A recent ruling from the B.C. Court of Appeal confirmed that two
employees were not acting in the scope of employment when they
attended an after party following a work event hosted by their
employer. The decision in Poole v. Lombard General Insurance
Company of Canada, 2012 BCCA 4341, is the latest in
a series of claims arising from an incident in which an articling
student was injured while dancing with colleagues at a nightclub
following a firm-sponsored dinner.
The events giving rise to the accident began with a dinner which
the defendant law firm hosted for its students and associates.
After dinner, a number of employees, including Ms. Danicek and Mr.
Poole, decided to go dancing at a nearby nightclub. While on the
dance floor, Mr. Poole accidentally struck Ms. Danicek and knocked
her to the ground. Ms. Danicek suffered a mild traumatic brain
injury and, subsequently, a disabling headache disorder. She sued
her employer and Mr. Poole. During the first phase of the trial,
the court found that Ms. Danicek's injuries were caused by Mr.
Poole, and awarded her damages in the amount of
In a related proceeding, Mr. Poole sought a determination that
Ms. Danicek's injury had arisen in the course of her
employment, such that her claim was barred under the B.C.
Workers' Compensation Act. The Workers' Compensation Appeal
Tribunal (WCAT) rejected that argument. The Tribunal accepted that
the employees' attendance at the dinner provided some benefit
to the employer and therefore may have had some connection to
employment. However, it went on to find that the subsequent
attendance at the night club did not benefit the employer.
Accordingly, the injuries sustained at the nightclub did not arise
"out of and in the course of employment" so as to be
compensable under workers compensation legislation.
Following the WCAT decision, Ms. Danicek settled her claim
against Mr. Poole. Mr. Poole then brought an action seeking a
declaration that his liability was covered under his employer's
insurance policy3. In that action, the trial judge found
that Mr. Poole was not covered by the employer's insurance
because his conduct did not fall within the scope of his
employment. The trial judge accepted that Mr. Poole's
attendance at the dinner did have a connection to his employment,
however, that connection became tenuous when he attended the
nightclub. In reaching this conclusion, the trial judge noted that
the employer did not require employees to attend the nightclub nor
was that outing sponsored by the employer, even though it
reimbursed employees for nominal expenses incurred during that
portion of the evening. Although WCAT's conclusion on the issue
was not determinative, the trial judge agreed with its conclusion
that the employer received no benefit from the employees'
attendance at the nightclub.
Mr. Poole appealed the decision arguing that his conduct arose
with respect to his employment and, therefore, was covered under
the employer's policy of insurance. In advancing this argument,
Mr. Poole suggested that the insurance policy should be interpreted
broadly to provide comprehensive coverage to law firm employees
engaged in firm-related social activities that did not strictly
fall within the scope of employment. Mr. Poole maintained that the
attendance at the nightclub was an extension of the associate
dinner and that his attendance there had "some
connection" to employment, which was sufficient to bring him
within the scope of coverage under the insurance policy. The Court
of Appeal rejected this argument, upholding the trial judge's
conclusion that Mr. Poole's conduct was not covered under the
employer's policy of insurance. As the Court of Appeal
explained, the social aspects of the attendance at the nightclub
far outweighed the very tenuous connection it had to
1Poole v. Lombard General Insurance Company of
Canada, 2012 BCCA 434
2Danicek v. Alexander Holburn Beaudin &
3Danicek v. Alexander Holburn Beaudin &
Lang, 2011 BCSC 652010 BCSC 1111
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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