Gay v Alberta (Workers’ Compensation Board), 2022 ABKB 597

Court of King’s Bench of Alberta Citation: Gay v Alberta (Workers’ Compensation Board), 2022 ABKB 597 Date: 20220930 Docket: 1903 25449 Registry: Edmonton Between: Dale Gay Respondent/Plaintiff - and - The Workers' Compensation Board (Alberta) Applicant/Defendant _______________________________________________________ Memorandum of Decision of the Honourable Justice Donald Lee _______________________________________________________ Introduction [1] The Defendant, Workers’ Compensation Board (“WCB”), brings an application pursuant to Rule 3.68 to strike the Plaintiff’s Dale Gay’s (“Gay”) Statement of Claim against the “WCB” on the basis that the Court has no jurisdiction and/or it fails to disclose any reasonable claim. [2] Gay was injured in a workplace accident on December 17, 2005, while working as a gas plant operator.

The WCB originally only recognized an injury to his left knee. However, Gay suffered a secondary injury during treatment in August 2006 when injections were given to assist with respect to the treatment of the additional injury to his left knee. In December 2017, the WCB Dispute Resolution and Decision Review Body (“DRDRB”) found that the pain/neurological pain in Gay’s left leg was due to the secondary

injury. I understand that his file remains active currently. The WCB’s Application Rule 3.68 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; ... (2) (

a) the Court has no jurisdiction; (

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

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). Issues [3] Pursuant to the WCB’s Rule 3.68 Application, does the Court have any jurisdiction and/or does the Statement of Claim disclose any reasonable cause of action or factual foundations which would support a reasonable claim? [4] The Relevant Aspects of WCB’s Rule 3.68 Application allows the Court discretion, that is, the Court may strike a Statement of Claim if the Court has no jurisdiction pursuant to 3.68(2)(

a) or if it discloses no reasonable claim pursuant to 3.68(2)(b). No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). Analysis [5] Gay’s Statement of Claim is lengthy as evidenced by the copy which has been attached and marked as

Schedule A to this decision. The Statement of Claim alleges a number of torts, and while the Court must assume that the facts pled in the Statement of Claim are true, the Court must still determine, even if those facts are true, whether they support any reasonable cause of action. [6] Gay submits that his Statement of Claim discloses reasonable or novel causes of action and ought not to be struck. Furthermore, the WCB does not meet the high onus on an application to strike under Rule 3.68. [7] I agree that the WCB must meet a high onus.

Each case depends on the facts alleged in the Statement of Claim and the whole of the Statement of Claim must be read altogether and not parsed for an application to strike. The Statement of Claim is to be read generously to allow for any inadequate drafting deficiencies, and the specific elements of a cause of action need not be specifically plead when the facts alleged support them. Gay argues that it is not plain and obvious that the Statement of Claim discloses no reasonable cause of action, and the assertions made in the Statement of Claim do not impair further proceedings.

The WCB has filed a Statement of Defence herein. [8] Gay submits that the WCB did not meet its obligation to Gay by committing acts of misfeasance, negligence and unjust enrichment. For ease of reference, the WCB had categorized Gay’s identifiable claims under the following categories: i. Administrative Actions ii. Negligence iii. Defamation iv. Unjust enrichment v. Breach of duty of good faith vi.

Misfeasance in a public office i The ''Administrative Actions" [9] In the Statement of Claim, with reference to the adjudication of the Plaintiffs claim for workers' compensation benefits, the Plaintiff alleges errors in the: - application of WCB policy and, or legislation (paragraphs 13, 16 (k, r, bb), 24, 25, 46, 54); and - decisions made by the WCB (paragraphs 16 (a, b, c, d, e, f, g, h, i, j, 1, m, n, o, p, q, s, t, w, z, aa, bb, dd, ee, ff, gg), 21, 31, 35, 37, 41, 43, 45, 46, 47, 48, 51).

These paragraphs are collectively referred to as the "Administrative Actions". [10] I conclude that the Administrative Actions ought to be struck from the Statement of Claim under Rule 3.68(2)(

a) as the Courtlacks the jurisdiction to adjudicate these matters. The claims regarding the Administrative Actions fall exclusively within the jurisdictionof the WCB, so they ought to be struck from the Statement of Claim as the Court has no jurisdiction to adjudicate the AdministrativeActions, and they disclose no reasonable cause of action. ii. Allegations of "Negligence" [11] The Statement of Claim pleads negligence but does not explicitly describe the alleged negligent acts.

The Statement of Claimalleges negligence in the following paragraphs: 16 (a, b, c, e, u, cc, hh, ii), 18, 19, 30, 23, 28, 32, 34, 49, 50. These paragraphs arecollectively referred to as the "Negligence Claims". [12] The Statement of Claim does not allege that the WCB or any of its decision​ makers acted without the honest belief that theirdecisions were within the jurisdiction of the WCB.

