by Nancy Gardiner
Northern News Services

NNSL (Sep 05/97) - The Supreme Court of Canada has upheld the validity of the "historic trade-off" that protects employers who pay into the workers' compensation boards from civil lawsuits over workplace accidents.

The ruling, although it deals with a Saskatchewan case, could have serious consequences for a lawsuit resulting from the Sept. 18, 1992 Gaint mine explosion.

Not everyone agrees on the significance of last week's ruling, however.

In a 6-1 decision last week, the high court upheld a Saskatchewan Workers' Compensation Board ruling that blocks injured parties from suing in civil court. As a result, the only compensation they are entitled to is from the Workers' Compensation Board.

Two men were killed and six injured near Estevan, Sask., in May 1990 while working at the Shand power construction site. A crane toppled over in high winds and landed on a trailer.

The families and workers were not satisfied with the WCB payments and were making additional claims on Shand.

"Legislation for Giant Mine is different from Saskatchewan, but this may affect Giant Mine and is more likely to affect the miners at Westray," said the Saskatchewan families' lawyer, Tony Merchant, referring to the Nova Scotia coal mine, where some two dozen miners died five years ago.

However, Philip Warner, who represents the families involved in the Giant Mine civil suit, said lawsuits resulting from the Giant Mine explosion "don't appear to be affected by the decision."

Warner, of the Edmonton law firm Bishop and McKenzie, said his assessment is preliminary, but he still has to review the decision.

At issue is the "historic trade-off," as it is commonly called, in which employers are protected from civil suits in return for paying into workers' compensation funds.

"Workers get no-fault benefits but can't sue employers, and employers get protection from lawsuits but they have to fund the Workers' Compensation system through levies," said Robert Richards, legal counsel for the WCB in Saskatchewan.

"From a policy perspective, I feel most WCBs would welcome this decision because it protects the integrity of the system," he added.

And Richards said he believes there is some connection to the Giant mine civil suit. "The families (of Giant) intervened and participated in this case," he added.

He said the Saskatchewawn decision means "you can only upset WCB decisions if they were 'patently unreasonable,' in the case of a standard of review the courts apply when reviewing decisions by the WCB.

Merchant said many WCB claimants are unhappy with what they receive from the boards.

"You have one fellow who has no arms -- when he goes to the bathroom, his wife has to clean him -- getting $2,000 a month and he used to earn $70,000 a year. That's typical of WCB. You have widows who work, and WCB takes off money from their WCB benefits. They keep the premiums low, but what was to have helped working people has come to hurt the people it was designed to assist."

Whether last week's ruling will affect the Giant Mine suit remains unclear. Examinations for discovery in the Giant case will take place over the next one and a half years. Only after that process, will courts if the case will go to trial.