. [26] In the present case, Master Laycock agreed with SNC and concluded that Mr. Ashraf has a claim under Alberta’s workers’compensation regime. As a result, the Workers’ Compensation Board has exclusive jurisdiction over his claims, and

section 21 of theWCA applies to bar his lawsuit. The crux of the appeal is whether Master Laycock correctly concluded that the WCA applies to Mr.Ashraf’s claim. (ii) Application of WCA to Mr. Ashraf’s claim [27] In determining whether the WCA applies to Mr. Ashraf’s claim, I must consider four issues: first, does the WCA apply to Mr.Ashraf’s employment with SNC; second, does the claim asserted by Mr. Ashraf allege an “accident” as defined in the WCA; third, are theinjuries for which Mr. Ashraf seeks damages included in Alberta’s workers’ compensation regime; and fourth, is Mr.

Ashraf’sconstructive dismissal claim within the jurisdiction of Alberta’s Workers’ Compensation Board. These issues are considered below.

(1) Does the WCA apply to SNC? [28] The WCA applies to “all employers and workers in all industries in Alberta except the employers and workers in the industries

designated by the regulations as being exempt”: WCA, s 14(1). SNC asserts that it operates in an industry to which the WCA applies:Brief of the Defendant in the Master’s Special Chambers Application, para 6. [29] In Medicine Hat (City of) v Wilson, 2000 ABCA 247, 271 AR 96 [“Wilson”], the Court of Appeal considered

section 16 ofthe WCA, which is a precursor to

section 21 of the WCA and contains substantially the same terms. Mr. Justice Côté, for the majority,held at paras 22-23: I have no doubt that

section 16 was designed to bar a suit by a worker against his or her own employer for any alleged work-relatedinjury. In my view, the quoted words of s. 16(2) suffice to achieve that result. Nor do I think that that result should surprise anyone, letalone disappoint legitimate expectations.

Section 16 is not framed in conditional terms. There are no prerequisites to satisfy, except employment. Existence of an “accident” is notreally a prerequisite. It is enough that the suit in question allege what would be an accident. [30] The workers’ compensation regime in Alberta therefore applies to SNC in circumstances where an “accident”, as defined inthe WCA, is alleged.

(2) Does Mr. Ashraf allege an “accident” pursuant to the WCA? [31] Mr. Ashraf seeks damages for psychological and physical injuries. By way of his draft Amended Statement of Claim, he alsoseeks damages for constructive dismissal. Subject to issues (3) and (4) below, if the injuries claimed by Mr. Ashraf are alleged to havebeen caused by an “accident”, Mr. Ashraf must proceed under the workers’ compensation regime and his action in this Court cannotproceed: WCA, ss 21(1), (2). [32] SNC argues that Mr. Ashraf’s claim arises out of an alleged “accident”, as defined in the WCA. “Accident” is broadly definedin section 1(1)(

a) of the WCA, as follows: 1(1) In this Act, (a) “accident” means an accident that arises out of and occurs in the course of employment in an industry to which this Act appliesand includes (

i) a wilful and intentional act, not being the act of the worker who suffers the accident, (ii) a chance event occasioned by a physical or natural cause, (iii) disablement, and (iv) a disabling or potentially disabling condition caused by an occupational disease; [33] This definition is broader than the common meaning of “accident” in everyday usage. Included as an “accident” is a categoryfor wilful and intentional acts.

This Court has held that an assault fits into that category and is an “accident” for the purpose of workers’compensation: Buettner v Base-Fort Patrol Ltd (1986), (AB KB), 73 AR 69. [34] In the present case, SNC submits that Mr. Ashraf alleges he suffered injuries that are a disablement pursuant to the WCA, s1(1)(a)(iii), which is an “accident” for the purpose of workers’ compensation. SNC further submits that the systematic campaign ofabuse alleged by Mr. Ashraf is a wilful and intentional act under the definition of “accident” in the WCA. [35] Mr.

Ashraf takes issue with SNC’s position that the cause of his disability was an accident. He argues that the deliberate andongoing campaign of abuse, harassment and bullying he suffered in the workplace was not an accident. Mr. Ashraf relies upon variousWCB policies in support of his position. He also undertakes a detailed analysis of the cases cited by SNC and lists characteristics of an“accident” drawn from the WCA and WCB policies that he says must all be present in order for the workers’ compensation scheme toapply. The factors Mr.

