Henthorne v. British Columbia Ferry Services Inc. et al., 2011 BCCA 476

• Judge: Newbury, Groberman and Garson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: September 06, 2011
• Jurisdiction: British Columbia
• Citations: 2011 BCCA 476;(2011), 313 B.C.A.C. 124 (CA)

Henthorne v. B.C. Ferry (2011), 313 B.C.A.C. 124 (CA);

    533 W.A.C. 124

MLB headnote and full text

Temp. Cite: [2011] B.C.A.C. TBEd. NO.047

In The Matter Of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241; and the Workers Compensation Act, R.S.B.C. 1996, c. 492; and Decisions of the Workers' Compensation Appeal Tribunal rendered on March 11, 2010 (Decision No. WCAT-2010-00733), and June 10, 2010 (Decision No. WCAT-2010-01612)

Colin Henthorne (appellant/petitioner) v. British Columbia Ferry Services Inc. and Workers' Compensation Appeal Tribunal (respondents/respondents)

(CA038984; 2011 BCCA 476)

Indexed As: Henthorne v. British Columbia Ferry Services Inc. et al.

British Columbia Court of Appeal

Newbury, Groberman and Garson, JJ.A.

November 24, 2011.

Summary:

On March 21, 2006, the B.C. ferry "Queen of the North" went aground and sank. Henthorne was the captain of the ferry. An internal inquiry was held by B.C. Ferry Services Inc., Henthorne's employer. Henthorne's employment was terminated. He filed a complaint with the Workers' Compensation Board under the "whistle-blower" provisions of the Workers Compensation Act (ss. 150-52), alleging his employment had been terminated because he had voiced safety concerns to the internal inquiry. A case officer found that Henthorne had demonstrated a prima facie case and that the employer had failed to discharge its burden under s. 152(3) to show that no contravention of s. 151 had taken place, and ordered reinstatement. The employer appealed to the Workers' Compensation Appeal Tribunal. The employer called two members of its "executive team", one of whom had participated with four other members in making the decision to terminate Henthorne's employment. The Tribunal allowed the appeal and found that the employer had rebutted the onus under s. 152(3). Henthorne sought judicial review.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 409, dismissed the application. The Tribunal's decision with respect to the sufficiency of evidence "cannot be said to be evidently or clearly unreasonable". Henthorne appealed.

The British Columbia Court of Appeal dismissed the appeal.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Workers' Compensation - Topic 7006 ].

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - [See Workers' Compensation - Topic 7004 ].

Practice - Topic 9459

Appeals - Factum, case on appeal or appeal book - Striking out - [See Workers' Compensation - Topic 7004 ].

Workers' Compensation - Topic 7004

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Status of the board to participate in the appeal - The Workers' Compensation Appeal Tribunal upheld the employer's decision to terminate Henthorne's employment - Henthorne appealed - The issues were said to be ones of fact or mixed fact and law - The British Columbia Court of Appeal granted Henthorne's motion to strike the Tribunal's factum - "[N]o jurisdictional error ... or error in the choice of standard of review was advanced here; nor is there an allegation of a breach of the rules of natural justice. The appeal does not involve the construction of the Workers Compensation Act or Regulations. The dispute is essentially a private one between Mr. Henthorne and his former employer, in which a private remedy is sought. The employer, a large corporation, is well represented and has made extensive and helpful submissions. The Tribunal's reasons for reversing the decision of first instance dealt at length with the issues that subsequently became the focus of the judicial review. In these circumstances, there is little that the Tribunal could add, or has in fact added, to the proper adjudication of the appeal. As against this, the importance of fairness, real and perceived, weighs more heavily. To permit both the employer and the tribunal whose decision is being reviewed to be lined up against the appellant does not seem to me to be 'just and efficient' ... particularly at a time when courts are being urged to ensure the speedy resolution of disputes." - See paragraphs 30 to 43.