As a result, there are no facts pled in the Statement of Claim which, if true, woulddisclose a reasonable cause of action since the WCB is immune from suit pursuant to section 17(2) of the Act when decisions are madein the honest belief of jurisdiction. Additionally, the WCB does not owe a duty in tort to injured workers. [13] As such, the Negligence Claims disclose no reasonable cause of action and should be struck. iii. Allegations of "Loss of Reputation" [14] The Plaintiff alleges that his reputation was tarnished (paragraph 16(y)) (the "Loss of Reputation Claim").

Assuming that thePlaintiff is pleading the tort of defamation, the factual and legal basis for this claim is unclear as there are insufficient facts in theStatement of Claim which, if true, would support a claim of defamation. There is no allegation that "words" were communicated weredefamatory, referred to the Plaintiff, or were published by the WCB. [15] Accordingly, the Loss of Reputation Claim discloses no reasonable cause of action, has no reasonable prospect of success, andought to be struck from the Statement of Claim. iv.

Allegations of "Unjust Enrichment" [16] The Plaintiff alleges that the WCB was unjustly enriched by its actions (paragraph 33) (the "Unjust Enrichment Claim"),however there are no facts pled in the Statement of Claim which, if true, could lead to the conclusion that the WCB was enriched,unjustly or at all. v. Breach of the Duty of Good Faith (the "Good Faith Claims") [17] The Statement of Claim alleges that the WCB breached a duty of good faith (paragraphs 12, 14, 16 (u, v, kk), 22, and 50): the"Good Faith Claims". There is no independent tort for bad faith.

Bad faith, or breach of a "duty of good faith" is properly the tort ofabuse of or misfeasance in public office: Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at para 78. [18] With respect to misfeasance in a public Office, the Statement of Claim alleges that the WCB: a. acted with the intention to cause injury to the Plaintiff (paragraphs 15, 44), b. abused or overstepped its authority (paragraphs 16 Gj, 11), 38, 39, 40, 42), and c. acted in bad faith or with improper purpose (paragraphs, 16 (u, v, kk)).

These paragraphs are collectively referred to as the "Misfeasance Claims". [19] The legal test for misfeasance in a public office requires that a public officer: 1- Acted with the intention to specifically injure the Plaintiff; or 2- Engaged in deliberate, unlawful conduct in the exercise of public functions; 3- Was aware that the conduct was unlawful; and 4- Knew that the conduct was likely to injure the plaintiff. vi. Shuchuk v Wolfert [20] Regarding the Misfeasance Claims, Gay relies heavily on Shuchuk v.

Wolfert, in which Master Funduk had struck out theStatement of Claim against the WCB in a short-written decision 2001 ABQB 500 , 2001 ABQB500: [1] Anyone who has not been living in a sealed glass bubble on an ocean floor for the last 25 years knows that there is a measureof dissatisfaction by some injured workers with The Workers Compensation Board. That is what this lawsuit is about. [2] What this lawsuit comes down to is Mr. Nickerson’s view that The Workers Compensation Board is just a glorified

insurance company with a monopoly. He then wants to progress from that to conclude that like private insurers The Workers Compensation Board must act uberrimae fide, which normally exists only in certain contract situations. But The Worders Compensation Board is not a private insurer and the relationship between injured workers and The Workers Compensation Board is not one of contract. Its duties are statutory. [3] Here the Plaintiff was assessed as having temporary total disability. Some time later the Plaintiff was reassessed, which The Workers Compensation Board can do: s. 33 Worker’s Compensation Act .

The Plaintiff complains about his being reassessed, which is a complaint about how his file was handled. As I interpret his position, the Plaintiff essentially wants to be classified as having a permanent total disability and he should never be reassessed notwithstanding the fact that s. 33 gives The Workers Compensation Board the jurisdiction to reassess. [4] It is not the Court’s function to rewrite legislation. ... [21] On appeal, 2001 ABQB 937 Justice Marceau, then of this Court, said those parts of the Statement of Claim related to public misfeasance ought not to have been struck out by the Master.

He found the Statement of Claim did not only seek to appeal the findings of the WCB, for which there is a limited right of statutory appeal that the Court had no jurisdiction to review under the Rule, but for that the Statement of Claim to get struck out entirely, there had to be a fatal flaw in the pleadings.

The WCB had to show that no cause of action existed, or something in the pleadings was clearly frivolous, vexatious or scandalous that it amounts to an abuse of process. [22] In Shuchuk , Marceau J. found the words vindictive, malicious, biased and breach of a duty of good faith can be construed as claiming the tort of abuse of public office or misfeasance in public office. In addition, Shuchuk , found that dishonesty, bad faith and improper purpose can be used interchangeably in describing the tort of abuse of public office.

