In Gourlay v. Crystal Mountain Resorts Ltd., 2020 BCCA 191, B.C.’s Court of Appeal acknowledged precedents in which litigants constituted a judge/panel of judges as arbitrator(s) but, on the facts, held that no such agreement existed in the action. Such an agreement, if established, also entailed consequences, familiar to arbitration, such as an inability to appeal unsatisfactory orders. The Court’s reasons omit the Court’s own consideration of whether consent to have a judge sit as arbitrator could validly be given or enforced. Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application.
Serving as a ski patroller at a ski hill operated by Crystal Mountain Resorts Ltd. and Crystal Ski & Golf Resort Inc. (“Crystal Mountain”), Appellant suffered injuries in a chairlift incident. Though not paid, Appellant received benefits from Crystal Mountain for his service on the ski patrol: seasonal ski pass; discounts on ski waxing; restaurant discounts (possibly 50%); an occasional family pass; and, coverage under a disability insurance program.
Appellant applied March 1, 2014 for benefits under Workers Compensation Act, RSBC 1996, c 492 (“WCA”), since repealed/now replaced by Workers Compensation Act, RSBC 2019, c 1, but was denied March 19, 2014 because, in the opinion of WorkSafeBC at the time, Appellant was not in an employment relationship with Crystal Mountain. WorkSafeBC’s assessment, reproduced at para. 8, reasoned that Appellant did not fulfil the minimum number of shifts and, in lieu of compensation, received a season ski pass.
Appellant commenced a civil action in early 2016 against Crystal Mountain and the latter defended. The defense did not mention that Appellant’s action was barred by WCA. During discovery, Appellant was not questioned about any exchanges regarding WCA.
At a January 22, 2108 case planning conference, following same day exchanges between counsel, the judge issued a case plan (“Case Plan”) in which he ordered, among other things, that the trial of the matter will deal with the assessment of damages only. In trial briefs later filed in April 2019, Appellant stated that Crystal Mountain admitted liability and Crystal Mountain confirmed that the parties have agreed that liability will not be contested by Crystal Mountain. The trial was set down for July 2, 2019 for eight (8) days without a jury.
At paras 22-23, the reasons note the first mention in May 2019 between counsel of a document request for WorkSafeBC file. On May 21, 2019, Crystal Mountain also requested all WCB correspondence Appellant had regarding the question of whether Appellant’s claims by WCB.
“ That day, the legal department of the Workers’ Compensation Appeal Tribunal (“WCAT”) provided Crystal Mountain’s counsel with a copy of WCAT Decision No. A1703068 (March 27, 2019). In that decision, the WCAT held that a ski patroller injured while training at a ski resort as a member of a volunteer ski patrol organization was in an employee/employer relationship with that organization and, therefore, a worker within the meaning of the WCA. It further held that the ski patroller was not an employee of the resort.
 At a case management conference later on May 21, 2019, Crystal Mountain’s counsel advised Hori J. of the WCAT decision and that he was awaiting production of the WCB files. He further stated that Crystal Mountain would likely seek to amend its responses in both actions to plead s. 10 of the WCA as a defence. The WCA creates a comprehensive system of compensation for workers who sustain injuries out of and in the course of their employment. Section 10(1) [now s. 127(1)] bars a worker from bringing an action against an employer or another worker. Counsel also referred to s. 257 [now s. 311], which allows the court or a party to an action to have the question of whether a person is a worker determined by the WCAT. By virtue of ss. 254 and 255 [now ss. 308 and 309], that determination is final”.
Those exchanges and subsequent receipt of the documents relating to WCA lead Crystal Mountain (i) to seek leave to amend to allege that Appellant’s claims were statute barred by the WCA and (ii) to request adjournment of the trial. Both applications were granted by the judge in chambers in Gourlay v. Crystal Mountain Resorts Ltd., 2019 BCSC 1134. Appellant appealed but unsuccessfully.
As part of its reasons, the Court stated that it is “well established” that if there is a question whether provisions of a workers’ compensation scheme bars an action, then the action should not proceed until the compensation authority, with exclusive jurisdiction to decide it, determines plaintiff’s status, referring to The Dominion Canners Ltd. v. Costanza, 1922 CanLII 3 (SCC),  S.C.R. 46 as the “seminal authority”.
Private tribunal – In dealing with the appeal, the Court had to determine whether the Case Plan precluded the chambers judge from allowing the amendment. See paras 44-76.
In the context of that determination, the Court addressed a specific argument not raised in Appellant’s argument in chambers or in his factum. The argument was only raised for the first time in Appellant’s reply factum and again in oral reply.
Appellant argued that the parties had, by agreement, constituted the B.C. Supreme Court as a “private tribunal” entitled to award him damages “even if he did not have a justiciable cause of action”. In his argument, Appellant raised three (3) cases: The Canadian Pacific Railway Company v. Fleming (1893), 1893 CanLII 61 (SCC), 22 S.C.R. 33; Wong Soon v. Gareb, 1935 CanLII 256 (BCCA); Conant Paints Ltd. v. Clark, 1955 CanLII 381 (ONCA). The Court did not find the cases applicable given how Appellant and Crystal Mountain conducted their litigation.
