2007 BCSC 1945 Manz v. Workers' Compensation Appeal Tribunal and Sundher

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	*Manz v. Workers' Compensation Appeal Tribunal and Sundher*,
	2007 BCSC 1945

Date: 20071207
Docket: L052207
Registry: Vancouver

Between:

William Manz

Petitioner

And:

Worker’s Compensation Appeal Tribunal
and Gurdave Singh Sundher

Respondents

Before: The Honourable Mr. Justice Groves

Oral Reasons for Judgment

In Chambers
December 7, 2007

Counsel for Petitioner	V. Ishkanian
Counsel for WCAT	T. Martiniuk
Counsel for Sundher	J. Martin
Place of Trial/Hearing:	Vancouver, B.C.

[1] THE COURT: This petition for judicial review was brought before the court and argued on the 5th of November 2007. Before beginning my reasons, I wish to thank all counsel for their effective argument on behalf of their respective clients and for their patience in dealing with my questions and comments during the course of their argument. As a result of the careful and capable arguments presented by all parties, this has been a difficult decision.

[2] The petitioner, Mr. William Manz, requests a judicial review of a decision or decisions of the Worker's Compensation Appeal Tribunal, who will be referred in these reasons as "WCAT." The original decision is dated the 15th of July 2005, and there is a reconsideration decision, a panel review of the original decision, which was released on the 27th of March 2006, which reached the same conclusion as the original decision.

[3] The petitioner, Mr. Manz, and the respondent Gurdave Singh Sundher, who I will refer to as "Sundher," were involved in a motor vehicle accident on the 27th of September 2000 in or around is Swartz Bay Terminal, which is in the municipality of Sidney, British Columbia. The Swartz Bay Terminal is, of course, a ferry terminal operated by then the B.C. Ferry Corporation, now an entity known as the B.C. Ferry Services Inc.

[4] At the time of the accident, the petitioner was employed by the then B.C. Ferry Corporation as a stock person. He worked on an on-call basis. He had finished his shift at the ferry terminal and was leaving work on his motorcycle. He drove into a large open area, a publicly accessible area, essentially a public highway, though the roadway in question where the accident occurred was still on property owned by B.C. Ferry Corporation.

[5] Shortly after entering on to the public part of the highway, he collided with a dump truck driven by the respond Sundher. The dump truck was making a wide left turn across the lane in which the petitioner was riding in order to turn into an access area, what has been referred before me, and to in the reasons, as a “gap”, an opening in a concrete no-post barrier which divides the highway at the point in question. This access or gap was to the left side of the road. Both the petitioner, Manz, and the respondent Sundher were driving in a generally south direction on an essentially one-way road leaving the ferry terminal.

[6] I would note that there was no evidence now before me, or before the WCAT, that the gap in the cement no-post barrier was not a legitimate traffic control measure, ill constructed, or engineered in a difficult way.

[7] The petitioner was injured in the accident and brought action against the respondent Sundher for damages arising out of the alleged negligence of the respondent Sundher. Pursuant to s. 257 of the Worker's Compensation Act, Sundher requested that the Worker's Compensation Appeal Tribunal determine the status of the petitioner and the respondent and certify the status to the court.

[8] On July 15th, 2005, as noted earlier, WCAT issued its decision, which is number 205-03693, which found that the petitioner was a worker at all times and that his injuries arose out of and in the course of employment and that the respondent Sundher was a worker at all times and that his action or conduct which causes a breach of duty of care alleged in the legal action arose out of and in the course of his employment. As a result, WCAT issued a s. 257 certificate certifying the same on that date.

[9] As noted, Manz subsequently applied to the Worker's Compensation Appeal Tribunal for reconsideration of the original decision. The grounds upon which Manz requested reconsideration of the original decision are very similar to the grounds raised by this petition in this proceeding.

[10] On the 27th of March 2006, as a result of the application, WCAT reconsideration panel issued decision number 206-01402. In its decision, the reconsideration panel determined that the vice chair in the original decision did not make an error of law going to jurisdiction. Nor did the vice chair hear the matter in a procedurally unfair manner.