Although s. 12(2) of the Workers’ Compensation Act gives immunity to WCB for acts done in the honest belief they are within the jurisdiction of WCB, if the tort of abuse of public office is established, then the acts of the WCB are not with an honest belief and the WCB does not have immunity for its actions. [23] Our Court of Appeal affirmed the Queen’s Bench decision in Shuchuk at 2003 ABCA 109 .

The Court of Appeal in its oral decision confirmed the WCB’s exclusive jurisdiction, which effectively extinguished most of Shuchuk’s Statement of Claim against it as follows at para 2: [2] The statement of claim issued by the respondent advanced a number of claims against several persons employed by, or contracted to, The Workers’ Compensation Board (“The Board”) respecting dealings the respondent had with those persons regarding injuries he suffered in a work-related accident.

All of the claims, except for the one that leads to this appeal, were struck by the chambers judge on the basis that s. 12 of The Workers’ Compensation Act (“ Act ”) barred them. This

section provides that The Board has exclusive jurisdiction to deal with work- related injuries and decisions regarding those injuries are not subject to court review, provided that they are made “in the honest belief that [they are] within the jurisdiction of the Board”. [24] However, at para 3 of Shuchuk the Court of Appeal said that although there may be some commonality between WCB compensation and damages for abuse of public office, the tort of abuse of public office is based on fault, so that the award of compensation under the Workers’ Compensation Act does not preclude an award of damages for abuse of public office.

Conclusion [25] I conclude that the present matter is unlike Shuchuk in that Gay alleges without any supporting material facts, that the WCB generally intended to injure him or otherwise acted unlawfully. Gay also did not name any WCB officials specifically.

This is unlike Shuchuk, where several parties were named in addition to the WCB, including the assessor Wolfret, his supervisor Mudry along with specific physicians, Doctors Green and King. [26] Furthermore, unlike Shuchuk where there were specific factual allegations made against certain specific WCB officials, Gay in his Statement of Claim only makes nonspecific allegations against unnamed individuals such as found at paragraphs 16aa paragraph and 16ll of his Statement of Claim. [27] Paragraph 16aa of Gay’s Statement of Claim reads as follows: Keeping, considering and relying on false and irrelevant information concerning Mr.

Gay's past involvement in the police investigation of the murderer Clifford Slay, of the child known as Punky Gustavson, where Mr. Gay provided information to the police which assisted in the arrest/conviction of Clifford Slay and relying on information alleging that Gay was a sex offender, when he was not, and using this information to deny or delay entitlement to compensation; [28] With respect to paragraph 16aa of the Statement of Claim, there is no basis upon which any cause of action exists because of its generality and non-specificity to the WCB’s processing of Guy’s claim.

It is impossible to figure out what the murder of a child, Punky Gustavson, has to do with Gay’s WCB claim or the tort of abuse of public office. [29] Paragraph 16ll of Gay’s Statement of Claim reads as follows: WCB paid bonuses to its workers and provided other incentives to them to deny claims like Mr. Gay’s; [30] With respect to subparagraph 16ll, it is also nonspecific on its face because it states that WCB paid these alleged bonuses to his unnamed workers and provided other incentives to them to deny claims “like Mr. Gays”.

Accordingly, there is no specific or direct allegation contained in Gay’s Statement of Claim that his claim was dealt with on that basis. Additionally, the WCB benefits from the concept of “regularity”: see Lethbridge (City of) v Daisley 2000 ABCA 79 at para 23 and s .4 of the Act that says that the WCB cannot actually pay bonuses and other incentives to its workers on any basis.

[31] Furthermore, I find that there is nothing else within Gay’s Statement of Claim that could bring him within the Court of Appeal decision in Shuchuk , which was a fact specific cause of action that was allowed to proceed. [32] For purposes of Rule 3.68(2)(

b) in determining whether the Statement of Claim discloses any reasonable claim, although the Court must accept the allegations of fact as true, there is an exception where the allegations are based on assumptions or speculations, or where they are patently ridiculous or incapable of proof”: Grenon v Canada Revenue Agency , 2017 ABCA 96 at para 6 .

This is especially so when so few facts are plead amidst the many allegations against a large organization, as is the case in Gay’s Statement of Claim. [33] Also, our Court of Appeal stated in Clark v Hunka, 2017 ABCA 346 at para 31 and 32 , Statements of Claim that leave causes of action which omit vital elements, or contain mere bold conclusions for those vital elements with no facts to support them, would be struck out: [31] Nor do we see any error in the chambers judge’s conclusion that the Statement of Claim does not adequately particularize facts that would establish the existence of malice on Hunka’s part.

