More than eight years after a terrifying chairlift crash at the now-defunct Crystal Mountain Resort in West Kelowna, the Workers' Compensation Appeal Tribunal has determined a former ski patroller who was injured in the incident is eligible for compensation through WorkSafeBC. But the patroller had argued he shouldn't be.
On March 1, 2014, two chairs at the ski hill came crashing to the ground when a cable came loose. Four people were injured in the crash, including volunteer ski patrollers Kevin Gourlay and his partner Maegan Harvey.
The resort has never reopened since the crash occurred.
Both Gourlay and Harvey initially submitted claims to WorkSafeBC seeking compensation for the injuries they suffered, but their claims were denied after WorkSafe concluded the plaintiffs were volunteers.
As a result, the pair then filed civil lawsuits against Crystal Mountain in 2016, and separate trials for both matters were scheduled to begin in the summer of 2019.
But shortly before the trials were set to begin, Crystal Mountain successfully applied to have the trials adjourned while the resort appealed the WorkSafe decision.
The Workers Compensation Act bans an employee from suing their employer if they receive compensation from WorkSafeBC.
Crystal Mountain said WorkSafe had denied Gourlay and Harvey's claims based on “incomplete information.” Additionally, the Workers' Compensation Appeal Tribunal had recently ruled that volunteers may be considered “workers” under the Act in circumstances where they receive some benefit from their volunteer work.
At some point, Harvey's action against Crystal Mountain was “resolved,” but it's not clear if she settled her case with the resort, or how much money a possible settlement involved. A third person injured in the incident, Lawrence Waldenberger, has settled his civil suit with Crystal Mountain.
More than three years after Crystal Mountain filled its application with the Workers' Compensation Appeal Tribunal, the tribunal ruled last month that Gourlay should be considered a “worker,” and that his “injuries arose out of and in the course of his employment within the scope of the compensation provisions of the Act.”
Gourlay, meanwhile, opposed Crystal Mountain's application to the WCAT, and argued he was a volunteer ski patroller who should not be covered by the compensation of the Workers Compensation Act. It's not clear why Gourlay took this position on the application, after first applying for WorkSafeBC coverage prior to filing his lawsuit, but Gourlay will likely be unable to pursue his lawsuit against Crystal Mountain now that he's eligible for compensation through WorkSafe .
Gourlay's lawyer, Vahan Ishkanian, told Castanet he was unable to discuss the matter, as it's “before the courts.”
In its decision, the WCAT noted Gourlay received a season pass in exchange for nine ski patrol shifts throughout the 2013/14 season, which was worth $449 or $695 depending on when the pass was purchased.
“While the value of the season ski pass, when calculated based on the number of hours the plaintiff had committed to work, was less than minimum wage, I do not view the value of the ski pass as insubstantial,” wrote Guy Riecken, vice chair go the WCAT in his decision.
“I conclude that the plaintiff’s provision of ski patrol services was part of the business organization of Crystal Mountain and that the operational routines of the relationship between the plaintiff and Crystal Mountain were more consistent with employment than with volunteering.”