Ashraf asks this Court to apply, and his position on each factor, are as follows: 1. Whether the events arise out of and occur in the course of employment, according to s 1(1)(

a) of the WCA Mr. Ashraf agrees that they do. 2. Whether the events happened in an industry to which the WCA applies Mr. Ashraf agrees that the WCA applies to SNC. 3. Whether the events were caused by either an intentional or unintentional act Mr. Ashraf agrees that the events were intentional, but submits that intent is inconsequential for the purpose of the definition of“accident”. 4. Whether the events were unexpected, chance events occurring randomly Mr. Ashraf submits that SNC’s conduct leading to his injuries was a non-random, systematic campaign, and that this factor is notsatisfied. 5.

Whether the events were part of the employer’s normal insured activities Mr. Ashraf submits that SNC’s systematic campaign of abusive conduct was not part of SNC’s normal insured activities.

6. Whether the events were caused by an inherent hazard of employment Similarly, Mr. Ashraf submits that SNC’s systematic campaign of abusive conduct was not an inherent hazard of his employment as an engineer working in an office. [Appellant’s Brief of Arguments at 17-18] [ 36 ] The list of events and acts that fall under the definition of “accident” in the WCA s 1(1)(

a) is inclusive, not conjunctive. It is not necessary that an event or act satisfy each subparagraph listed under this section: (

i) wilful and intentional; (ii) a chance event; (iii) leading to disablement; and, (iv) a disabling or potentially disabling condition caused by an occupational disease. Mr. Ashraf encourages this Court to define “accident” as wilful and intentional, as well as a chance event. He further requests that this Court import other requirements for an “accident” from WCB policies. I disagree with this approach. [ 37 ] The WCB policies do not assist Mr. Ashraf’s position.

They are presumably applied by the Workers’ Compensation Board when it is considering the merits of a claim and whether to award compensation, not when considering the jurisdiction of the Workers’ Compensation Board in the first place. In any event, the policies cited by Mr. Ashraf do not conflict with the definition of “accident” in the WCA , which remains the applicable definition for the purpose of determining if the WCA applies and the Workers’ Compensation Board has jurisdiction. For example, WCB Policy 02-01,

Part I (November 26, 1996) provides

interpretation of the meaning of “accident” as follows: 1.0 “Accident” is used in the usual and ordinary sense, and means an unexpected mishap or event. For the purposes of workers’ compensation, “accident” also includes the circumstances defined in the four subclauses of s.1(1)(

a) of the Act. The meaning of accident is satisfied when it can be shown that a worker’s employment has contributed to personal injury, occupational disease, or death. [ 38 ] In Alberta, it has been accepted that ongoing or continuous conduct can be considered an “accident” for the purpose of workers’ compensation. In Wilson , the workers complained of injuries caused by exposure over time to chemicals. The Court of Appeal in that case concluded that the injuries fell within the definition of “accident”.

Further, harassment by a co-worker has been accepted by the Workers’ Compensation Board as a cause of a work-related injury.

The Appeals Commission for Alberta Workers’ Compensation held that ongoing harassment by a co-worker was the predominant cause of a worker’s major depressive disorder, and concluded that the worker had an acceptable claim for chronic onset stress: Appeals Commission for Alberta Workers’ Compensation (April 20, 2006), Docket No 26603, Decision No 2006-375 [“Decision No 2006-375”] at paras 26 and 31. [ 39 ] The threshold question as to whether the workers’ compensation scheme applies is whether an “accident”, as defined in the WCA , is alleged.

The WCB policies apply at a later stage, when the Workers’ Compensation Board is considering the merits of a claim to determine if compensation should be ordered. The systemic campaign of abuse in the workplace and resulting injuries suffered, as alleged by Mr. Ashraf, fall under the definition of “accident” in the WCA as both a “wilful and intentional act” and a “disablement”: WCA , s 1(1)(a)(

i) and (iii). [ 40 ] Mr. Ashraf’s claim for damages for constructive dismissal in his draft Amended Statement of Claim arises out of the same allegations of systemic abuse, harassment and bullying, and the amendments relate to the same series of events. Adding a claim for constructive dismissal in these circumstances does not alter my conclusion that Mr. Ashraf’s allegations fall under the definition of “accident” for the purpose of workers’ compensation.

(3) Are the injuries alleged by Mr. Ashraf compensable under the WCA ? [ 41 ] Mr. Ashraf alleges both physical and psychological injuries, including stress.