While a court is generally entitled to rely on the contents of the pleading in assessing whether it establishes a reasonable claim, an exception to that rule exists in the case of allegations of bad faith or malice. It is insufficient to allege conclusions in these instances without describing the evidence that, if proven true, would establish these claims.

As this Court stated in Walton International Group Inc v Rockyview (Municipal District No 44) , 2007 ABCA 21 at para 12 , 32 MPLR (4th) 55, “[a] bare allegation of bad faith, without any pleaded facts in support, and without some particulars, is inadequate: Tottrup ... at para. 11 .” This principle applies with equal force to claims of malice. [32] The need for a description of the evidence to support intentional wrongdoing was echoed in GH v Alcock , 2013 ABCA 24 at para 58 , [2013] AJ No 17 (QL) , where this Court held that a fact is different from a bald allegation, stating: Very briefly, this intentional tort [misfeasance in public office] requires proof of deliberate, unlawful conduct in the exercise of public functions and awareness that the conduct is unlawful and likely to injure the plaintiff....

Moreover, it is not sufficient for a statement of claim to merely make bald allegations that recite the basic elements of the tort in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing by a specific public officer aimed at those who complain of the officer’s conduct. (Underlining added) [34] Although there is no doubt that Gay is very dissatisfied with the WCB’s handling of his case, his Statement of Claim should be struck as there are significant statutory limitations and protection that the WCB enjoys as part of its mandate from the Alberta Legislature.

Furthermore a Statement of Claim is not the appropriate form for disputing decisions because if Gay disagrees with a decision made by the WCB, his remedy is to seek a review of that decision within the legislative scheme: d. First, by requesting a review of a disputed decision from the DRDRB (pursuant to

section 9.4 of the Act ); e. Second, by appealing a decision of the DRDRB to the Appeals Commission (pursuant to

section 13.2 of the Act ); and f. Finally, by filing an Originating Application to judicially review or judicially appeal a disputed decision of the Appeals Commission. [35] The WCB’s application to strike under Rule 3.68 is granted with costs. Firstly, on the basis of Rule 3.68(

a) given the Court’s lack of jurisdiction regarding the WCB’s administrative actions. Secondly, because of the failure of Gay’s Statement of Claim to disclose any reasonable cause of action or factual foundation which would support a reasonable claim regarding his Negligence Claim, his Loss of Reputation Claim, his Unjust Enrichment Claim, and his Misfeasance in a Public Office Claim. Gay’s Statement of Claim is therefore struck in its entirety pursuant to Rule 3.68(

a) and (b). Heard on the 7 th day of July, 2022. Dated at the City of Edmonton, Alberta this 30 th day of September, 2022. Donald Lee J.C.K.B.A. Appearances: Bryanna J. White and Jason J. J. Bodnar

The Workers Compensation Board for the Applicant F. Alberta X. Lavergne Reynolds Mirth Richards & Farmer for the Respondents

SCHEDULE A COURT FILE NUMBER COURT JUDICIAL CENTRE PLAINTIFF DEFENDANT DOCUMENT ADDRESS FOR SERVICE AND CONTACT INFORMATION OF Clerk's stamp: 1903 25449 COURT OF QUEEN'S BENCH OF ALBERTA EDMONTON DALE GAY THE WORKERS' COMPENSATION BOARD (ALBERTA) STATEMENT OF CLAIM Attention: F. Albert X. Lavergne Reynolds Mirth Richards & Fanner LLP PARTY FILING THIS DOCUMENT

3200 Manulife Place 10180 - 101 Street Edmonton, AB T5J 3W8 Telephone: (780) 425-9510 Fax: (780) 429-3044 File No: 107515-001-FAXL NOTICE TO DEFENDANT(

S) You are being sued. You are a defendant. Go to the end of this document to see what you can do and when you must do it. Statement of facts relied on: 1 . The Plaintiff, Dale Gay ("Mr. Gay"), is an individual residing in Edmonton, in the Province of Alberta. 2 . The Defendant, Workers' Compensation Board ("WCB"), is a statutory delegate of the Province of Alberta constituted under the Workers Compensation Act, RSA 2000, c. W- 15 (" Act "). 3 . On or about December 17, 2005, Mr. Gay injured his left knee in the course of his employment as a gas plant operator (the "First Injury" or "Primary Injury").

The Primary Injury included an overextension, arthritic material under the patella, chondromalacia and other difficulties with the left knee. 4 . The First Injury prevented Mr. Gay from continuing in his employment as a gas plant operator and the matter was referred to WCB to detennine and provide appropriate compensation and determinations. 5 . WCB identified the First Injury as a compensable injury on or about February 21, 2006. 6 . On or about May 9, 2006, Mr. Gay underwent arthroscopic surgery on his left knee in relation to the First Injury. 7 . In or about August, 2006, Mr.

