Case Citation: Fushtey v. WCB, 2024 ABKB 725

Facts of the Case

On March 23, 2018, Darryl Fushtey, an employee of Codeco-Vanoco Engineering Inc. (“Codeco”), was killed in a vehicle accident while traveling to northern Alberta. The Workers’ Compensation Board of Alberta determined that the accident arose out of and occurred in the course of Mr. Fushtey’s employment. Codeco had reported the accident as work-related, asserting that Mr. Fushtey was performing employment duties at the time of his death. The driver of the other vehicle was also in the course of employment at the time of the accident, which engaged the bar on personal injury lawsuits under section 23 of the Workers’ Compensation Act. As Mr. Fushtey and the defendant driver were both in the course of employment at the time of the accident, Mr. Fushtey’s Estate was only entitled to limited WCB benefits. 

The Estate of Mr. Fushtey disputed the WCB’s decision, arguing that he was not killed in the course of employment as he was pursuing a personal investment opportunity on behalf of a private group of investors. In an action against the at-fault driver the Estate would be entitled to bereavement, income losses, and other benefits that are not available to the Estate under the WCB policy. The benefits available in the personal injury action far exceed those provided by WCB so it was in the Estate’s best interest to dispute the WCB’s decision.

The Appeals Commission for Workers’ Compensation upheld the WCB’s decision, concluding that Mr. Fushtey’s activities were primarily directed by and beneficial to Codeco. The Estate then brought an application before the Alberta Court of King’s Bench, arguing that the Appeals Commission had made errors of law and unreasonably applied WCB policy.

Court’s Decision

Justice N. Dilts reviewed the matter and dismissed the Estate’s application to overturn the WCB’s decision. The Court affirmed that Mr. Fushtey’s travel was under the direction and control of Codeco. Codeco’s business development strategy involved assessing potential purchases of safety and emergency services companies, often through groups of employees who would act as investors. Mr. Fushtey’s role included conducting such assessments as part of his employment duties, and Codeco reimbursed his travel expenses. The Appeals Commission’s decision was deemed coherent, logical, and supported by evidence, including testimony from Codeco’s executives and records showing that Mr. Fushtey’s trip aligned with Codeco’s business objectives.

The Estate argued that Mr. Fushtey was acting as a partner in a partnership, which would exclude him from being classified as a worker under the Act. The Court disagreed, finding no evidence that the investment group met the legal definition of a partnership or that Mr. Fushtey’s activities were independent of Codeco’s direction. Furthermore, the Estate contended that Mr. Fushtey’s travel had dual purposes—personal and professional—and that WCB policy required employment to be the sole cause of the activity. The Court rejected this interpretation, noting that the Appeals Commission correctly applied the “but for” test to determine that the primary purpose of the trip was work-related.

Conclusion and Takeaways 

This case highlights the importance of determining whether an accident arises out of and occurs in the course of employment. Mixed motives for an activity do not preclude WCB coverage if the primary purpose aligns with the employee’s employment duties. The case affirms that personal motives do not negate WCB coverage if the predominant purpose of a trip benefits the employer. 

KB Justice: N.F. Dilts

Heard: November 13, 2024

Neil Zimmerman