[11] The original decision requires some analysis and makes some important and not disputed findings of fact. First off the accident occurred on the 27th of September 2000. The plaintiff was employed by B.C. Ferry Corporation at that time as a stock person. The original decision raises the issue in the body of the decision as to the fundamental question it must address, and that issue is, did the injuries which Mr. Manz suffered on that date arise out of the course of his employment?

[12] Other findings of fact of note are that the plaintiff's shift on that day, 27th of September 2000, was from 8:00 a.m. to 3:30 p.m. The accident occurred at 3:35. The petitioner had ceased traditional employment in the sense of his requirement to work certain hours and was in the process of returning likely to his home, or at least away from his employer's site. The accident occurred at the Swartz Bay Terminal, again on an exit in an area open to the public, a road which is regularly travelled by departing ferry traffic.

[13] The other significant findings of fact relate to the no-post cement barrier which divides the road. There is a gap in the no-post barrier which the original decision determined allowed traffic to exit the ferry at Swartz Bay, to turn and go back through the toll both for additional ferry travel such as a circumstance where a person would take a ferry to Vancouver Island and then return through the tollbooth at the ferry terminal at Swartz Bay to take a ferry to the Gulf Islands.

[14] Additionally the break in the cement no-post barrier, or "gap" as it is described, allows traffic that potentially approaches the tollbooth from Victoria or Sidney to make a U-turn and return on the one-way highway back south to either Victoria or Sidney as the case may be.

[15] At the time the plaintiff was leaving the ferry terminal, he believed legitimately that the dump truck that he saw as he was leaving the terminal was also travelling southbound or in the same direction as he was. However, the dump truck turned, it is conceded, and crossed in front of Mr. Manz as he began his drive south. The purpose of the manoeuvre conducted by Mr. Sundher, the truck driver, was to enter into the gap for reasons which may involve a U-turn or may involve other reasons. The plaintiff was unable to avoid running into the side of the dump truck, as the dump truck operated by Sundher essentially turned immediately in front of him.

[16] The defendant Sundher explained in evidence, or so it would appear it was concluded by the original vice chair hearing the matter, that he had to make a wider turn than a smaller vehicle in order to access the gap. As such, he chose to turn through two lanes of traffic into the opening in the cement barrier. I will come back to these findings at a later point.

[17] In order for the WCAT to take jurisdiction over this matter, simply put, there must be a finding that the injuries the plaintiff suffered arose out of or in the course of his employment. Here Mr. Manz was not working in the traditional sense per se. He was off shift. He was exiting his employer's property, though still on it. In order to seize jurisdiction, as I understand it, WCAT must rely on its policies in effect at the time of the subject accident. In the original decision, the 15th of July 2005, the vice chair considered a number of policies. Specifically in his reasons he notes a reference to policy number 14.00, a policy entitled "Arising Out of and In the Course of Employment"; policy 17A.10, "Commencement of Employment Relationship"; policy number 18.10, "Entering to Employer's Premises"; policy 18.11, "The Captive Road Doctrine"; policy 18.12, "Special Hazards of Access Routes"; and policy 19.20, "Parking Lots."

[18] Of note in the original reasons, policy number 14.00 is of particular note, and in these circumstances, worth reading as part of these reasons. That policy reads as follows:

Before a worker becomes entitled to compensation for injury under the Act, the injury must arise out of and in the course of employment.

Confusion often occurs between the term "work" and the term "employment." Whereas the statutory requirement is that the injury arise out of and in the course of employment, it is often urged that a claim should be disallowed because the injury is not work related or did not occur in the course of productive activity. There are, however, activities within the employment relationship which would not normally be considered as work or in any way productive. For example, there is the worker's drawing of pay. An injury in the course of such activity is compensable in the same way as an injury in the course of productive work.

Lack of control of a situation by the employer is not a reason for barring a claim otherwise acceptable. Control by an employer is an indicator that a situation is covered under the Act at a particular time, but if that control does not exist there may be other factors which demonstrate an employment connection.