Gay's WCB approved knee surgeon recommended Mr. Gay receive NeoVise injections in his left knee to address ongoing symptoms of the First Injury and to aid in his recovery. 8 . In or about August, 2006, Mr. Gay received a NeoVise injection in his left knee at his family physician's office for treatment related to his Primary Injury. 9 . Mr. Gay suffered immediate complications as a result of the NeoVisc injection, including severe pain, spasms in his left leg, numbness, weakness, and a strong sensation of heat throughout his left leg (the "Second Injury" or "Secondary Injury"). 10 .

The Second Injury and symptoms were contemporaneously documented by Mr. Gay's family physician and WCB was notified shortly thereafter by the family physician. 11 . Mr. Gay has continued to suffer from severe intermittent pain, spasms, loss of sleep, disability, and distress as a result of the First and Second Injuries, and Mr. Gay remains unable to work. 12 . WCB has a duty to exercise its statutory authority to evaluate, compensate, and adjudicate employment injury claims reasonably and in good faith. 13 . WCB Policies, including WCB Policy 03-01,

Part 1, Injuries, which mandates that WCB provide appropriate compensation and services from the date of the accident and WCB Policy 03-01,

Part II, Injuries, Application, Second Injury, apply, and WCB failed or refused to follow them. 14 . WCB breached its duty to exercise its statutory authority reasonably and in good faith. 15 . WCB intentionally failed or refused or exercised its authority in such a manner as to cause injury to Mr. Gay, exacerbate his injuries or not provide satisfactory assistance with his injuries resulting in Mr. Gay suffering needlessly, prolonging and exacerbating his injuries and causing him to suffer injury by such conduct. 16 . WCB handled Mr.

Gay's compensation claims for the First Injury and Second Injury improperly and Mr. Gay suffered and was caused harm by WCB by reason of the acts or omissions, negligence, willful and wanton misconduct, abuse of process, improper purpose, bad faith and public or other misfeasance and/or malice, particulars of which include but are not limited to the following: a. Intentionally, unintentionally or otherwise mischaracterizing Mr. Gay's pre​ accident employment of gas plant operator as "medium duty", despite clear information his employment was "heavy duty"; b.

Failing to recognize and accept the type of injuries suffered by Mr. Gay in a timely manner; c. Prematurely discharging Mr. Gay from the Millard Center in June of 2007 on the basis that he was fit to return to his pre- accident level of employment, despite having knowledge that he was unfit to return to work at pre-accident levels or at all;

d. When Mr. Gay was discharged from the Millard Centre in June 2007, his left knee was still problematic and had not fully healed and WCB did not recognize the Secondary Injury; e. Failing to recognize the Secondary Injury when Mr. Gay was disabled from it at the time WCB declared him fit for pre- accident work and discharged him from the Millard Centre in or about June 2007; f. Failing to educate and retrain Mr. Gay and discontinued education/retraining which was scheduled to be provided to him by WCB; g. Ignoring or otherwise refusing to address Mr.

Gay's requests for re-evaluation of the persistent nature of the Second Injury in conjunction with the First Injury and attendant symptoms and the effect it had on Mr. Gay's inability to work, despite being presented with information indicating WCB had erred in discharging Mr. Gay and evaluating his fitness for work; h. Failing or refusing to acknowledge the reality of the Second Injury despite being presented with reliable information indicating severe and ongoing complications as a result of the August 2006 NeoVisc injection, even sending Mr. Gay to attend a psychiatrist concerning the same; i.

Relying on the opinions of WCB therapists and Claims Adjudicators over the opinions of licensed medical doctors, surgeons, and specialists concerning Mr. Gay's fitness for work and/or the extent of his injuries; j. Relying selectively on medical opinions and other information in relation to the Second Injury despite knowing those particular opinions and other information were given in the absence of key information from Mr. Gay's supervising physician concerning the Second Injury, and then refusing to allow or accept medical opinions or other information based on all available information; k.

At all times, WCB Claims was, or ought to have been, aware of its Policies on injuries, including a second injury, but failed or refused to follow or apply them until after Mr. Gay got some direction from the Appeals Commission and the Dispute Resolution and Decision Review Body; l. Failing or refusing to accept the Secondary Injury until after direction from the Appeals Commission's decision of on or about February 24, 2016 wherein WCB Claims was directed to deal with the neuropathic pain in Mr. Gay's left leg; m.

Failing or refusing to accept the compensability of the Second Injury until after December 2017 when this issue was ruled on by the Dispute Resolution and Decision Review Body on or about December 14, 2017 wherein it found there was clear evidence of a secondary injury which occurred during treatment for the Primary Injury which resulted from the NeoVise injections, and despite knowing, or ought to have reasonably known, that Mr. Gay was suffering pain, disability and financial loss as a result; n.

