Nabors Canada LP v. Workers' Compensation Board Appeals Commission (Alta.) et al., (2006) 397 A.R. 57 (CA)

• Judge: Conrad, McFadyen and Berger, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: June 07, 2006
• Citations: (2006), 397 A.R. 57 (CA);2006 ABCA 371

Nabors Can. LP v. WCB (2006), 397 A.R. 57 (CA);

      384 W.A.C. 57

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. DE.048

Nabors Canada LP (appellant/applicant) v. Appeals Commission, the Workers' Compensation Board and Lorrie Sitler (respondents/respondents)

Nabors Canada LP and The Workers' Compensation Board (appellants/applicant) v. Appeals Commission and Lorrie Sitler (respondents/respondents)

(0503-0034-AC; 0503-0115-AC; 2006 ABCA 371)

Indexed As: Nabors Canada LP v. Workers' Compensation Board Appeals Commission (Alta.) et al.

Alberta Court of Appeal

Conrad, McFadyen and Berger, JJ.A.

December 4, 2006.

Summary:

A worker was killed in a motor vehicle accident as he was driving home from work. The Workers' Compensation Board (WCB) and the Claims Services Review Committee denied the worker's widow's application for survivor benefits, finding that the worker was not in the course of employment when he was killed because he was driving his personal vehicle solely for the purpose of returning home. The Appeals Commission allowed the widow's appeal, finding that the worker was in the course of employment as he had performed a work-related errand on the way home. The employer sought judicial review.

The Alberta Court of Queen's Bench, in a decision reported at 375 A.R. 9, dismissed the application. The court awarded solicitor-client costs to the worker's widow to be shared equally by the WCB and the employer. The employer appealed the entitlement decision and the employer and the WCB appealed the costs decision. The worker's widow challenged the employer's status as a "person with a direct interest" to bring the appeal.

The Alberta Court of Appeal held that the employer had standing to bring the appeal and dismissed both appeals.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - [See Workers' Compensation - Topic 7086.1 ].

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See Workers' Compensation - Topic 7086.1 ].

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Workers' Compensation - Topic 7086.1 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - A worker was killed on his way home from work - The Workers' Compensation Board (WCB) denied his widow's application for benefits - The Appeals Commission allowed the widow's appeal - The employer sought judicial review - The application was dismissed - The widow applied for solicitor-client costs to be shared by the WCB and the employer - A chambers judge allowed the application - Inconsistent positions taken by the WCB regarding the standard of review in cases litigated within a short period of time constituted abusive conduct - The cost of exploring the standard of review was not to be borne by workers - The employer's conduct was not inappropriate - However, if the widow did not receive full indemnification, she would be denied one of the workers' compensation system's intended benefits, that of avoidance of litigation costs - The employer and the WCB appealed - The Alberta Court of Appeal dismissed the appeal - The court declined to characterize the WCB's conduct as abusive - Rather, it may have been an outcome of decisions which appeared to require a fresh pragmatic and functional analysis of the standard of review in every case - However, the remaining reasoning of the chambers judge was unassailable - See paragraphs 31 to 36.

Workers' Compensation - Topic 5566

Compensation - Persons entitled - Employees - Acting in the course of employment - On his way home from work, Sitler dropped Benoit, a co-worker, off in Edmonton - Benoit was carrying materials for their employer, Nabors - After dropping Benoit off, Sitler was killed in an accident - The Workers' Compensation Board (WCB) and the Claims Services Review Committee denied Sitler's widow's application for benefits on the basis that Sitler was not in the course of employment when he was killed - The Appeals Commission allowed the widow's appeal - Sitler was in the course of employment as he had performed a work-related errand - Nabors sought judicial review - A trial judge dismissed the application, finding that the Commission's decision was a reasonable interpretation of the policy that work-related travel began with Nabors' material being transported in Sitler's car and continued throughout the trip - Nabors appealed - The Alberta Court of Appeal dismissed the appeal - The Commission's decision was not patently unreasonable - Benoit was engaged in a work-related errand and Sitler's vehicle was indispensable to the errand's completion - Whether or not Sitler knew that Benoit was transporting Nabors' material was inconsequential - That which governed was the employer's knowledge, not the employee's - Further, Sitler was diverted from a direct and less time-consuming route by Benoit's work-related task - See paragraphs 19 to 30.

