Court Allows Defence To Amend Pleading In Section 10 Of Workers Compensation Act Case

In Lin and R & J Honeyland Inc. v. Tham, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, and various other forms of damages. ICBC’S lawyer filed a Statement of Defence (as it was known at that time), in which liability was disputed. Later in the litigation proceedings, ICBC’S lawyer brought an application for leave to amend the Statement of Defence to plead that both the Plaintiff and Defendant were workers in the course of their employment within the meaning of Section 10 of the Workers Compensation Act and, as such, the Plaintiff‘s ICBC claim was statute barred. Counsel for the Plaintiff would not consent to the amendment, taking the position that his client would be prejudiced if the application were to be granted, as the Plaintiff did not apply for compensation within one year of the date of the accident, as is required under the Workers Compensation Act. The Court ruled that it was conceivable that the Defendant could be deemed to be a worker within the course of his employment, and consequently allowed the application for leave to amend the Statement of Defence.

 

[14]           In the present case, the plaintiff agrees that he was an employer or worker at the time of the accident, but submits that when the WCAT makes its determination, it will find that the defendant was not a worker.  Therefore, he says the only effect of the present application will be an unnecessary delay of the trial.

[15]           The defendant has filed an affidavit sworn September 28, 2007 in which he deposes that at the time of the accident, he was employed by Dolphin Delivery Ltd. and was working and engaged in the delivery of newspapers.

[16]           In the circumstances, it is at least conceivable that the defendant may be found to have been a worker in the course of his employment at the time of the accident.  That being the case, it is proper for the defendant to seek a determination from the WCAT, and leave is granted to amend the statement of defence accordingly.

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