At the end of November 2019, almost 2 years after the Dispute Resolution and Decision Review Body Decision recognizing the Secondary Injury, WCB Claims provided Mr. Gay with a 3% increase in PCI (Permanent Clinical Impairment) related to the Secondary Injury (which was wholly inadequate) and failed to deal with other aspects of compensation related to the Secondary Injury. This increased Mr. Gay's PCI to 7% overall, as it had been 4% previously, and was not an appropriate assessment or determination having regard to all of the circumstances; o. Providing

part information or incomplete information to consultants or professionals to deny compensation to Mr. Gay which he was entitled; p. Failing or refusing to decide on the compensability of neuropathic pain and pain in Mr. Gay's left leg in relation to the Second Injury in a timely manner, even when directed to do so by the Appeals' Commission, and despite knowing that Mr. Gay was suffering pain, disability, and financial loss as a result; q.

Ongoing and consistently failing or refusing to acknowledge and reconcile contradictory decisions and evaluations made by WCB case managers, therapists and others, despite knowing that Mr. Gay was suffering pain, disability, and financial loss as a result; r. Failing to follow acceptable rules, policies, practises and protocols which are consistent with the statutory mandate in the Act ; s. Failing, refusing or otherwise not referring Mr. Gay to a pain clinic and/or a professional to alleviate his pain; t. Failing or refusing to pay Mr.

Gay's costs for exercise and gym fees which are required as a result of the injuries; u. Forcing Mr. Gay to incur considerable and unnecessary legal and medical fees in responding to WCB decisions made unreasonably, negligently and in bad faith; v. Intentionally or otherwise refusing to exercise its statutory authority and delaying its response and resolution of Mr. Gay's claims for the improper purpose of forcing him to incur unnecessary legal fees and abandon his right to compensation from WCB; w. Failing to provide satisfactory compensation benefits, services and entitlements related to Mr. Gay's injuries; x.

Failing to treat Mr. Gay with respect, dignity and valuing him as an injured worker and making Mr. Gay feel unworthy; y. Tarnishing the reputation of Mr. Gay; z. Causing Mr. Gay unnecessary suffering and pain and failing to get him proper assistance to remediate and correct the injuries in a reasonable and timely manner; aa. Keeping, considering and relying on false and irrelevant information concerning Mr. Gay's past involvement in the police

investigation of the murderer Clifford Slay, of the child known as Punky Gustavson, where Mr. Gay provided information to the police which assisted in the arrest/conviction of Clifford Slay and relying on information alleging that Mr. Gay was a sex offender, when he was not, and using this information to deny or delay entitlement to compensation; bb. Failing to use WCB's special investigation powers and special investigation unit to address issues raised by fonner employers to WCB who blacklisted or otherwise did not consider Mr.

Gay for employment and failing to objectively assess/evaluate such information and not giving Mr. Gay the opportunity to respond to it; cc. Misfiling or misplacing a report from Mr. Gay's family physician which supported the Secondary Injury and failing to provide it to Mr. Gay in a timely manner; dd. Failing to accept Mr. Gay's Secondary Injury around the time that it occurred in August 2006 and further refusing to accept it as being compensable until after the Dispute Resolution and Decision Review Body decision in or about December 2017 which recognized his Secondary Injury; ee.

Failing to adequately and satisfactorily respond to and recognize the nature and extent of Mr. Gay's injuries; ff. Failing to move forward in a timely manner after about May 2018 wherein WCB indicated it would be sending Mr. Gay for some assessments, medical examinations and re-evaluating his claims; gg. Pain medication (Lyrica) was not approved by WCB for the pain in Gay's left leg until about October 2018. No pain medication had been approved by WCB before then. It was only on the insistence of Mr. Gay that his family physician was able to prescribe such pain medication in or about October 2018; hh.

Failing to ensure that its workers were adequately trained, competent, prepared, and instructed on how to respond to the nature of Mr. Gay's claims; ii. Failing to ensure that satisfactory policies, procedures, rules, protocols and practices were in place, followed and enforced; jj. jj. WCB abused its authority, acted arbitrarily, interfered with Mr. Gay's rights in a manner which was detrimental to Mr. Gay's entitlement to compensation, benefits and services under the Act or otherwise; kk. WCB failed to act fairly and reasonably regarding Mr.

Gay's claims and entitlement to compensation, benefits and services; ll. WCB paid bonuses to its workers and provided other incentives to them to deny claims like Mr. Gay's; mm. Such further and other particulars as are only known to WCB; nn. Such further and other particulars which may be ascertained by Mr. Gay prior to trial; oo. Such further particulars, other actions and omissions which may be proven at trial. 17 . Since the time of the accident, Mr.