Workers' Compensation - Topic 7006

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Standard of review - The appellant filed a complaint under the "whistle-blower" provisions of the Workers Compensation Act (ss. 150-52), alleging his employment had been terminated because he had voiced safety concerns - The Workers' Compensation Appeal Tribunal (WCAT) allowed the appeal and found that the employer had rebutted the onus under s. 152(3) in circumstances in which it elected to adduce evidence from two witnesses, only one of whom was one of the five who made the decision to terminate the appellant's employment - On judicial review, the chambers judge concluded that it was not patently unreasonable for the WCAT to decide that the presumption was in fact rebutted - The chambers judge considered that the issue was one of sufficiency of evidence rather than a total absence of evidence from several of the decision-makers - She found that WCAT's application of the taint principle fell within the range of reasonable interpretations - The British Columbia Court of Appeal dismissed the appeal - Newbury, J.A., characterized the issue as one of fact, and stated that "I cannot agree that the chambers judge was clearly wrong in concluding that the Tribunal's conclusions were supported by evidence and were not otherwise patently unreasonable. Similarly, if one assumes this court steps into the shoes of the reviewing court, I cannot agree that it was patently unreasonable for WCAT to draw the inferences it did" - Groberman, J.A. (Garson, J.A., concurring), disagreed with the characterization of the issue as a question of fact, and accordingly was of the view that this was not a case calling for deference to the findings of the chambers judge - "[I]t is my view that even when judicial review is concerned with alleged errors of fact by the tribunal, the issues before the reviewing court will be questions of law. ... On those issues, an appeal court owes no deference to the chambers judge" - See paragraphs 45 to 80.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - [See Workers' Compensation - Topic 7006 ].

Workers' Compensation - Topic 7082.1

Practice - Appeals to the courts - Question of fact - [See Workers' Compensation - Topic 7006 ].

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - [See Workers' Compensation - Topic 7006 ].

Workers' Compensation - Topic 7102

Practice - Evidence - Favourable inference - [See Workers' Compensation - Topic 7006 ].

Workers' Compensation - Topic 7103

Practice - Evidence - Presumptions - [See Workers' Compensation - Topic 7006 ].

Cases Noticed:

Buttar et al. v. Workers' Compensation Appeal Tribunal (B.C.) et al., [2009] B.C.T.C. Uned. 962; 2009 BCSC 1228, refd to. [para. 22].

Manz v. Sundher - see Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al.

Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al. (2009), 267 B.C.A.C. 99; 450 W.A.C. 99; 2009 BCCA 92, refd to. [para. 22].

Speckling v. Workers' Compensation Board (B.C.) et al. (2005), 209 B.C.A.C. 86; 345 W.A.C. 86; 46 B.C.L.R.(4th) 77; 2005 BCCA 80, refd to. [para. 22].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449, refd to. [para. 31].

International Association of Machinists v. Genaire Ltd. and Ontario Labour Relations Board (1958), 18 D.L.R.(2d) 588, refd to. [para. 32].

Transair Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local #3; Re Canada Labour Relations Board, [1977] 1 S.C.R. 722; 9 N.R. 181, refd to. [para. 32].

Paccar of Canada Ltd. v. Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, [1989] 2 S.C.R. 983; 102 N.R. 1, consd. [para. 33].

British Columbia Government Employees' Union v. Industrial Relations Council (B.C.) et al. (1988), 26 B.C.L.R.(2d) 145 (C.A.), refd to. [para. 33].

Children's Lawyer for Ontario v. Information and Privacy Commissioner (Ont.) - see Children's Lawyer for Ontario v. Goodis et al.

Children's Lawyer for Ontario v. Goodis et al. (2005), 196 O.A.C. 350; 75 O.R.(3d) 309 (C.A.), consd. [para. 35].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 35].

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. 35].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 36].

Pacific International Securities Inc. et al., Re (2002), 171 B.C.A.C. 86; 280 W.A.C. 86; 215 D.L.R.(4th) 58; 2002 BCCA 421, refd to. [para. 37].

Bibeault et al. v. McCaffrey, Amalgamated Food and Allied Workers, Local P-405 and N.D.G. Meat Market Ltd., [1984] 1 S.C.R. 176; 52 N.R. 241, refd to. [para. 37].

Canada (Attorney General) v. Human Rights Tribunal Panel (Can.) et al. (1994), 76 F.T.R. 1 (T.D.), refd to. [para. 37].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.) (1985), 10 O.A.C. 34; 20 D.L.R.(4th) 84 (Div. Ct.), refd to. [para. 37].

Quintette Coal Ltd. v. Assessment Appeal Board (B.C.) (1984), 54 B.C.L.R. 359 (S.C.), refd to. [para. 37].

Bekar v. Bulkley-Nechako (Regional District) (1987), 19 B.C.L.R.(2d) 256 (S.C.), refd to. [para. 37].