In some provinces, chronic stress is not compensable under workers’ compensation legislation and is expressly excluded: Geoffrey England, Roderick Wood & Innis Christie, Employment Law in Canada , loose-leaf (consulted on 15 October 2013), (Markham, Ont: LexisNexis Canada Inc, 2005) at 9.108; The Workers Compensation Act , CCSM c W200, s 1(1); Workers’ Compensation Act , SNS 1994-95, c 10, s 2; Workers’ Compensation Act , RSNB 1973, c W-13, s 1. [ 42 ] In contrast, psychological injuries, including stress, are not specifically addressed in the WCA .

These injuries are compensable under Alberta’s workers’ compensation regime. The Alberta Court of Appeal has noted that the board of directors of the Workers’ Compensation Board has established eligibility criteria for compensation for psychological or psychiatric injury caused in the workplace: Martin v Alberta (Workers’ Compensation Board) , 2012 ABCA 248 , 536 AR 121 at para 5 , leave to appeal granted [2012] SCCA No 457; WCB Policy 03-01,

Part II, “Application 6: Psychiatric or Psychological Disability” (February 24, 2004). [ 43 ] In addition, decisions of the Workers’ Compensation Board demonstrate that they consider claims for compensation for psychological injuries, including stress. Examples where compensation has been awarded include the following: Decision No 2006-375; Appeals Commission for Alberta Workers’ Compensation (May 10, 2012), Docket No 47129, Decision No 2012-434; Appeals Commission for Alberta Workers’ Compensation (July 7, 2006), Docket No 23670, Decision No 2006-714.

The Workers’ Compensation Board has also considered and denied claims for compensation for psychological injuries in the following examples: Appeals Commission for Alberta Workers’ Compensation (February 5, 2009), Docket No 34943, Decision No 2009-102; Appeals Commission for Alberta Workers’ Compensation (September 3, 2012), Docket No 41696, Decision No 2010-682; Appeals Commission for Alberta Workers’ Compensation (May 27, 2011), Docket No 43345, Decision No 2011-434; Appeals Commission for Alberta Workers’ Compensation (March 13, 2012), Docket No 46538, Decision No 2012-238. [ 44 ] SNC submits that whether an alleged incident involving stress or psychological harm is compensable under the workers’ compensation scheme is a question for the Workers’ Compensation Board and is irrelevant to the issue of jurisdiction: Brief of Argument of the Respondent for the Appeal, para 16.

However, the threshold question as to whether the WCA precludes such claims is relevant to jurisdiction. If a claim is expressly excluded from the workers’ compensation regime, the claimant may have to seek other remedies.

[45] In Alberta, there is no such exclusion of claims for stress or psychological harm. Therefore, it is up to the Workers’Compensation Board to determine if compensation will be granted for psychological injuries, including stress, that arise out of workplaceaccidents.

(4) Is the constructive dismissal claim within the jurisdiction of Alberta’s Workers’ Compensation Board? [46] In his draft Amended Statement of Claim, Mr. Ashraf alleges that the systemic abuse, harassment and bullying by hissupervisors created a toxic and hostile working environment: draft Amended Statement of Claim, paras 3.69-3.72. This is the samecircumstance I have found to constitute an “accident” for the purpose of workers’ compensation in Alberta. In essence, Mr.

Ashrafalleges that a hostile work environment caused him physical and mental injuries, and also resulted in his constructive dismissal. [47] In Howard v Alberta Pacific Forest Industries Inc, 1999 ABQB 974, 256 AR 110 [“Howard”], this Court struck portions of aStatement of Claim alleging wrongful dismissal, although a paragraph claiming special damages resulting from the wrongful dismissalwas not struck. The Plaintiff alleged she was exposed to toxic hydrogen fumes as a result of her employer’s negligence. Her workers’compensation claim was denied.

She brought an action for wrongful dismissal and loss of income for the difference between her short-term disability payments and her regular salary. She had been on short-term disability and a modified work contract, and wassubsequently dismissed without notice.

In considering the motion to strike paragraphs relating to wrongful dismissal, the Court noted:“Clearly, the bar pertains to actions in respect of which the worker is or might become entitled against the employer by reason of anyaccident happening to the worker”: para 8. [48] In Howard, the Court struck the portions of the Statement of Claim alleging loss of income prior to the alleged wrongfultermination of her employment: ...Obviously, loss of income prior to termination could not have been caused by the termination.

Rather, the inference is that income lossprior to termination was due to the Plaintiff’s disability, which she alleges arose as a result of her exposure to toxic chemicals, or possiblydue to the “other particulars of the contractual breach” referred to in para. 6 of the Statement of Claim. In para. 25, the Plaintiff alleges loss of income prior to termination in an amount equal to the difference between the Plaintiff’s regularsalary, and her short-term disability payments.

