Allen v. Workplace Health, Safety and Compensation Review Division et al., 2014 NLCA 42

JudgeBarry, Harrington and Rowe, JJ.A.
CourtCourt of Appeal (Newfoundland)
Case DateSeptember 24, 2014
JurisdictionNewfoundland and Labrador
Citations2014 NLCA 42;(2014), 357 Nfld. & P.E.I.R. 1 (NLCA)

Allen v. WHSCRD (2014), 357 Nfld. & P.E.I.R. 1 (NLCA);

    1109 A.P.R. 1

MLB headnote and full text

Temp. Cite: [2014] Nfld. & P.E.I.R. TBEd. NO.033

Workplace Health, Safety and Compensation Commission (appellant) v. Douglas Allen (first respondent) and Workplace Health, Safety and Compensation Review Division (second respondent)

(14/14; 2014 NLCA 42)

Indexed As: Allen v. Workplace Health, Safety and Compensation Review Division et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Barry, Harrington and Rowe, JJ.A.

November 20, 2014.

Summary:

The Workplace Health, Safety and Compensation Commission calculated Allen's pension replacement benefit (PRB) on the basis of his maximum (assessable) earnings (MAE). The Workplace Health, Safety and Compensation Review Division upheld the Commission's method of calculation. Allen applied for judicial review.

The Newfoundland and Labrador Supreme Court, Trial Division (General), in a decision reported at (2014), 346 Nfld. & P.E.I.R. 286; 1078 A.P.R. 286, concluded that the Commission's and the Review Division's interpretation of s. 75(1) of the Workplace Health, Safety and Compensation Act, as contemplating calculation of the PRB by utilization of MAE figures, was unreasonable. The court quashed the decision and remitted the matter to the Commission for calculation of Allen's PRB without application of the MAE cap. The Commission appealed.

The Newfoundland and Labrador Court of Appeal dismissed the appeal.

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See Workers' Compensation - Topic 5515 ].

Statutes - Topic 1201

Interpretation - Construction where meaning is plain - General principles - [See Workers' Compensation - Topic 5515 ].

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - The Workplace Health, Safety and Compensation Commission calculated Allen's pension replacement benefit (PRB) on the basis of his maximum (assessable) earnings (MAE) - The Workplace Health, Safety and Compensation Review Division upheld the Commission's method of calculation - Allen applied for judicial review - The applications judge concluded that the Commission's and the Review Division's interpretation of s. 75(1) of the Workplace Health, Safety and Compensation Act, as contemplating calculation of the PRB by utilization of MAE figures, was unreasonable - The Commission appealed - The Commission submitted that the applications judge erred by the uncritical adoption of the implied exclusion rule of statutory interpretation, expressio unius est exclusio alterius - The Newfoundland and Labrador Court of Appeal stated that "I am not persuaded that the applications judge erred in his use of the implied exclusion rule in these circumstances. He accepted that this rule is not determinative and applied it only as a guide to interpretation to support his primary conclusion that no compelling contextual basis could be found to support the Commission's main argument that workers' compensation benefits, including the PRB, can only compensate at a rate less than 100% of the worker's demonstrated loss in all cases. Use of the implied exclusion rule in this case does not warrant reversal" - See paragraphs 62 to 64.

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See Workers' Compensation - Topic 5515 ].

Statutes - Topic 2603

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Intention from whole of section or statute - [See Workers' Compensation - Topic 5515 ].

Workers' Compensation - Topic 62

Interpretation - Particular provisions - [See Workers' Compensation - Topic 5515 ].

Workers' Compensation - Topic 5515

Compensation - General - Pension replacement benefits - The Workplace Health, Safety and Compensation Commission calculated Allen's pension replacement benefit (PRB) on the basis of his maximum (assessable) earnings (MAE) - The Workplace Health, Safety and Compensation Review Division upheld the Commission's method of calculation - Allen applied for judicial review - The applications judge concluded that the Commission's and the Review Division's interpretation of s. 75(1) of the Workplace Health, Safety and Compensation Act, as contemplating calculation of the PRB by utilization of MAE figures, was unreasonable - The application judge quashed the decision and remitted the matter to the Commission for calculation of Allen's PRB without application of the MAE cap - The Newfoundland and Labrador Court of Appeal dismissed the Commission's appeal - The applications judge correctly applied the deferential reasonableness standard of review and correctly considered the appropriate principles of statutory interpretation in deciding that the decisions of the Commission and Review Commission were unreasonable because they adopted an interpretation which the words of the statute in proper context could not properly bear - Despite the applications judge's language, which gave an initial impression of commencing with an assumption as to what meaning the so-called plain language of s. 75(1) conveyed, reviewing the entirety of his reasons made clear the applications judge kept an open mind and complied with the requirements of the modern principle of interpretation - Although the judge believed the ordinary or natural meaning seemed apparent enough, he dug deeper into the context and purpose of the provision to see if that would cast doubt on that conclusion and introduce the possibility of another reasonable interpretation - He concluded that there was only one reasonable interpretation - See paragraphs 43 to 61.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - [See Workers' Compensation - Topic 5515 ].

