On July 10, 2012, two Yukon Government employees were being
transported by helicopter during a project involving the collection
of grizzly bear hair samples. Regrettably, the employees were
injured during an attempted landing. As a result of the accident,
they commenced a lawsuit against Horizon Helicopters, the owner and
operator of the helicopter.
In many jurisdictions across Canada, Workers' Compensation
legislation provides a "statutory bar", which prevents
one worker from pursuing a lawsuit against another worker or
against an employer when he or she is injured while in the course
and scope of employment (i.e. while working). Instead, the worker
must apply for WCB benefits. Under Yukon legislation, a worker may
choose whether to apply for WCB benefits or pursue a lawsuit if the
work-related injury arose from the use and operation of a vehicle.
A vehicle is defined as being any mode of transportation (such as a
helicopter), the operation of which is protected by liability
insurance. As required by Federal regulations, Horizon's
helicopter was insured by a liability insurance policy. Therefore,
the Yukon Government employees were permitted to pursue a lawsuit
against Horizon for damages.
In responding to the claim, Horizon asked the court to rule that
the Yukon Workers' Compensation Act (the
"Act") only allowed the Plaintiffs to recover an amount
equal to the limit of Horizon's insurance policy.
On a first review of the issue, a Yukon Judge found that there
was no ambiguity in the wording of the Act. The court refused to
interpret the legislation in the manner suggested by Horizon.
Unlike a similar provision in the Northwest Territories (and
Nunavut), there was no specific language limiting recovery to the
employer's insurance policy limit, and therefore the Judge
found that the Act does not limit the maximum liability of an
employer or worker. On appeal, the Yukon Court of Appeal
unanimously agreed (click here for decision).
This decision makes it clear that Yukon operators of fixed-wing
and rotary aircraft may themselves be exposed to claims for damages
which exceed their policy limits in circumstances where one or more
"workers", other than their own employees, are injured or
killed as a result of an accident involving the use or operation of
their aircraft. Depending upon the size and use of aircraft,
operators should carefully consider the amount of coverage they
have and consider the need to increase policy limits. Whereas in
most jurisdictions of Canada, operators will be protected against
claims being brought against them by "workers" by reason
of a WCB statutory bar, Yukon does not provide the same
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