Barker et al. v. Hayes (2007), 235 B.C.A.C. 266; 388 W.A.C. 266; 2007 BCCA 51, refd to. [para. 37].

Timberwolf Log Trading Co. v. Commissioner, Forest Act (B.C.) et al. (2011), 301 B.C.A.C. 178; 510 W.A.C. 178; 2011 BCCA 70, refd to. [para. 37].

Lang v. Superintendent of Motor Vehicles (B.C.) et al. (2005), 212 B.C.A.C. 78; 350 W.A.C. 78; 2005 BCCA 244, refd to. [para. 38].

Global Securities Corp. v. British Columbia Securities Commission et al. (2006), 230 B.C.A.C. 236; 380 W.A.C. 236; 274 D.L.R.(4th) 523; 2006 BCCA 404, refd to. [para. 39].

Vancouver Rape Relief Society v. Nixon et al. (2005), 220 B.C.A.C. 109; 362 W.A.C. 109; 47 B.C.L.R.(4th) 203; 2005 BCCA 601; leave to appeal refused (2007), 364 N.R. 394 (S.C.C.), refd to. [para. 39].

Ellis-Don Ltd. v. Labour Relations Board (Ont.) et al., [2001] 1 S.C.R. 221; 265 N.R. 2; 140 O.A.C. 201, refd to. [para. 40].

Orange Julius Canada Ltd. et al. v. Surrey (City) et al. (1999), 126 B.C.A.C. 276; 206 W.A.C. 276; 1999 BCCA 430, refd to. [para. 42].

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, consd. [para. 45].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1, refd to. [para. 46].

Prairie Acid Rain Coalition et al. v. Canada (Minister of Fisheries and Oceans) et al. (2006), 345 N.R. 374; 265 D.L.R.(4th) 154; 2006 FCA 31, refd to. [para. 46].

Zenner v. College of Optometrists (P.E.I.), [2005] 3 S.C.R. 645; 342 N.R. 176; 2005 SCC 77, refd to. [para. 46].

Marine Research Inc. v. Canada (Attorney General), [2007] 4 F.C.R. 780; 365 N.R. 217; 2006 FCA 425, refd to. [para. 46].

Canada (Attorney General) v. Mowat, [2010] 4 F.C.R. 579; 395 N.R. 52; 2009 FCA 309, leave to appeal granted (2010), 407 N.R. 387 (S.C.C.), refd to. [para. 46].

Mugesera et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration), [2005] 2 S.C.R. 100; 335 N.R. 229; 2005 SCC 40, refd to. [para. 48].

Barrie Public Utilities et al. v. Canadian Cable Television Association et al., [2003] 1 S.C.R. 476; 304 N.R. 1; 2003 SCC 28, refd to. [para. 48].

Tesco Supermarkets Ltd. v. Nattrass, [1972] A.C. 153 (H.L.), refd to. [para. 51].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 51].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 66].

Corbiere v. Wikwemikong Tribal Police Services Board (2007), 361 N.R. 69; 2007 FCA 97, refd to. [para. 76].

Telfer v. Canada Revenue Agency (2009), 386 N.R. 212; 2009 FCA 23, refd to. [para. 76].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 78].

Statutes Noticed:

Workers Compensation Act, R.S.B.C. 1996, c. 492, sect. 150, sect. 151, sect. 152 [para. 8].

Authors and Works Noticed:

Evans, John, The Role of Appellate Courts in Administrative Law, 20 Can. J. Admin. L. & Prac. 1, pp. 5[para. 47]; 6 [para. 48].

Falzon, F., Tribunal Standing on Judicial Review (2008), 21 C.A.L.T. 21, pp. 35, 38 [para. 40].

Mullan, David J., Essentials of Canadian Law: Administrative Law (2001), p. 459 [para. 36].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), p. 56-65 [para. 52].

Counsel:

R.D.W. Dalziel and D.M. Getz, for appellant;

P. Fairweather, for the respondent, British Columbia Ferry Services Inc.;

V.A. Pylypchuk, for the respondent, Workers' Compensation Appeal Tribunal.

This appeal was heard at Vancouver, British Columbia, on September 6, 2011, before Newbury, Groberman and Garson, JJ.A., of the British Columbia Court of Appeal. On November 24, 2011, the Court of Appeal delivered the following judgment, with written reasons:

Newbury, J.A. - see paragraphs 1 to 59;

Groberman, J.A. (Garson, J.A., concurring) - see paragraphs 60 to 80.