By way of introduction my name is Thomas Brown and I’m both an injured worker, as well as a worker advocate. For years I believed, and was led to believe, that civil suits against the Workers’ Compensation Board (WCB) were not permitted. This, as it turns out, is an urban myth.

In 2001 Alberta injured worker Thomas Shuchuk sued a number of WCB employees for “Abuse of Public Office”. His suit, which WCB appealed all the way to the Supreme Court, and lost, undeniably rocked the foundation of compensation boards across Canada. Despite its significance however, this legal option remains largely unknown to those mistreated by WCB. The purpose of this website is to change this.  

Here in Saskatchewan, the Shuchuk suit prompted the Board to recommend legislative changes to better protect its employees. The recommendation was formally submitted to the “Workers’ Compensation Act Committee of Review”, but was ultimately rejected, and appropriately so. As the Committee’s response nicely summarizes the Shuchuk case, and effectively explains the basis for this type of civil suit, for these reasons I’ve included it below.   

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The following excerpt is from the Saskatchewan Workers’ Compensation Act Committee of Review 2006 Report:

8.03 Statutory Immunity and Intentional Abuse of Public Office

The power and authority of a case manager, vocational rehabilitation specialists or other Board employee in the injured worker-Board relationship permeates all interactions between individual injured workers and the Board. The Committee heard allegations of what was characterized as bad faith exercise of the Board’s authority to suspend or terminate benefits or otherwise punish an injured worker, and therefore his or her family, because the worker did not, in the Board employee’s opinion, cooperate to regain health or employment. The decision may have been a response to the worker’s words or behaviour in his or her relationship with the Board employee.

Similarly, as in all human relations, the behaviour of an abusive or unrelentingly pestering worker or employer can pressure the Board to provide faster or more service than the co-operative, patient individual. Some persons experienced with dealing with the Board may have more detailed knowledge about the inner workings of the program than new case managers or vocational rehabilitation specialists.

The decisions to punish or reward by action or inaction lie with the Board in the power imbalance between the Board and individual workers and employers. Some argue against any immunity being given to the members of the Board and its employees for acts done or not done in the performance of their duties.

Section 26 of the Act [Saskatchewan] states: “The members shall enjoy the same immunity and privileges as those conferred upon judges of the Court of Queen’s Bench for any act done or omitted in the execution of their duties.”

Despite legislated immunity, the courts have held that a citizen who suffers damages as a result of an intentional abuse of public power aimed at the citizen has the right to an award of damages in a civil action in tort.

In Alberta, not Saskatchewan, a worker was assessed as having a temporary total disability. Some time later, a claims adjudicator wanted to have him reassessed by a different doctor. Despite advice the adjudicator received from a Board psychological consultant that having a different doctor assess the worker would subject him to “excessive mental stress, which may in turn jeopardize his or others’ safety”, the adjudicator pressed to have the reassessment done by the doctor selected by the adjudicator. The adjudicator also retained a private investigation firm to conduct surveillance on the worker. After receiving the surveillance report, the adjudicator obtained advice from a Board medical advisor with no psychological or psychiatric specialty.

The worker sued the adjudicator and his supervisor, the Board and two doctors. The worker claimed:

The conduct of the Defendants was vindictive, malicious, biased, made without any medical indication or basis, deliberately disregarded the Plaintiff’s rights and the express opinions of his treating physician and psychologists that the conduct was medically contraindicated, was a breach of the Defendants’ duty of good faith, and constituted an assault upon the Plaintiff as well as a defamation upon his character, all of which resulted in the worsening of his medical and psychological health.

The adjudicator claimed immunity similar to that of a superior court judge.

The Court of Queen’s Bench determined the adjudicator’s immunity was not absolute under the Alberta statute and the evidence could indicate that the adjudicator had a single-minded purpose to have the doctor he selected assess the worker and find some basis to justify doing so regardless of the worker’s rights and health. That evidence would suggest abuse of power. There was evidence to suggest the adjudicator ordered the worker to submit to testing by the doctor he selected upon threat of having his benefits cut off and the result of the assessment damaged the worker’s mental health. The Alberta Workers’ Compensation Board tried unsuccessfully up to the Supreme Court of Canada to have the suit summarily dismissed.

In the light of this Alberta case, the Board proposes section 26 be amended to extend immunity to all employees of the Board for their actions, except if they are done in bad faith, as in the Manitoba Act.

The Board did not address whether this is intended to give immunity from tortious abuse of public officer or lesser conduct. The elements of the common law tort of abuse of public office are: