Scales of Justice, Image courtesy Creative Outlet
Scales of Justice, Image courtesy Creative Outlet

Scales of Justice, Image courtesy Creative Outlet Scales of Justice, Image courtesy Creative Outlet

Teacher’s elbow injury case against Surrey School District, WorkSafeBC struck by judge

Judge says processes put in place by legislation, collective agreement must be followed

A Surrey school teacher who launched a lawsuit against the Surrey School District and WorkSafeBC after injuring his elbow during shop class in January 2018 has lost a court battle after a B.C. Supreme Court judge struck the civil action.

Mykola Misiak, who has been a teacher since 1999, filed a lawsuit against Surrey School District 36, WorkSafeBC, Scott McRae, Jennifer Papageorge, Lynn Gonske.

The defendants applied to have the case struck or dismissed.

“My order today is just that your action be struck, not dismissed,” the judge told the plaintiff. A struck case can be re-opened but a dismissed case is closed.

Justice Ian Caldwell rendered his reasons for judgment in a videoconference.

“There may be, and I acknowledge this, Mr. Misiak, you may have very serious complaints and very serious injuries, you may have very legitimate claims and complaints about the system, but there is a system in place to deal with that, and that is the administrative process that you must undertake.”

Caldwell noted that processes put in place by legislation and his collective agreement must be followed.

“The court has no discretion with respect to that. The court has no role at this point. It retains only its role in terms of judicial review function at the end of the process, once it has run its course,” he said. “At the end of the day, there is really little alternative. The notice of civil claim in this situation must be struck in its entirety.”

The court heard Misiak’s injury required surgery. The judge remarked “it is interesting to note that he said in his complaint that he heard a pop and his elbow gave out.”

Misiak has to date received just over $80,000 in compensation from the workers compensation board, the judge noted.

“The notice of civil claim filed basically indicates that the claimant is not happy with the way that either the School District or their representative Ms. Gonske, or the Workers’ Compensation Board or their representatives, Mr. McRae and Ms. Papageorge, handled the matter,” Caldwell noted in his reasons. “He alleges that there were errors, he was not believed, there were delays, and the like; and this has caused him physical injury, delays in treatment, financial injury, as well as stress and anxiety. He says that the school has changed his position in terms of the accommodation and, as a result of that, he has lost salary, promotion opportunities, and seniority.”



tom.zytaruk@surreynowleader.com

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