Campbell v. Workers' Compensation Board, 2009 SKQB 275

• Judge: Goldenberg, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 03, 2009
• Jurisdiction: Saskatchewan
• Citations: 2009 SKQB 275;(2009), 335 Sask.R. 197 (QB)

Campbell v. WCB (2009), 335 Sask.R. 197 (QB)

MLB headnote and full text

Temp. Cite: [2009] Sask.R. TBEd. JL.047

In The Matter of Judicial Review pursuant to Part 52 of the Queen's Bench Rules

Logan Alexander Campbell (applicant) v. The Workers' Compensation Board (respondent)

(2008 Q.B.G. No. 1535; 2009 SKQB 275)

Indexed As: Campbell v. Workers' Compensation Board

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Goldenberg, J.

July 3, 2009.

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 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 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.

Workers' Compensation - Topic 5

General principles - Definitions - Worker defined - 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 sued various defendants for damages - The defendants, all "employers" under the Workers' Compensation Act, claimed that the Act barred the civil action, 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, (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 ruled that the Act barred a civil action - On judicial review, Campbell claimed that the Board misinterpreted the Act and its regulations in finding that he was a "worker" and that sailing instructors did not fall under an "excluded industry" - The Saskatchewan Court of Queen's Bench, applying the reasonableness standard of review, dismissed the judicial review application - Section 3(y) of the Regulations excluded persons who were "sports professionals, sports instructors, player and coaches" - The Board's decision that s. 3(y) excluded "those whose primary source of income is derived from the occupation of playing, instructing or coaching sports, that is professionals" and that a sailing instructor did not fall under s. 3(y) was both logical and reasonable - The Board's decision that Campbell was a "worker" was reasonable - The Board had exclusive jurisdiction to determine who was a "worker" - Contrary to Campbell's submissions, the Board considered the "contract of service" versus "contract for service" question in ruling that the contract was a master/servant relationship at an hourly wage - The Board's decision that the civil action was barred by the Act was reasonable - See paragraphs 85 to 130.

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 Saskatchewan Court of Queen's Bench held that the reasonableness standard of review applied to the Board's alleged procedural error - Whether to hold an oral hearing was discretionary, subject to deference - The Board made a discretionary decision that it had sufficient information in the form of the pleadings and submissions to render a decision without an oral hearing - That decision was reasonable, as it fell within the range of acceptable outcomes - The Board's policy of being prepared to hold a hearing where requested conferred discretionary authority to hold an oral hearing - It did not, and could not, bind the Board to hold a hearing - The Board found that an initial letter from a Board assistant, giving rise to a reasonable expectation that a hearing would be held, was not a written undertaking by the Board to hold a hearing - That finding was reasonable, as was the finding that procedural fairness did not require an oral hearing - The court noted that Campbell complained of the lack of an oral hearing only after receiving an unfavourable decision on the merits - The Board's decision was reasonable - See paragraphs 18 to 84.

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 7006

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Standard of review - [See Workers' Compensation - Topic 5 and 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:

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 19].

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. 19].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 20].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 21].

VIA Rail Canada Inc. v. Canadian Transportation Agency et al., [2007] 1 S.C.R. 650; 360 N.R. 1; 2007 SCC 15, refd to. [para. 22].

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. 24].

Telus Communications Inc. v. Telecommunications Workers Union (2005), 338 N.R. 129; 257 D.L.R.(4th) 19; 2005 FCA 262, refd to. [para. 25].

TD Canada Trust v. United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (2007), 370 N.R. 267; 2007 FCA 285, refd to. [para. 26].

Laporte v. Regina Police Service et al. (No. 1) (1993), 111 Sask.R. 251 (Q.B.), refd to. [para. 28].

University of Saskatchewan v. Workers' Compensation Board (Sask.) et al. (2009), 320 Sask.R. 240; 444 W.A.C. 240; 2009 SKCA 17, refd to. [para. 30].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 304 D.L.R.(4th) 1; 2009 SCC 12, refd to. [para. 31].

United Brotherhood of Carpenters and Joiners of America, Local 1985 et al. v. Graham Construction and Engineering Ltd. et al. (2008), 311 Sask.R. 1; 428 W.A.C. 1; 2008 SKCA 67, refd to. [para. 33].

Casino Nova Scotia v. Labour Relations Board (N.S.) et al. (2009), 273 N.S.R.(2d) 370; 872 A.P.R. 370; 2009 NSCA 4, refd to. [para. 34].

Canada Post Corp. v. Workers' Compensation Board (Sask.) et al. (1998), 174 Sask.R. 285 (Q.B.), dist. [para. 42].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 21 O.R.(3d) 104 (C.A.), refd to. [para. 44].

Thamotharem v. Canada (Minister of Citizenship and Immigration), [2008] 1 F.C.R. 385; 366 N.R. 301; 2007 FCA 198, refd to. [para. 45].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 2003 SCC 29, refd to. [para. 48].

Board of Education of Lakeview School Division No. 142 v. Municipal Employees' Pension Commission et al. (2008), 307 Sask.R. 147; 417 W.A.C. 147; 75 Admin. L.R.(4th) 127; 2008 SKCA 10, refd to. [para. 59].

MacQueen v. Assessment and Planning Appeal Board (N.B.) et al. (2005), 284 N.B.R.(2d) 391; 742 A.P.R. 391; 11 M.P.L.R.(4th) 264; 2005 NBQB 154, refd to. [para. 60].

Labour Relations Board (Que.) v. Canadian Ingersoll Rand Co., [1968] S.C.R. 695, refd to. [para. 68].

Graham v. Workers' Compensation Board (N.W.T. and Nunavut) et al., [2007] Northwest Terr. Cases (S.C.) 54; 71 Admin. L.R.(4th) 197; 2007 NWTSC 54, affd. (2008), 437 A.R. 181; 433 W.A.C. 181; 79 Admin. L.R.(4th) 155; 2008 NWTCA 7, refd to. [para. 72].

Statutes Noticed:

Workers' Compensation Act Regulations (Sask.), Workers' Compensation Exclusion Regulations, Reg. 2, sect. 3(y) [para. 88].

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

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (2008) (Looseleaf Update), vol. 2, pp. 7-44 to 7-45, para. 7:2431 [para. 49]; 10-4, para. 10:1100 [para. 68]; 10-8 to 10-10, para. 10:1211 [para. 71].

Counsel:

James H. Gillis, for Logan Alexander Campbell, applicant;

Wayne P. Dale, for the Workers' Compensation Board, respondent;

Barry J. Hornsberger, Q.C., for the Government of Saskatchewan, interested party;

Harry R. Kloppenburg, Q.C., for Saskatchewan Sailing Clubs Association and Sask Sport Inc., interested parties (watching brief);

Shaunt Parthev, Q.C., for St. Paul's Roman Catholic Separate School District No. 20, interested party (watching brief);

Michael J. Morris, for the R.M. of Dundurn No. 314, interested party (watching brief);

Jennifer L. Koschinsky, for Saskatchewan Power Corp., interested party;

Angela D. Giroux, for Saskatoon Youth Development Complex Inc., interested party (watching brief).

This application was heard before Goldenberg, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on July 3, 2009.