Mouait v. Fortin, 2013 BCSC 112

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Mouait v. Fortin, 2013 BCSC 112 Date: 20130128 Docket: 11 2913 Registry: Victoria Between: Farid Mouait Plaintiff And: Michael Fortin, G4S Cash Solutions (Canada) Ltd., G4S Solution Valeurs (Canada) Ltee and Transportaction Lease Systems Inc. Defendants Before: The Honourable Mr. Justice Steeves Reasons for Judgment Counsel for the Plaintiff: S. Missaghi Counsel for the Defendants: S. Kanji, agent for J. D. McAfee Place and Date of Trial/Hearing: Victoria, B.C. January 23, 2013 Place and Date of Judgment: Victoria, B.C.

January 28, 2013 [ 1 ] The defendants seek an order that the plaintiff’s claim in this action is barred under ss.10 and 257 of the Workers Compensation Act, R.S.B.C. 1996, c. 492 ( WCA ). [ 2 ] This action arose from a motor vehicle accident on August 28, 2009. A first issue is whether the plaintiff is barred by s. 10 from an action in tort in this court. [ 3 ] In July 2012, the defendants sought an order under s. 257 from the Workers’ Compensation Appeal Tribunal (WCAT) about a number of matters.

A WCAT Certificate dated November 15, 2012 concluded that the plaintiff was a worker under the WCA at the time of the accident and his employer was a company controlled by the plaintiff, Vic Isle Building Maintenance Corporation (VIM). As well, VIM was a registered employer with the Board. WCAT also decided that, at the time of the accident, the defendant was a worker under the WCA who was employed by an employer under that legislation.

Section 257 states that WCAT has the authority to make these determinations. [ 4 ] Turning to s. 10 of the WCA , it states, in part, as follows Limitation of actions, election and subrogation 10(1) The provisions of this Part are in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any other cause of action, . . . in respect of any personal injury, disablement or death arising out of and in the course of employment and no action in respect of it lies. . . . [ 5 ] The result of s. 10 of the WCA and the findings of WCAT is that the plaintiff is statute barred from proceeding with a claim in tort for his personal injuries.

Again, the plaintiff and the defendant were workers under the WCA and their employers also came under the WCA . [ 6 ] That is not the end of the matter. [ 7 ] The plaintiff now says he is entitled to damages in tort in this action for losses suffered by his company, VIM. That is, the plaintiff, speaking for VIM and not in his personal capacity, says that VIM had an economic loss because of the injuries to the plaintiff from the August 2009 accident. These losses arose because the plaintiff could not work and earn income for VIM.

They are recoverable in this action and they are not barred by s. 10 of the WCA , according to the plaintiff. The judgment in Singh v. Soper , 2012 BCSC 1312 (under appeal), is relied on. On the other hand, the defendants submit that these losses are part of the exclusive jurisdiction of the Board under s.10 of the WCA.

[ 8 ] There is a threshold problem with the plaintiff’s submission inasmuch as VIM is not a named plaintiff in this action. The problem is that, as a legal matter, an entity cannot seek a remedy in this court unless it is a party. A related matter is that the plaintiff has not applied under Rule 6-1 to add VIM as a party. Until that application is made, and is successful, the remedy sought by VIM cannot be granted by this court. Unfortunately it was not clear until late in this hearing that there was in fact an application to amend the pleadings.

It was not made before the hearing and the defendants had essentially no notice of it. I confirm my oral decision that I decline to amend the pleadings, as requested by the plaintiff, for these procedural reasons. [ 9 ] In

summary, I allow the defendant’s application that the plaintiff’s action against the defendants be dismissed because it is barred pursuant to s. 10 of the WCA . Any potential action that is available to VIM cannot be decided until VIM is a party. [ 10 ] Ordinary costs of this application are awarded to the defendants. “J.J. Steeves, J.” The Honourable Mr. Justice Steeves