In its analysis of Appellant’s ‘private tribunal’ argument, at paras 66-73, the Court addressed each of them and added a fourth: Saxon v. Saxon, 1978 CanLII 2647 (BCCA) (regarding the appeal from Saxon v. Saxon, 1976 CanLII 1540 (BCSC)).
“ In Fleming, Mr. Fleming commenced an action against a railway company for damages sustained as a result of a collision with a locomotive. That action went to trial before a judge of the Supreme Court of New Brunswick sitting with a jury. At that time, in New Brunswick, only a jury had authority to decide questions of fact and assess damages. At the conclusion of the evidence counsel consented to the case being withdrawn from the jury and referred to the Supreme Court sitting in banc for decision. The agreement was entered in the Court’s minutes.
 The case was then decided by six judges, one of whom had been the trial judge. A majority (4:2) found for Mr. Fleming and awarded him damages: (1892), 31 N.B.R. 318. The railway appealed to Supreme Court of Canada. On that appeal, Mr. Fleming took a preliminary objection to that Court’s jurisdiction, submitting that the company could no more appeal to the Supreme Court than it could if the matter had been decided by private arbitrators. A majority of the Court (3:2) agreed and quashed the appeal, describing the in banc judges as having acted as “quasi arbitrators”: at 36. The dissenting judges would have allowed the appeal”.
(ii) Wong Soon v. Gareb, 1935 CanLII 256 (BCCA) – (para. 69)
“ In Wong Soon, an action was commenced in the Supreme Court of British Columbia for damages for trespass and to recover possession of property. The parties entered into a written agreement that a County Court judge would try the matter in the County Court. With the consent of the parties, a local judge of the Supreme Court made an order purporting to give effect to that agreement under the provisions of the County Courts Act, R.S.B.C. 1924. C. 53. Later, a County Court judge found for the plaintiff and the defendant appealed. The appeal was quashed on the basis that the local judge did not have jurisdiction to order the action tried in the County Court; therefore, no appeal was available. This Court found that the parties had agreed to have a County Court judge act as an arbitrator”.
(iii) Conant Paints Ltd. v. Clark, 1955 CanLII 381 (ONCA) – (para. 70)
“ In Conant Paints, the parties agreed a local judge of the Supreme Court of Ontario could hear a debt-related matter beyond his jurisdiction. In holding that an appeal from the judge’s decision did not lie, the Court of Appeal held that the parties had consented to “the determination of their rights outside of the ordinary course of the Court”: at 154-155”.
(iv) Saxon v. Saxon, 1978 CanLII 2647 (BCCA) – (para. 71)
“ There is also Saxon v. Saxon, 1978 CanLII 2647 (BC CA),  4 W.W.R. 327 (B.C.C.A.). In that case, a local judge of the Supreme Court of British Columbia tried an action that was beyond his jurisdiction. The case is unusual in that the judge, who had raised the question of his jurisdiction at the outset, held that the parties by their conduct had consented to his acting as a quasi-arbitrator: 1976 CanLII 1540 (BC SC),  4 W.W.R. 300 at 304. In the result, the judge issued an arbitral award in Mrs. Saxon’s favour. In subsequent proceedings relating to the enforcement of that award, this Court agreed that Mr. Saxon had consented to the judge acting as a quasi-arbitrator: at 332-333”.
In dismissing Appellant’s ‘private tribunal’ argument, the Court made three (3) observations.
First, the Court made no attempt to discourage or diminish the precedents given by those cases.
Second, the Court only held that the record contained nothing to demonstrate consent of the parties to having damages assessed by a Supreme Court judge sitting as an arbitrator. Their conduct instead was consistent with the judge sitting qua judge and their written agreement stipulated that it be a “trial”.
Third, the Court “cannot help but note” that if Appellant was correct that the parties “agreed to arbitrate damages”, then he would not have a right of appeal “as it may have formed part of the arbitral proceedings”.
urbtral note – First, the Court omitted any mention regarding whether, in its opinion, the parties’ consent to have a judge sit qua arbitrator could validly be given or enforced. Rather, it limited its reasons to acknowledging that it had been done in the past but that the agreement in the case did not support its application. Therefore, the Court was not called on to determine whether it would have recognized that agreement and applied it.
Second, the Court implied that the arbitration would provide no right of appeal. Given that the comment was more as an aside, the Court did not need or offer to explore whether the arbitration agreement would allow for a right of appeal on a question of law absent any express and complete prohibition on appeals.
Third, see the earlier Arbitration Matters note “P.E.I. legislation imposes arbitration before a judge in order to resolve disputes over compensation owing from expropriation”. Unlike most other court decisions in which litigants apply to a judge to send the parties to arbitration or to review an arbitral award, the judge in Haras Management et al. v. Gov. of P.E.I., 2017 PESC 14 was appointed by provincial legislation to sit as an arbitrator to resolve the parties’ dispute and her award was subject to the province’s Arbitration Act, RSPEI 1988, c A-16.
Fourth, the decision records that counsel for Appellant and for Respondents participated in the hearing via videoconference.