A workers’ compensation tribunal in British Columbia has ruled that alleged sexual assaults by an employer against his personal assistant occurred in the course of employment, potentially barring the victim from pursuing civil litigation against him.
The Workers’ Compensation Appeal Tribunal (WCAT) determined that K.V., who worked as a personal assistant to D.B., the owner of an auto dealership, was a worker under the Workers Compensation Act when the alleged incidents occurred between December 2017 and April 2022.
The ruling came through a certification to court application, where WCAT was asked to determine whether the parties had worker and employer status under the compensation system. Such determinations can significantly impact whether civil lawsuits can proceed, as workers’ compensation is typically the exclusive remedy for workplace injuries.
Complex employment relationship
The case involved an unusual employment arrangement where K.V. served as personal assistant to D.B., who owned multiple companies including 330542 BC Ltd., which operates as an auto dealership. The tribunal found K.V.’s employment began in December 2017, despite some documentation suggesting a March 2018 start date.
K.V. alleged that D.B. subjected her to “repeated, unwanted physical contact of a sexual nature, or the threat thereof” throughout her employment. The allegations included kissing, groping, exposure, and approximately 10 incidents where D.B. allegedly “came into her room naked and put his ‘penis into my privates.'”
The tribunal noted that K.V. traveled extensively with D.B. as part of her duties, including trips to Maui and Vancouver. She testified that “whenever she was in Maui or Vancouver with [D.B.], she was working” and that “all of the time she spent with [D.B.] from 2017 onwards was as his employee.”
Blurred boundaries between work and personal life
A key issue was determining whether the alleged incidents occurred during the course of employment, given the extensive personal interaction between K.V. and D.B. The evidence showed D.B. joined K.V.’s family for celebrations, holidays and vacations, and allegedly gifted her family millions of dollars.
The tribunal acknowledged that “there was more than just a business relationship between [K.V.] and [D.B.]” but ultimately concluded the employment features outweighed the personal features.
WCAT applied a nine-factor test to determine whether incidents arose out of and in the course of employment. The tribunal found that most factors supported an employment connection, including that incidents occurred on employer premises (including D.B.’s homes), during times when K.V. was being paid, and involved her supervisor.
Policy considerations for assault cases
The tribunal relied heavily on workers’ compensation policy regarding personal injuries from assaults, noting that “an assailant’s attack on a worker may bring the worker into the course of the employment, even though the assault does not occur at the workplace or during working hours.”
The decision also considered policies on work-related travel, finding that K.V. was essentially on business trips when traveling with D.B., which created a continuous employment connection.
WCAT treated the alleged incidents as a cumulative series of events rather than analyzing each separately, stating that “given the alleged ongoing pattern of such conduct, I consider that it may appropriately be addressed as a whole.”
Legal implications
The ruling has implications for K.V.’s ability to pursue civil litigation. Under section 127 of the Workers Compensation Act, workers’ compensation is generally the exclusive remedy for workplace injuries, meaning civil lawsuits are prohibited.
However, the exclusivity rule doesn’t apply if the conduct that caused the injury didn’t arise out of and in the course of employment. In this case, the tribunal had previously found that D.B.’s conduct didn’t meet that test, but the current ruling on K.V.’s status could still affect her ability to sue.
The company’s counsel had argued that similar to a recent BC Supreme Court case, even if the alleged perpetrator’s conduct fell outside employment scope, the victim’s claim could still be barred if both parties were workers and the victim’s injuries arose in the course of employment.
Company status determination
The tribunal also found that 330542 BC Ltd. was an employer under the Workers Compensation Act and that any action by the company or its agents that breached a duty of care to K.V. arose out of and in the course of employment.
However, this finding excluded D.B.’s alleged assault and battery, as the tribunal had previously determined his conduct fell outside employment scope. It also excluded any potential injury from the manner of K.V.’s termination, as no party requested a determination on that issue.
D.B. suffers from Huntington’s disease, which the tribunal noted affected his memory and may have limited the reliability of his testimony during examination for discovery.
The original civil lawsuit involved claims that K.V. and her family members defaulted on $4.7 million in loans from D.B., which they claimed were gifts rather than loans.
For more information, see A2500746 (Re), 2025 CanLII 54148 (BC WCAT).