No single criterion can be regarded as conclusive for deciding whether an injury
should be classified as one arising out of and in the course of employment. Various indicators can be and are commonly used for guidance. These include:

(A) whether the injury occurred on the premises of the employer;

(B) whether it occurred in the process of doing something for the benefit of the employer;

(D) whether it occurred in the course of using equipment or materials supplied by the employer;

(E) whether it occurred in the course of receiving payment or other consideration from the employer;

(F) whether the risk to which the employee was exposed was the same as the risk to which the employee is exposed in the normal course of production;

(G) whether the injury occurred during a time period for which the employee was being paid;

(H) whether the injury was caused by some activity of the employer or of a fellow employee;

(I) whether the injury occurred while the worker was performing activities that were part of the regular job duties; and

(J) whether the injury occurred while the worker was being supervised by the employer.

This list is by no means exhaustive. All of these factors can be considered in making a judgement, but no one of them can be used as an exclusive test.

[19] That is the end of policy 14.00.

[20] It is of note that counsel for the petitioner submits and it is not disputed that really the only applicable or possible basis for jurisdiction is the noted criteria 14.00(A), whether the injuries occurred on the premises of the employer, with of course the caveat that the list of issues set out in 14.00 are not designed to be exhausted.

[21] In making the determination that the petitioner in this judicial review proceeding was a "worker" within the meaning of part 1 of the Worker's Compensation Act, the vice chair noted in his reasons the following starting at page 10:

The question as to whether the plaintiff's injuries arose out of or in the course of his employment is complex. A forceful argument that the plaintiff's injuries were not related flow from the fact the plaintiff had completed work for the day, was leaving the employer's premises on his person vehicle and was injured in a motor vehicle accident due to the normal hazards of highway travel.

[22] I would add here that it is not specifically noted, but in my view, an additional important fact is that the alleged employee, Mr. Manz, was in fact on the public side of the highway and not on a captive road. To continue from the reasons again at page 10:

A significant feature is that the accident occurred on lands owned by the plaintiff's employer, i.e., on the employer's premises. However, the fact of legal ownership is determinative. As the accident occurred in a publicly accessible area outside of the tollbooth, it is arguable that the accident was simply one which involved the normal hazards of using a motor vehicle. Similarly if a B.C. Ferry worker happened to be struck by a vehicle while attempting to direct traffic as part of their work duties beyond the boundaries of the land owned by the ferry services, the fact that the land was not owned by the employer would not be a reason for denying the worker's claim for Worker's Compensation benefits. For the reasons set below, however, I consider that the fact that the accident occurred on the employer's premises to be a strong factor linking the plaintiff's accident to his employment. I consider that there were hazards particular to the location of the plaintiff's accidents which were hazards on the employer's premises. This concerns the increased or difficult risks which were specific to the employer's operation, rather than suggesting any negligence on the part of the employer. A finding of negligence is not necessary to determine that a worker's injury is compensable under the Act as being one arising out of and in the course of the worker's employment. A key feature of operating a ferry terminal involves regulating and controlling the flow of large numbers of vehicles. A second key factor which was central to the occurrence of the motor vehicle accident was the opening in the concrete barrier to permit U-turns. It may well be the case that this opening was designed to permit this manoeuvre to be performed in a safe manner. It is evident, however, that there was some risk attached to having such an opening and that was related to an aspect of the ferry terminal's operation to permit vehicles to change directions at that point. Additionally both in accessing and exiting the ferry terminal, there were several lanes. The need for a large vehicle to make a wide turn across multiple lanes in order to utilize the U-turn created a hazards specific to the employer's premises. I note as well that the presence of the dump truck on the employer's premises related to paving work which was being performed on the terminal on the date of the accident. For these various reasons, I consider the plaintiff's accidents were related to a hazards on the employer's premises.

