Court Permits Defence Amendment in “Worker v. Worker” Claim

In Eugenio v. Dhillon, the Plaintiff was injured in a motor vehicle collision, and subsequently brought an ICBC claim for damages for pain and suffering, as well as various other forms of damages. After pleadings had closed, Examinations for Discovery were conducted, and a trial date was set. ICBC’S lawyer then sought an order permitting the amendment of the Statement of Defence to plead the “worker worker” bar. Counsel for the Plaintiff argued that the Plaintiff would be prejudiced by such an amendment, as she would not be able to claim Workers’ Compensation benefits due to the expiry of the applicable limitation period. The Court allowed the amendment, on the condition that the insurance company pay the amount of benefits that the Plaintiff would have received, if the Workers’ Compensation Board were to not extend the limitation period for such purposes.

 

[7]               Pursuant to the reasoning in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I am bound to follow the reasoning of Mr. Justice Owen-Flood in the case of Brzozowski v. Greyhound Canada Trans. Corp., [1998] B.C.J. No. 2400.  In that case, two plaintiffs were injured on the 11th of November, 1996, while riding as passengers on a bus owned and operated by the defendants.  Proceedings were commenced in which the defendant, Greyhound, admitted negligence on the part of its driver.

[8]               In November 1997 at the plaintiffs’ examination for discovery, counsel for Greyhound raised for the first time, a statutory Workers Compensation Act (the “Act”) defence pursuant to s.10 of the Act. The plaintiff then sought a ruling from the Workers’ Compensation Board for benefits pursuant to the Act. The adjudicator who heard the plaintiffs’ application disallowed their claims as they were brought outside the one-year time limit under s.55 of the Act.  Greyhound then brought a motion to amend its statement of defence to raise the statutory defence pursuant to s.10 of the Act and were permitted to do so on condition that they undertook to pay the equivalent of any benefits the plaintiff would have received save for its delay in applying to the Board for the s.10 ruling.

 

[9]               Mr. Justice Goldie made a similar ruling on an application for leave to appeal in the case of Parmar v. Virk (FAS), 9 B.C.L.R. (3d) 394, [1995] B.C.J. No. 1604.  A similar term was imposed in similar circumstances by Madam Justice Stromberg-Stein in the case of Zacharias v. Lo, [1999] B.C.J. No. 881from a hearing March 8, 1999.  I consider that I am obliged pursuant to these authorities to allow the amendment sought.  I do so on the same conditions that were imposed by Madam Justice Stromberg-Stein and Mr. Justice Owen-Flood in the Zacharias and Brzozowski actions.  That is, the amendment will be allowed on the undertaking of the defendants’ insurer that:

… if the Workers Compensation Board determines that it has jurisdiction, but refuses to extend the limitation period to allow the plaintiff benefits, the insurance company will pay the equivalent of any benefits the plaintiff would have received save for the delay in making the application to the Board.

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