Campbell v. Workers' Compensation Board (Sask.), (2012) 393 Sask.R. 246 (CA)

• Judge: Klebuc, C.J.S., Lane and Smith, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 22, 2012
• Jurisdiction: Saskatchewan
• Citations: (2012), 393 Sask.R. 246 (CA);2012 SKCA 56

Campbell v. WCB (2012), 393 Sask.R. 246 (CA);

    546 W.A.C. 246

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MY.072

Logan Alexander Campbell (appellant) v. The Workers' Compensation Board, Government of Saskatchewan, Saskatchewan Sailing Clubs Association, Sask Sport Inc., R.M. of Dundurn No. 314, Saskatchewan Power Corporation and Saskatoon Youth Development Complex Inc. (respondents)

(1823; 2012 SKCA 56)

Indexed As: Campbell v. Workers' Compensation Board (Sask.)

Saskatchewan Court of Appeal

Klebuc, C.J.S., Lane and Smith, JJ.A.

May 22, 2012.

Summary:

Campbell worked as a sailing instructor for the Saskatchewan Sailing Clubs Association. While loading a sailboat onto a trailer, the mast struck a power line. Electrocution burns led to amputation of Campbell's right hand. Campbell commenced an action for damages against various defendants (Sask Power, province, municipality). The defendants claimed that the civil action was barred by the Workers' Compensation Act, because the injury resulted from a work- related accident falling within the Act's compensation scheme. Campbell applied to the Workers' Compensation Board under s. 168 of the Act for a ruling. He claimed that his civil action was not barred because, inter alia, (1) sailing instructors fell within an "excluded industry" under the Workers' Compensation Exclusion Regulations and (2) the nature of his contract with the Association did not make him a "worker" as defined in the Act. The Board, based on the pleadings and written submissions, ruled that the Act barred Campbell's civil action. Campbell sought judicial review, submitting that the Board (1) erred procedurally by not holding a viva voce hearing and (2) misinterpreted the Act and its regulations in finding that he was a "worker" to which the Act applied.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2009), 335 Sask.R. 197, dismissed the application. The standard of review on both issues was reasonableness. The Board's discretionary decision to resolve the issue based on the written material without an oral hearing was not only reasonable, but correct. The Board's decision that Campbell was a "worker" under the Act and that sailing instructors did not fall under an "excluded industry" were both reasonable. Accordingly, the civil action was barred by the Act. Campbell appealed.

The Saskatchewan Court of Appeal allowed the appeal. Section 3(y) of the Exclusion Regulations excluded sailing instructors from being "workers" under the Act. The Board erred in finding Campbell's action barred by s. 167.

Workers' Compensation - Topic 5

General principles - Definitions - Worker defined - Campbell, while working as a sailing instructor for the Saskatchewan Sailing Clubs Association, suffered electrocution burns in a workplace accident - His right hand had to be amputated - The defendants, all "employers" under the Workers' Compensation Act, claimed that the Act barred Campbell's civil action against them because the injury resulted from a work-related accident - Campbell applied to the Workers' Compensation Board under s. 168 of the Act for a ruling that his civil action was not barred because, inter alia, sailing instructors fell within an "excluded industry" under the s. 3 of the Workers' Compensation Exclusion Regulations - Section 3(y) excluded "sports professionals, sports instructors, players and coaches" - The Board, applying its own written policy interpretation of s. 3(y), ruled that only "sports instructors, players and coaches" of professional sports organizations were excluded - The trial judge, applying the reasonableness standard of review, dismissed Campbell's judicial review application - The Saskatchewan Court of Appeal allowed Campbell's appeal, finding that "if the Board's policy statement was intended as an interpretation of s. 3(y) of the Exclusion Regulations it is not an interpretation that can be reasonably supported by the wording of the regulation and the principles of statutory interpretation. To limit the exclusion of 'sports instructors and coaches' provided by the regulation to those sports instructors and coaches employed by [a professional sports] organization is a significant departure from the plain grammatical meaning of the exclusion as enacted. In so limiting the interpretation of the exclusion, the Board has in effect substituted its own policy for that of the Lieutenant Governor in Council" - See paragraphs 40 to 66.

Workers' Compensation - Topic 7.1

General principles - Definitions - Excluded industry defined - [See Workers' Compensation - Topic 5 ].

Workers' Compensation - Topic 106

General principles - Effect of statute on other causes of action - Action by employer or employee against employer covered by Act - [See Workers' Compensation - Topic 5 ].