Gay has experienced significant effects and difficulties and has not been able to return to work and his pain and suffering has interfered with the normal course of life. He has lost past, present and future earnings due to the inability to work. 18 . WCB had an obligation to manage and oversee its workers, representatives, contractors, subcontractors, independent contractors, dependent contractors, consultants or others under its control, direction or otherwise, to ensure they were competent, which it failed to do. 19 .

WCB has overall responsibility and obligation to manage and oversee its workers to ensure they were competent and provided services in a timely and competent manner in accordance with the applicable laws, which it failed to do. 20 . There was an obligation on WCB to ensure that the provision of services under the Act or otherwise did not endanger, hinder or interfere with Mr. Gay's livelihood and the compensation, entitlements and services he was entitled to from his injuries. 21 . WCB failed to take reasonable and satisfactory steps to ensure that Mr.

Gay would receive compensation, benefits and services which he was entitled to in a timely manner, that he would be rehabilitated in a timely manner, that his pain and suffering would be satisfactorily alleviated and that he would be properly compensated for his injuries; 22 . WCB had a common law duty of good faith obligations to Mr. Gay which was breached by WCB failing to act reasonably and by not following acceptable standards and practices related to compensating Mr. Gay for his injuries or providing him services and entitlements related to them. 23 .

The acts or omissions of WCB and its workers, representatives, contractors, subcontractors, independent contractors, dependent contractors, consultants or others under its control, direction or otherwise, caused or contributed to serious harm to Mr. Gay. 24 . WCB failed to have satisfactory rules, policies, procedures and practices in place to ensure compensation, entitlements and services were provided to Mr. Gay in a timely manner for his injuries.

Alternatively, if WCB had them in place, it failed to follow them or ensure they were followed by its workers, representatives, contractors, subcontractors, independent contractors, dependent contractors, consultants or others under its control, direction or otherwise. 25 . WCB is liable for not taking satisfactory measures, which resulted in prolonging and contributing to the injuries of Mr. Gay and causing unnecessary pain and suffering to him.

26 . The conduct of WCB caused or contributed to the injuries of Mr. Gay and impeded his recovery. 27 . As a result of the conduct of WCB, Mr. Gay was caused pain and suffering, which he should not have had to endure. 28 . WCB is liable for their actions, inactions, omissions, errors, and lack of judgment or otherwise. 29 . At all material times, WCB conducted itself deliberately and improperly and knew or should have known that Mr. Gay would be injured or would otherwise suffer by its conduct. 30 .

WCB is vicariously or otherwise liable for the actions, inactions, omissions, errors, lack of judgement or otherwise related to its workers, representatives, contractors, subcontractors, independent contractors, dependent contractors, consultants or others under its control, direction or otherwise. 31 . WCB knew or ought to have known that Mr. Gay's Secondary Injury was compensable in August 2006 or within a reasonable time thereafter and failing to accept it would cause him suffering and injury. 32 .

WCB did not meet acceptable standards and practices which are applicable to workers' compensation bodies/authorities. 33 . WCB failed or refused to use its resources, funds and manpower in a manner to ensure that Mr. Gay's injuries were recognized, accepted and that he received satisfactory compensation for them. As a result, WCB was unjustly enrichment. Mr. Gay states that WCB was negligent. A duty of care was owed by WCB to Mr. Gay and it was reasonably foreseeable that Mr. Gay would suffer harm if WCB did not meet that duty. The negligence of WCB caused or contributed to the pain and suffering of Mr. Gay. 34 .

All responsibility and obligations of WCB for Mr. Gay's Secondary Injury are nunc pro tune. Further, decisions made by WCB related to Mr. Gay's Primary Injury are affected by the Secondary Injury and the failure or refusal of WCB to recognize and revisit them for years has caused Mr. Gay further suffering and damages. 35 .

Overall, WCB failed to comply with its statutory obligations, failed to act reasonably, exercised its powers arbitrarily or failed to exercise its powers in a reasonable manner, there was a deliberate or deemed deliberate disregard of WCB of its duties under the Act , the regulations and its policies, WCB abused its statutory obligations or public office, WCB breached its duty of utmost good faith, WCB exercised its authority for an improper purpose, acted with reckless, improper or otherwise indifference, WCB engaged in an abuse of process, abused or failed to follow its procedures, abused or misused its powers, engaged in wilful blindness, ignored its obligation to provide compensation, entitlements and services to the injured worker, or any one or more of them, to the detriment of Mr.

Gay and to deny him compensation he was entitled to under the Act . 36 . Mr. Gay suffers from ongoing pain and there was, and is, a marked life disruption resulting from the Primary Injury and the Secondary Injury. 37. The authority of WCB was not exercised in favour of Mr. Gay for the public good. It ought to have been. 38. There was an abuse of administrative procedures and processes by WCB to the detriment of Mr. Gay. 39. Mr.

Gay states WCB did not want to provide him with the compensation, benefits and services he was entitled to under the Act as that would negatively affect the experience rating/industry rating and increase costs paid from the accident fund. 40. As a result of his injuries, Mr. Gay is disabled and cannot work, he has lost is livelihood and WCB has failed, refused, denied or ignored his claims related to satisfactory compensation, entitlements and services for the injuries. 41. Zealous WCB claims representatives overstepped their authority or engaged in acts or omissions, without due regard to Mr.

Gay, resulting in him being consequently harmed by their actions or omissions. 42. WCB made decisions related to Mr. Gay which breached the rules and it failed to apply statutory obligations to avoid undesirable consequences of having to provide Mr. Gay periodic compensation, entitlements and services on an ongoing basis for his claims. 43. WCB wilfully, deliberately or otherwise engaged in conduct or a pattern of conduct, which was incompatible with the intent, purpose and obligations under the Act related to the recognition of Mr.

Gay's injuries and satisfactory compensation, entitlements and services for them. 44. WCB's handling of Mr. Gay's claims demonstrate reckless disregard for his worker's rights under the Act . 45. In handling Mr. Gay's claims, WCB violated its own code of conduct and fair practices. 46. Mr. Gay's Primary Injury and Secondary Injury arose out of or in the course of employment and were compensable under the accident fund. Mr. Gay's Secondary Injury was inextricably linked to his Primary Injury. 47.

The Act is remedial and is to be interpreted liberally so as to provide compensation, entitlements and services to a worker for a work-related injury and those are to be provided to the worker who suffers a personal injury at work from an accident. A secondary injury which occurs during treatment is compensable and the worker is entitled to compensation, entitlements and services for the secondary injury. 48. There was serious or gross carelessness of WCB in handling Mr. Gay's claims, or the conduct of WCB was markedly different from what is reasonably expected. 49. The harm WCB inflicted on Mr.

Gay was reasonably foreseeable. The conduct of WCB was irrational and lacked good faith.

50. The Plaintiff states that given the actions, inaction, acquiescence, representations or otherwise by WCB, expressed or implied, WCB has waived its rights to or is estopped from taking the position that the Plaintiff is not entitled to the satisfactory compensation, entitlements and services for his injuries from the time when they occurred. 51. The conduct of the WCB was egregious and cannot be condoned or tolerated by the Plaintiff. 52. As a result of the foregoing, Mr.

Gay states that the conduct of WCB is so egregious, wanton and reckless that he is entitled to aggravated damages and/or punitive/exemplary damages. 53. Mr. Gay relies on the applicable provisions of the Act , including ss. 24 and 56 , the regulations thereunder and the common law. The duties of WCB under such laws were not met by WCB. 54. Mr. Gay claims interest as per the Judgment Interest Act on any amounts due and owing at the prescribed rate in effect from time to time. 1. As a result of WCB's improper conduct, Mr.

Gay has suffered the following damages or such greater or lesser amounts proven at trial: Financial loss in the amount of $1,500,000 in damages, legal fees, medical fees, loss of income, pain, suffering, disability and injury to his personal dignity and reputation; 2. Punitive/exemplary or aggravated damages in the amount of $500,000 each; 3. Such further and other damages as may be proven at trial. 55. The Plaintiff proposes that the trial of this action be held at the Law Courts, in the City of Edmonton, in the Province of Alberta.

In the Plaintiffs opinion, this action will not likely take more than twenty-five (25) days to try. Remedy sought: 56. General and special damages in the amount of $1,500,000, or such greater or lesser amount proven at trial; 57. Punitive/exemplary damages in the amount of $500,000 or such greater or lesser amount proven at trial; 58. Aggravated damages in the amount of $500,000 or such greater or lesser amount proven at trial; 59. Interest on all sums awarded; 60. Such further and other damages as may be proven at trial; 61.

Costs of this action on a solicitor-own-client basis or alternatively on a party-party basis, or as may otherwise be awarded; and 62. Such further and other remedy or relief this _Honourable Court deems just. NOTICE TO THE DEFENDANT(

S) You only have a short time to do something to defend yourself against this claim: 20 days if you are served in Alberta I month if you are served outside Alberta but in Canada 2 months if you are served outside Canada. You can respond by filing a statement of defence or a demand for notice in the office of the clerk of the Court of Queen's Bench at Edmonton, Alberta, AND serving your statement of defence or a demand for notice on the plaintiff’s address for service.

WARNING If you do not file and serve a statement of defence or a demand for notice within your time period, you risk losing the lawsuit automatically. If you do not file, or do not serve, or are late in doing either of these things, a court may give a judgment to the plaintiff against you.