BC Hydro Illegally Dissuaded Worker Seeking Injury Pay

The Supreme Court of British Columbia has upheld Workers’ Compensation Board decisions that found BC Hydro illegally discouraged a worker from claiming compensation for a workplace injury.

The case dates back to November 2020 when an unnamed worker “raised concerns about a fellow employee” and engaged BC Hydro’s respectful-workplace process. Three months later she went off work for medical reasons that are described in the court record as a “mental disorder” but are otherwise unspecified.

In a March 2021 ruling, Justice Jennifer Whately said that “BC Hydro management met with the worker, and advised that she would receive disability benefits and that further, she was not required to file a claim with the [Workers’ Compensation] Board.”

The disability benefits would have come from a private insurer, rather than WCB, a Crown corporation that operates as WorkSafeBC and provides compensation when workers lose time at work due to workplace injuries.

Employers are required to report any injury that results in an employee losing time at work. They can be fined $6,557 for a first offence if they don’t report injuries, though offences have rarely been investigated or punished.

BC Hydro told the court that its staff had been “under the mistaken impression that it needed to investigate the claim before reporting the worker’s claim to the Board” and that they did not seek to dissuade the worker from filing a claim.

The publicly owned Crown corporation, which provides electricity to more than 1.9 million customers in B.C., has about 8,100 employees.

The worker gave the court evidence that BC Hydro management advised her “that it was preferable for her to stay on disability benefits rather than reporting the claim to the Board, because an investigation would be upsetting and unpleasant for her.”

BC Hydro later advised the worker she could file a claim with WCB herself, which she eventually did. The court ruling says that happened in August 2021, but WCB’s records show the file was in fact opened in August 2023, making it more than two and a half years after the worker went off work. A spokesperson for WCB attributes the discrepancy in dates to a typo in the court ruling.

After receiving the claim, WCB completed an inspection report and made an order against BC Hydro finding “the employers [sic] management at this workplace have openly impeded a worker from reporting their injury to the Board.”

Doing so contravened Section 73 of the Workers Compensation Act, WCB said, as quoted in Whately’s decision: “An employer or supervisor must not by agreement, threat, promise, inducement, persuasion or any other means seek to discourage, impede or dissuade a worker of the employer, or a dependant of the worker, from reporting to the Board an injury, whether or not the injury occurred or is compensable under the compensation provisions.”

BC Hydro challenged WCB’s finding by arguing that Section 73 of the act didn’t capture “mental disorder” at the time of the events and that BC Hydro “did not have the required intent to discourage the worker from filing the claim,” and “notwithstanding its initial misunderstanding of the appropriate procedure at the time, BC Hydro stated that it did not in fact discourage the worker from filing the claim.”

WCB made its original decision against BC Hydro on June 11, 2024. A month later, in a second decision, its chief review officer declined to reconsider the finding.

Judge sides with WCB’s handling

Whately found that WCB’s decisions were reasonable.

“I agree with the Board that a finding of intent to dissuade does not require a finding of mal-intent, or bad faith intent,” she said. “Whether BC Hydro’s management was mistaken in understanding the process, or trying to protect the worker from upset or an unpleasant investigation, Decision 1 clearly finds that BC Hydro intended to dissuade reporting.”

BC Hydro dissuaded reporting to WCB by advising the worker that reporting to WCB might not be in her immediate best interest and ensuring the worker received continued payments from the disability insurer, she said.

“Whether BC Hydro intended to delay or dissuade reporting so it could complete its own investigation first, or because it was concerned about the worker — neither of these scenarios preclude a finding that BC Hydro intended to dissuade.”

BC Hydro spokesperson Kevin Aquino said employee safety is BC Hydro’s top priority and a responsibility it takes seriously, adding that reporting injuries and incidents is a key part of that commitment.

“BC Hydro brought this petition because we believed there was uncertainty among employers about how mental disorders should be reported to WorkSafeBC and we were seeking clarity on how Section 73 of the Workers Compensation Act should be interpreted and applied,” he said in an email.

BC Hydro did not intentionally engage in claim suppression, Aquino said. “At the time, we misunderstood the reporting process for mental disorders and believed an incident needed to be investigated before it was reported to WorkSafeBC.”

BC Hydro supported the employee throughout the process and ensured they received benefits, he said, adding that the court found “there was no bad faith or malicious intent by BC Hydro.” But the court also determined that intent was not required for a finding under Section 73 of the Workers Compensation Act and that “injury” under the section includes mental disorders.

“The decision provides guidance on how Section 73 applies and confirms that an incorrect understanding of reporting requirements does not prevent WorkSafeBC from finding that a worker's claim was delayed or impeded,” said Aquino. “The issue stemmed from an unintentional process error that has since been corrected, and BC Hydro has updated its procedures to ensure compliance going forward.”

He noted that WCB did not impose any penalties on BC Hydro as a result of the inspection.

A good precedent, says former WCB appeals official

The court ruling is potentially good news for injured workers, said Paul Petrie, a former vice-chair of the Workers’ Compensation Appeal Tribunal who has provided advice to WorkSafeBC on fixing the compensation system.

“It indicates that Board decisions to enforce the prohibition against claim suppression in [Section] 73 will be given wide deference by the courts where the decision ‘falls within the realm of reasonable outcomes,’” he wrote in an email.

When employers have programs to pre-screen injured workers and dissuade them from reporting their injuries to WCB, they are at risk of enforcement action from WCB, he said. “Where such violations are found to exist, the Board should audit those programs as recommended in my 2022 report to the WCB Board of Directors.”

WCB is funded by premiums paid by employers, along with investment income. In what is sometimes referred to as the “historic compromise,” both employees and employers give up the right to sue in exchange for a predictable no-fault method of determining how much support an injured worker is entitled to.

Steve Mantis, the chair of the Ontario Network of Injured Workers Groups’ research action committee, said the events described in the B.C. court case are typical of what many workers experience.

“The more we dig into this, we’re seeing claim suppression happen more and more and more,” Mantis said, adding that the experience rating system that reduces WCB rates for employers with workplaces that have few claims provides an incentive for employers to suppress claims.

It’s important to report workplace injuries to the WCB because it’s impossible to know the long-term impact of an injury and it can be important to have the claim established if there’s a need to seek compensation in future, he said.