Executive Summary: Key Legal and Evidentiary Issues

• The court denied the defendant's application to transfer the proceeding from the Vancouver Registry to Victoria.
   
• Defendant's request to strike portions of the plaintiff's notice of civil claim was also dismissed.
   
• Workers Compensation Act provisions governing the Board's exclusive jurisdiction over employment-related injury claims were central to the strike application.
   
• Plaintiff's presumptive right to select the venue of trial outweighed the defendant's convenience-based arguments.
   
• Safety concerns raised by the plaintiff about returning to Victoria factored into the venue decision.
   
• As the successful party, the plaintiff was awarded costs of the application, in the cause.
   

Facts of the case

Alan Schmegelsky brought a wrongful dismissal claim against Scansa Construction Ltd. [source inconsistency: para. 1 of the judgment names the defendant "Scansa Construction Inc.," while the style of cause and all other references use "Scansa Construction Ltd."], alleging that his employment was terminated on or about August 13, 2019. The plaintiff says that in early July 2019 his son went missing, and on or about July 22, 2019 media reports identified the son as a suspect in multiple murders and the target of a manhunt. On July 23, 2019, the plaintiff sought leave from work due to the distress and psychological unease this caused him, and his immediate supervisor allegedly approved the request and assured him the defendant would "find other work for him." In early August 2019, while still absent, the plaintiff learned his son had died. On or about August 13, 2019, he contacted the defendant to express a desire to resume employment and was advised his employment had been terminated, without notice or pay in lieu of notice. He commenced this proceeding on March 10, 2020. The defendant denies all liability, denies that the plaintiff was dismissed, and contends the plaintiff repudiated his employment contract by failing to return to work and by filing a notice of civil claim. In the application before Associate Judge Robinson, the defendant sought an order transferring the proceeding to the Victoria Registry (or alternatively for trial purposes only), an order striking portions of the notice of civil claim as outside the court's jurisdiction, and costs. The plaintiff opposed all three orders.

Policy and legislative provisions at issue

The venue application engaged Supreme Court Civil Rule 23-1(13), which allows the court to order a proceeding transferred to another registry "for any or all purposes." The strike application engaged Rule 9-5(1)(a) and (b), permitting the court to strike a pleading that "discloses no reasonable claim or defence" or that is "unnecessary, scandalous, frivolous or vexatious." The defendant relied on section 127 of the Workers Compensation Act, R.S.B.C. 2019, c. 1, which bars civil actions for personal injury, disablement, or death arising out of and in the course of employment, on the basis that this provision placed portions of the plaintiff's pleaded psychological-injury and dignity-based claims outside the court's jurisdiction. The court also considered section 122 of the Act, which gives the Workers' Compensation Board exclusive jurisdiction to determine whether a worker's injury arose out of or in the course of employment, and section 311, which sets out the process by which a court or party may ask the Workers' Compensation Appeal Tribunal to certify such a determination to the court.

Reasoning and analysis

On the venue application, the court applied the test from Armstrong v. City of Revelstoke (1927), 38 B.C.R. 253, and Dungate v. Dungate, 2015 BCSC 2225, under which a transfer requires a preponderance of convenience or the interests of justice, with an onerous onus on the party seeking the transfer per K.U.B. v. L.L.M., 2013 BCSC 39. The defendant pointed to anticipated disbursements of more than $3,000 for a four-day Vancouver trial and additional travel expenses for its Victoria-based witnesses and counsel. The court found these concerns did not justify a transfer: some costs could be avoided through video-conference testimony, a transfer would simply shift travel and accommodation costs onto the plaintiff (a Vancouver resident), and a notice of trial was already in place for a January 4, 2027 Vancouver trial date that a transfer would likely delay into 2027 or 2028. The court also accepted, without ruling on whether the fear was objectively justified, that the plaintiff held genuine safety concerns about returning to Victoria given the notoriety attached to his son's case. Balancing these factors, the court concluded that neither the interests of justice nor the preponderance of convenience favoured a transfer, and that the defendant had not discharged its onus of displacing the plaintiff's presumptive right to control the litigation. On the strike application, the defendant argued that portions of the pleadings concerning psychological injury and undermined dignity fell within the Board's exclusive jurisdiction under section 127, relying on Chestacow v. Mount St. Mary Hospital of Marie Esther Society, 2024 BCSC 783. The court distinguished Chestacow on the basis that section 122 was not brought to that court's attention, and held that section 122 gives the Board — not the court — exclusive jurisdiction to determine whether an injury arose out of or in the course of employment. Accepting the defendant's position would require the court itself to make that determination, usurping the Board's authority. The court further noted that section 311 sets out the proper mechanism for a court or party to seek a certified determination from the Workers' Compensation Appeal Tribunal, and that a strike application under Rule 9-5 is not an alternative to that process. Because no such determination had been made, the court held it could not say the plaintiff's claim was plainly and obviously bound to fail or unknown at law.

Ruling and overall outcome

The defendant's application was dismissed in its entirety: the request to transfer the proceeding to the Victoria Registry was refused, and the request to strike portions of the plaintiff's notice of civil claim was also refused as premature pending any Workers' Compensation Appeal Tribunal determination. The plaintiff, Alan Schmegelsky, was the successful party on the application, and the court ordered that he receive his costs of the application, in the cause. No other monetary amount was ordered, granted, or awarded in the reasons.