[23] All findings of fact of any tribunal or court must be based on evidence. The petitioner argues there is no basis for the vice chair to make the conclusions that he did. Conclusions such as "some risk attached to having an opening," referring to the U-turn, and "the need for a large vehicle to make a wide turn across multiple lanes in order to utilize the U-turn", it is suggested are not based on any evidence.

[24] The evidence in the record which is provided and counsel have agreed was the evidence before the vice chair consists of, on these points, two bits of evidence, those being photographs and the discovery transcript of Mr. Sundher. The photographs appear in at least two places in the record, but most notably on pages 0070 to 0075. Of particular note is a photograph that relates to the gap in the cement no-post barrier found on page 0071 and it is numbered number 3; as well as a photograph on page 0072 at the bottom, which is not numbered.

[25] It is clear to me from reviewing the record that the factual conclusions of the vice chair, which must be based on the evidence, are apparently based on the discovery transcript of Sundher and the photographs, and it is on these two bits of evidence that he found that there was a hazard. There was no engineering evidence. There was no road design evidence. There was no traffic analyst's evidence, and there was no evidence of expert drivers and/or truckers in regards to the conclusions that were made.

[26] The standard of review is an important consideration in any application for judicial review. There was no dispute about this in the argument before me. I have considering the authorities provided by the various parties and the submissions of counsel, and there is a consensus in the authorities and there is the agreement of all counsel that the standard of review or the test as to whether or not the court has jurisdiction to review the decision of the vice chair and the tribunal is a question or a determination of whether or not the determinations were patently unreasonable.

[27] As Maczko J. noted in the case of Cowburn v. Worker's Compensation Board of British Columbia [2006] B.C.S.C. 722, "patently unreasonable" is a high standard and it is a standard in which it must be shown that the decision is incapable of being supported by the Act. A reasonable ratio of that case can be effectively summarized by saying that the statute establishing the Worker's Compensation Appeal Tribunal says that in the WCAT must apply the policies of the board in rendering decisions. The policies of the board cannot be interpreted in a patently unreasonable manner.

[28] I would add that the authorities seem consistent that a decision is patently unreasonable is there is no evidence to support it. The court may not have jurisdiction to interfere if there is some evidence to support a decision, even if the court in analysing that same evidence would come to a different conclusion. Simply put, the issue is did WCAT vice chair make a patently unreasonable decision when he concluded that the gap in the cement no-post barrier was a hazard created by the employer such that the negative result created by the hazard, the accident, brought the petitioner within the ambit of being an employee injured in the course of his employment?

[29] I have concluded that the vice chair did make a patently unreasonable decision. I start from an analysis of the word "hazard." "Hazard" has been defined in various dictionaries as follows: in Black's Law Dictionary, it states "hazard" is:

A risk or peril assumed or involved whether in connection with contract relations, personal relations or golf or gaming, a danger or risk lurking in a situation which by chance or fortuity develops into an active agency of harm. It is an exposure to the chance of loss or injury.

[30] The Oxford Concise Dictionary, Clarendon Press 8th edition states:

"Hazard" is a danger or risk, a source of this, or a chance.

[31] In Webster's College Dictionary, Random House, states that:

A "hazard" is something causing danger, peril, risk or difficulty.

[32] With those definitions in mind, I now turn to what is the evidentiary basis of the vice chair concluding that a hazard existed in the opening in the cement no-post barrier? Again clearly the evidence is the photos and the examination for discovery evidence of Mr. Sundher.

[33] In my view, any analysis of the photos is incapable of leading to the conclusion that there is a risk or a hazard. The photos noted, particularly page 0071, number 3, and on page 0072, the bottom photo, and the photos collectively, show a large gap created in the cement no-post barrier, obviously to facilitate U-turns. On page 0071, photo number 3 shows a truck, the truck in question, and a large distance between where the truck has stopped and the beginning of the cement no-post barrier to the right side of the driver while operating his vehicle.