Workers' Compensation - Topic 1104

Boards - Inquiries - Oral hearing - When required - Campbell, while working as a sailing instructor for the Saskatchewan Sailing Clubs Association, suffered electrocution burns that required amputation of his right hand - Campbell commenced a civil action for damages, but applied to the Worker's Compensation Board under s. 168 of the Workers' Compensation Act for a ruling as to whether his civil action was barred by the Act - At issue was whether sailing instructors fell within an "excluded industry" under the Workers' Compensation Exclusion Regulations and whether he was a "worker" and the Association was an "employer" covered by the Act - The Board considered Campbell's request for an oral hearing, but ruled that a decision based on a review of the documentation and submissions was sufficient - The Board subsequently ruled that Campbell's civil action was barred - Campbell claimed that the Board erred in refusing to hold a viva voce hearing, as Board Policy provided for an oral hearing, the Board undertook to Campbell's counsel to hold an oral hearing and denying an oral hearing breached the principles of fundamental justice - The trial judge held that the Board's discretionary decision not to hold an oral hearing was not unreasonable - The Saskatchewan Court of Appeal, although finding it unnecessary to decide the issue, opined that Campbell was denied procedural fairness - The court noted that the Board undertook to hold an oral hearing and the parties made written submissions on the understanding that they could expand on the evidence and respond to issues or concerns raised by the Board at the hearing - Rather than affording Campbell that opportunity, the Board drew its own conclusions based on inconsistent, inconclusive and contested evidence - The court stated that "it was unfair for the Board to make a finding contrary to these submissions without giving [Campbell] the opportunity to call evidence on the point, particularly where there was no persuasive evidence to the contrary before the Board and all parties expected that this opportunity would be afforded" - See paragraphs 67 to 89.

Workers' Compensation - Topic 6943

Practice - Hearing - Procedural fairness - [See Workers' Compensation - Topic 1104 ].

Workers' Compensation - Topic 6946

Practice - Hearing - Right to be heard - [See Workers' Compensation - Topic 1104 ].

Workers' Compensation - Topic 7018

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Procedure - Oral hearing - [ See Workers' Compensation - Topic 1104 ].

Cases Noticed:

United Food and Commercial Workers, Local 1400 v. Saskatoon Credit Union Ltd. et al., [2010] 2 W.W.R. 105; 331 Sask.R. 230; 460 W.A.C. 230; 2009 SKCA 87, refd to. [para. 6].

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. 7].

University of Saskatchewan v. Workers' Compensation Board (Sask.) et al. (2009), 320 Sask.R. 240; 444 W.A.C. 240; 305 D.L.R.(4th) 204; 2009 SKCA 17, refd to. [para. 7].

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. 7].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 59].

R. v. Goforth (E.R.) (2005), 257 Sask.R. 123; 342 W.A.C. 123; 193 C.C.C.(3d) 354; 2005 SKCA 12, refd to. [para. 59].

R. v. McIntosh (B.B.), [1995] 1 S.C.R. 686; 178 N.R. 161; 79 O.A.C. 81, refd to. [para. 60].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 71].

Statutes Noticed:

Workers' Compensation Act, S.S. 1979, c. W-17.1, sect. 2(f), sect. 2(j), sect. 2(t) [para. 12]; sect. 11 [para. 15]; sect. 19, sect. 22 [para. 13]; sect. 44, sect. 167 [para. 10]; sect. 181 [para. 15].

Workers' Compensation Act Exclusion Regulations - see Workers' Compensation Act Regulations (Sask.).

Workers' Compensation Act Regulations (Sask.), Workers' Compensation Act Exclusion Regulations, Reg. 2, sect. 3 [para. 16].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (2nd Ed. 1983), generally [para. 59].

Counsel:

James Gillis, for the appellant;

Leonard Andrychuk, Q.C., for the Workers' Compensation Board;

Charita Ohashi, for the Government of Saskatchewan;

Lindsay Wacholtz, for Saskatoon Youth Development;

Michael Morris, for the R.M. of Dundurn;

Henry R. Kloppenburg, Q.C., for Sask Sport Inc.

This appeal was heard on February 14, 2012, before Klebuc, C.J.S., Lane and Smith, JJ.A., of the Saskatchewan Court of Appeal.

On May 22, 2012, Smith, J.A., delivered the following judgment for the Court of Appeal.