Cases Noticed:

Pasiechnyk v. Saskatchewan (Worker's Compensation Board) - see Pasiechnyk et al. v. Procrane Inc. et al.

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 3].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 11].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [paras. 11, 75].

Archean Resources Ltd. v. Newfoundland (Minister of Finance) (2002), 215 Nfld. & P.E.I.R. 124; 644 A.P.R. 124; 2002 NFCA 43, refd to. [para. 12].

Donovan v. McCain Foods Ltd. et al. (2004), 234 Nfld. & P.E.I.R. 122; 696 A.P.R. 122; 2004 NLCA 12, refd to. [para. 13].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.) (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501 (Nfld. C.A.), refd to. [para. 18].

McLean v. British Columbia Securities Commission, [2013] 3 S.C.R. 895; 452 N.R. 340; 347 B.C.A.C. 1; 593 W.A.C. 1; 2013 SCC 67, refd to. [paras. 25, 75].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 28].

Mount Pearl (City) v. Workplace Health, Safety and Compensation Review Division (Nfld. and Lab.) et al. (2008), 282 Nfld. & P.E.I.R. 14; 868 A.P.R. 14; 2008 NLCA 69, refd to. [para. 29].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 33].

Canada (Canadian Human Rights Commission) v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat, [2011] 3 S.C.R. 471; 422 N.R. 248; 2011 SCC 53, refd to. [para. 34].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 35].

Power v. Workplace Health, Safety and Compensation Review Division (Nfld. and Lab.) et al. (2012), 318 Nfld. & P.E.I.R. 222; 989 A.P.R. 222; 2012 NLTD(G) 4, refd to. [para. 40].

Lemus et al. v. Canada (Minister of Citizenship and Immigration) (2014), 461 N.R. 310; 372 D.L.R.(4th) 567; 2014 FCA 114, refd to. [para. 40].

R. v. Pardy (T.) (2014), 357 Nfld. & P.E.I.R. 49; 1109 A.P.R. 49; 2014 NLCA 37, refd to. [para. 46].

Ellerman Lines Ltd. v. Murray, [1931] A.C. 126 (H.L.), refd to. [para. 46].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 59].

Eco-Zone Engineering Ltd. v. Grand Falls-Windsor (Town) (2000), 5 C.L.R.(3d) 55; 2000 NFCA 21, refd to. [para. 63].

R. v. Sall (1990), 81 Nfld. & P.E.I.R. 10; 255 A.P.R. 10; 54 C.C.C.(3d) 48 (Nfld. C.A.), refd to. [para. 63].

Colquhuon v. Brooks (1887), 19 Q.B.D. 400, refd to. [para. 63].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, refd to. [para. 63].

Creston Moly Corp. v. Sattva Capital Corp. (2014), 461 N.R. 335; 2014 SCC 53, refd to. [para. 76].

Statutes Noticed:

Workplace Health, Safety and Compensation Act, R.S.N.L. 1990, c. W-11, sect. 75(1) [para. 7].

Authors and Works Noticed:

Daly, Paul, Unreasonable Interpretations of Law (2014), 66 S.C.L.R.(2d) 233, pp. 260, 261 [para. 67]; 264 [para. 68]; 267 [para. 69].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 10].

Robertson, Joseph T., Judicial Deference to Administrative Tribunals, A Guide to 60 years of Supreme Court Jurisprudence (2014) 66 S.C.L.R.(2d) 1, pp. 157, 159, 162, 163 [para. 43]; 178 [para. 65].

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), pp. 186 [para. 62]; 192 [para. 62].

Counsel:

Rebecca C. Phillips, for the appellant;

Mark Murray and Michael Gillingham, for the first respondent;

Stephen Willar, for the second respondent.

This appeal was heard on September 24, 2014, before Rowe, Barry and Harrington, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the Court of Appeal was delivered on November 20, 2014, including the following opinions:

Barry, J.A. (Harrington, J.A., concurring) - see paragraphs 1 to 72;

Rowe, J.A. - see paragraphs 73 to 78.

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