[34] On Page 0072, the bottom photo again shows the truck and what appears to be at least a full car's distance between where the truck has stopped, as the truck had stopped in the photo on page 0071, to the truck driver's left and again the commencement of the cement no-post barrier. Collectively these photos show a large exit space, clearly an exit space large enough for at least two and likely three lanes of traffic. They show a large exit space between the cement no-post barriers similar to that of a road exiting from a one-way street to the left. On page 0070, photo number 2, one sees a traffic control device, a stop sign designed to require the users of the gap to stop before entering it.

[35] In my view, these photos clearly show that the break in the cement no-post barrier, the gap as it refers to, is no different than a left side turn from a one-way highway to the left. It is simply a regular traffic control device, which in and of itself creates no hazard at all. I should add that the photos are, in my view, incapable in and of themselves of lending to a determination that there is a hazard.

[36] As for the discovery evidence, questions 209 to 221 of Mr. Sundher's discovery are part of the record. I will not read them in. There is clearly from those questions and answers some language barrier, but that being acknowledged, nothing in these questions and answers indicate that a driver approaching the gap in the cement no-post barriers was approaching a hazard, nor is there any evidence, photo or discovery evidence of Mr. Sundher, to suggest that work-related requirements forced Sundher to operate the vehicle in the manner he did, this going potentially to justify a determination that there was an employer-created hazard.

[37] Mr. Sundher clearly approached a large opening, at least two to three car lanes wide, and that is clear from the photographs. Mr. Sundher chose, for whatever reason, to turn the way he did. He was not required to do so. It was his choice. The alleged hazard did not make him do what he did.

[38] The break in the cement no-post barrier could potentially be a hazard if one was required to approach it in an unsafe manner due to the employer-created device or road or access, but that is not the case here. Simply put, Mr. Sundher chose to perform what is seemingly an illegal turn, from where he chose to turn, without the simple manoeuvre of checking over his left shoulder to ensure safety. That is not in any way related to the exit or u-turn device created by the employer.

[39] There is no evidence of, to use the words from the decision, of "some risk attached to having such an opening." There is simply no evidence. Perhaps one could conclude risk if it was obvious or a requirement to take this exit, but there is no evidence of that. Additionally clearly an employer can create a hazard. An example, an employer can release water on to the road in the middle of winter and create ice, but there is no evidence that a marked legitimate turn is a risk. There is no evidence it is a hazard. It is clearly an exit, which owners or authorities, including municipalities, create in a very similar way on a routine and regular basis.

[40] There is no evidence of the need for Mr. Sundher's vehicle or any vehicle to make the wide turn which Mr. Sundher chose to do in order to utilize the gap created in the cement no-post barriers. It has to be established on the evidence, in my view, for there to be an employer-created hazard that the actions of Mr. Sundher were somehow necessary, that he was compelled to take the action he did. There is no evidence of that and no evidence on which that could be concluded. The reasons of the Vice Chair, to use Mr. Ishkanian’s language, suggest that the gap made him do it, and that is simply not evidentially based.

[41] To conclude that this left hand turn option created by a gap in the cement no-post barriers was a hazard would be to conclude that any left hand turn from a one-way street, as this one was, would be a hazard, and that is simply not the case. This is a legitimate road exit. It is, in my view, patently unreasonable to conclude that a legitimate left hand turn option properly marked is a hazard.

[42] To conclude there is a hazard, there must be some evidence that the employer created it and it was necessary for Sundher to access it as he did. You clearly cannot look at the photos and conclude that. The photos are capable of many interpretations. This is, in my view, a legitimate traffic control device and Sundher's evidence and what it may be, and there is some real issue on that, does not establish anything which could be the basis to conclude that a hazard was created by the employer.

[43] As such, the petitioner has made out his claim for judicial review and the petition is granted on the amended terms of relief sought in the petition.

(Discussion)

[44] THE COURT: All right. Thank you. On the issue of costs, there will be Scale B costs to the petitioner payable by the respondent Gurdave Singh Sundher. No costs for or against the Worker's Compensation Appeal Tribunal. Thank you.

“The Honourable Mr. Justice Groves”