In the context of the Statement of Claim as a whole, the only possible ground for thisincome loss claim is a work-related injury, and therefore para. 25 should be struck: paras 13-14. [49] In the labour law context, a court will look at the “essential character” of a dispute to determine whether a matter falls withinthe jurisdiction of a collective agreement. “In each case the question is whether, in its essential character, the dispute arises from the

interpretation, application, administration or violation of the collective agreement”: Abrams v Oishi, 2009 ABQB 446, 12 Alta LR (5th)102 at para 34; Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 at para 52. [50] I apply this approach to the determination of whether a matter falls within the jurisdiction of the Workers’ CompensationBoard. It is necessary to examine the essential character of a claim. Otherwise, a party could avoid the statutory bar in workers’compensation matters simply by asserting that a workplace accident gave rise to constructive dismissal.

If the essential character of adispute arises out of an “accident” as defined in the WCA, then the Workers’ Compensation Board has jurisdiction “instead of all rightsand causes of action, statutory or otherwise” that the worker may otherwise have: WCA, s 21(2). Further, the determination as to whetherthe statutory bar applies is a matter for the Workers’ Compensation Board.

The Supreme Court of Canada has held that “...the legislatureintended to commit exclusively to the Board the question of whether the statutory bar applied”: Pasiechnyk at para 28. [51] Author Geoffrey England has summarized types of employee harassment and unfair treatment where Canadian courts havefound constructive dismissal: Geoffrey England, Individual Employment Law, 2d ed (Toronto: Irwin Law Inc, 2008) at 356-358.Depending on the specific facts in a case, these have included “systematically marginalizing an employee and building a paper trail ofhis performance deficiencies in the hope that he would quit” and “failing to protect the employee against personal intimidation,harassment and bullying”: England at 357.

However, in the present case, the constructive dismissal claim asserted in the draft AmendedStatement of Claim appears to arise exclusively out of a series of events that I have found are an “accident” for the purpose of Alberta’sworkers’ compensation regime. Like in Howard, Mr. Ashraf’s loss of income claim stems from an alleged work-related injury.Therefore, based on the circumstances of this case, I find that Mr.

Ashraf’s claim in its entirety is within the jurisdiction of the Workers’Compensation Board, and it is for the Workers’ Compensation Board to determine whether the statutory bar applies to all aspects of Mr.Ashraf’s claim, including his claim for constructive dismissal.

(5) Conclusion on Jurisdiction [52] Mr. Ashraf’s claim falls within the jurisdiction of Alberta’s workers’ compensation scheme, and is within the jurisdiction ofthe Workers’ Compensation Board. His claim arises out of an “accident”, as defined in the WCA, s 1(1)(a). It is for the Workers’Compensation Board to determine whether he is entitled to compensation for his injuries, and if the statutory bar applies to hisconstructive dismissal claim. Mr. Ashraf must follow the policies and procedures set out in Alberta’s workers’ compensation scheme toadvance his claim, including those governing any appeal or review. Mr.

Ashraf is accordingly precluded from bringing a legal actionpursuant to the WCA, s 21. I conclude that Master Laycock was correct in striking the Statement of Claim in its entirety, pursuant to theRules of Court, R 3.68(1). If the Statement of Claim was amended in accordance with paragraphs 19-21 above, I would strike it in itsentirety on the same basis. VI. Conclusion [53] Mr. Ashraf’s claim against SNC is barred pursuant to

section 21 of the WCA. As a result, the appeal of the decision of MasterLaycock dated March 6, 2013 is dismissed.

[ 54 ] While Mr. Ashraf is entitled to amend his Statement of Claim, I would strike it in its entirety. [ 55 ] SNC is entitled to its costs of this proceeding, fixed at $2,000.00 plus disbursements. I have fixed the costs in accordance with the Tariff of Recoverable Fees in the Rules ,

Schedule C under item 8(1), column 5 for a half day application where a brief is required. The parties have 10 days from the date of this judgment to advise me if there were any formal offers to settle made pursuant to the Rules of Court, R 4.24 that may impact on the cost award. [ 56 ] The costs of the hearing before Master Laycock, fixed in the amount of $2,233.30 and paid into Court by Mr. Ashraf on May 14, 2013, shall be paid out of Court to SNC. Heard on the 27 th day of August, 2013. Dated at the City of Calgary, Alberta this 26 th day of November, 2013. Bryan E. Mahoney J.C.Q.B.A.

Appearances: Shidan Ashraf Plaintiff/Appellant Not represented by counsel Steve T. Eichler and Tiffany Franklin Field LLP for the Defendant/Respondent