Digest: Janvier v Saskatchewan (Workers' Compensation Board), 2018 SKQB 175

• Date: June 18, 2018

Reported as: 2018 SKQB 175

Docket Number: QB17565 , QBG 2382/16 JCR

Court: Court of Queen's Bench

Date: 2018-06-18

Judges:

• Barrington-Foote

Subjects:

• Administrative Law � Judicial Review � Workers� Compensation Board

Digest: The applicants, workers who were injured in an explosion at the Co-op Refinery in 2011 and certain of their dependants, commenced an action against the respondent employers claiming general, aggravated and punitive damages resulting from the incident. In response, one respondent applied to the Workers� Compensation Board pursuant to s. 169 of The Workers� Compensation Act for a ruling that the claims were barred by s. 4, s. 168 and s. 181 of the Act, the provisions related to civil immunity. The board found that the action was barred by s. 43. The applicant then applied for judicial review of the decision. The board answered affirmatively the four required questions set out in Pasiechnyk to determine whether the statutory bar applied to an action. The applicants also argued that regardless of that finding, the board should have gone on to consider whether in cases of bad faith conduct by employers or where the system incentivized employers to sacrifice personal safety for profits, the actual purpose of the Act to protect workers would be subverted. A negative incentive made workplaces dangerous and thereby endangered workers� physical and psychological security, contrary to s. 7 of the Charter. Further, if the board found the Act barred civil actions even in cases of bad faith, it would violate s. 96 of the Constitution Act by defeating the plaintiffs� constitutional guarantee of access to justice. The Act did not supplant the inherent jurisdiction of the court and constitutional questions should be decided by them. The board decided that it had the jurisdiction to determine the constitutional questions raised by the application and that the barring provisions of the Act did not violate s. 97 of the Constitution Act because its authority to determine question of law arising under the Act did not make it a s. 96 court. It also rejected the argument that s. 43 of the Act infringed s. 96 by blocking access to the Court of Queen�s Bench as the barring provision did not deny access to justice because the civil remedy had been replaced by different remedies afforded to workers as part of the historical trade-off embodied by the legislation. The board disposed of the s. 7 Charter claim by finding that the actual purpose of the Act was to provide guaranteed benefits to workers suffering from workplace injuries and to provide protection from civil action for employers in industries covered by the Act within a structure that ensured the costs of the scheme were fully funded through employer-paid premiums. The civil immunity provisions were an essential element in achieving the purpose of the Act. The civil immunity provisions barred all claims by an injured worker without exception, otherwise the entire scheme would be undermined. Further, the applicants had not proven a sufficient causal connection between the civil immunity provisions and deprivation of their security of the person. After the hearing, the board sought submissions from the Attorney General of Saskatchewan (AG). The applicants argued that notice to the AG under The Constitutional Questions Act, 2012 (CQA) was not required because it was relevant only in constitutional challenges raised in a court and the board was not a court. The board proceeded with the notice and gave all the parties the opportunity to file additional written submissions. Despite another objection by the applicants that it had not given the proper notice, the board took the position that it had jurisdiction to determine its own procedure. When the AG�s reply supported the constitutional validity of the civil immunity provisions, the parties were invited to respond but the applicant declined the invitation. The applicants� position was that consulting the AG after the hearing raised a reasonable apprehension of bias or constituted a denial of natural justice....