The Workers’ Compensation Appeal Tribunal (WCAT) in British Columbia has ruled that allegations of sexual assault brought by a former personal assistant against her employer, while serious, did not arise out of or in the course of the alleged assailant’s employment.
The tribunal’s decision means the court action involving claims of assault and battery can proceed through the civil courts rather than being barred by workers’ compensation legislation.
The case centres on K.V., who filed a counterclaim in 2022 against her former employer, 330542 BC Ltd. (doing business as Regency Chrysler), and its principal, D.B., alleging wrongful dismissal and repeated sexual misconduct during her employment from 2017 to 2022. The company applied to WCAT for a certification to court, seeking determinations on whether the claims fell within the scope of the Workers Compensation Act and were therefore barred.
While the tribunal found that D.B. was a “worker” under the Act, it concluded that the alleged acts, if proven, were not employment-related and constituted a “substantial deviation” from the course of employment.
“Any action or conduct of [D.B.], which caused the alleged breach of duty of care, did not arise out of and in the course of his employment within the scope of the compensation provisions of the Act,” the tribunal concluded.
Allegations of repeated misconduct
According to her counterclaim, K.V. alleged that D.B. engaged in “persistent, harmful, and unwanted physical contact of a sexual nature” beginning in December 2017 and continuing until her termination in April 2022. Her role as a personal assistant to D.B. required frequent travel with him to locations including Maui, Hawaii, and Kelowna, B.C., where many of the incidents are alleged to have occurred.
Among the allegations: unwanted kissing, groping, indecent exposure, and approximately ten incidents of sexual assault, including non-consensual sexual penetration while on work trips.
While D.B. denies all allegations, for the purposes of the WCAT hearing, the panel assumed the allegations were true — a standard approach for determining jurisdiction in certification to court applications.
Tribunal considers employment connection
Central to WCAT’s determination was whether D.B.’s alleged conduct occurred “in the course of” his employment and whether it “arose out of” that employment.
The employer’s legal counsel argued that both D.B. and K.V. were constantly working due to the nature of their roles — that of a company principal and personal assistant, respectively — and that the incidents occurred during work-related travel. The panel accepted that both parties were workers under the Act and that their business trips qualified as employment activities under Board policies on travel and employment connection.
But WCAT distinguished between employment-connected activity and conduct so egregious that it represents a departure from employment duties.
“Even if I were to find that [the policies] could support a conclusion that D.B. was in the course of his employment during the times of his alleged misconduct, I consider [the policy on deviations from employment] to be critical to the analysis,” the panel wrote.
A ‘substantial deviation’ from employment
The tribunal found that, assuming the allegations are true, D.B.’s conduct amounted to a “substantial deviation” from the duties and expectations of his role, removing him from the course of employment under the Act.
It cited WCAT precedent in Rudolph v. Bennett, where a fire chief’s ongoing pattern of sexual harassment and assault was also deemed unrelated to employment due to personal motivations.
“This is not a situation where D.B.’s alleged misconduct represented a spontaneous reaction to a workplace situation,” the tribunal wrote. “The repeated nature of his actions points to an intentional pattern of conduct rather than a spontaneous reaction to a particular workplace event.”
It added that any suggestion that being “always on duty” as a company principal somehow made such conduct employment-related would be “nonsensical.”
“I can see no duties that [he] had… that would cause him to participate in alleged assault and battery… to bring his conduct within the course of his employment.”
No finding on termination-related injury
While the tribunal’s decision resolved the status of D.B. with respect to the assault and battery allegations, it declined to rule on any potential workplace injury arising from the manner of K.V.’s termination in April 2022. Her counterclaim also seeks damages for breach of contract and claims the dismissal was handled in a callous and vengeful manner.
That issue remains open, and the parties may seek a separate WCAT determination related to the termination itself, the tribunal said.
Tribunal affirms court jurisdiction
With its findings, WCAT certified to the B.C. Supreme Court that although D.B. met the definition of a worker under the Act, the alleged misconduct was outside the scope of employment. As a result, the civil court retains jurisdiction to hear the counterclaim.
The ruling underscores the narrow scope of the Act’s coverage for workplace injuries when the alleged misconduct is personal in nature and disconnected from employment duties.
For more information, see A2401673 (Re), 2025 CanLII 34724 (BC WCAT).