Workers' Compensation - Topic 7003

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Persons entitled to appeal - A worker was killed on his way home from work - The Workers' Compensation Board (WCB) denied his widow's application for benefits - The Appeals Commission allowed the widow's appeal - The employer sought judicial review - The application was dismissed - The employer appealed - The widow challenged the employer's standing to bring the appeal - The Alberta Court of Appeal held that the employer had standing - The result of the Commission's decision was that the employer's WCB premium rose approximately 14% - The financial impact of the decision on the employer was apparent - As such, the employer was a person with a direct interest in the Commission's decision within s. 13.4(1) of the Workers' Compensation Act - See paragraphs 17 to 18.

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - A worker was killed on his way home from work - The Workers' Compensation Board denied the widow's application for benefits - The Appeals Commission allowed the widow's appeal - The employer sought judicial review - The trial judge dismissed the application, finding that the standard of review was reasonableness simpliciter - The Alberta Court of Appeal dismissed the employer's appeal - Berger, J.A., indicated that the standard of review was patent unreasonableness, as stated by the court in two previous decisions - While there was no one correct standard of review for all decisions of a specific commission or all questions within a general category, questions within a clearly specified category, such as entitlement to compensation, did not require a fresh functional and pragmatic analysis if the reviewing court concluded that the case at bar engaged the same question - Such an approach promoted certainty and efficiency - See paragraphs 10 to 16 - Conrad, J.A., concurring in the result, agreed with McFadyen, J.A., dissenting, that the standard of review was reasonableness and that a fresh functional and pragmatic analysis was required for each disputed issue - See paragraphs 48 to 51 and 77 to 94.

Workers' Compensation - Topic 7090

Practice - Appeals to the courts - By an employer - Whether a party affected - [See Workers' Compensation - Topic 7003 ].

Workers' Compensation - Topic 7098

Practice - Appeals to the courts - Costs - [See Practice - Topic 7454 ].

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - [See Workers' Compensation - Topic 7086.1 ].

Cases Noticed:

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [paras. 1, 48, 83].

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. [paras. 1, 48, 81].

Dr. Q. v. College of Physicians and Surgeons (B.C.) - see Dr. Q., Re.

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2005), 371 A.R. 62; 354 W.A.C. 62; 2005 ABCA 235, refd to. [paras. 10, 87].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, consd. [paras. 10, 48, 77].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 10].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [paras. 11, 48, 82].

White v. Workers' Compensation Board Appeals Commission (Alta.) (2006), 400 A.R. 183; 2006 ABQB 359, refd to. [para. 14].

Pincher Creek (Town) v. Municipal Government Board (Alta.) et al. (2006), 403 A.R. 56; 2006 ABQB 513, refd to. [para. 14].

Evaskow v. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers et al. (1969), 71 W.W.R.(N.S.) 565 (Man. C.A.), refd to. [para. 32].

Haggart Construction Ltd. et al. v. Canadian Imperial Bank of Commerce et al. (1998), 213 A.R. 241 (Q.B.), affd. (1999), 237 A.R. 116; 197 W.A.C. 116 (C.A.), refd to. [para. 32].

Moore v. Edmonton (City) et al. (1997), 202 A.R. 81 (Q.B.), refd to. [para. 32].

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. 32].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Alliance Pipeline Ltd. v. Alberta (Minister of Municipal Affairs) et al. (2006), 376 A.R. 44; 360 W.A.C. 44; 2006 ABCA 9, refd to. [para. 47].

Foster v. Transportation and Safety Board (Alta.) (2006), 397 A.R. 82; 384 W.A.C. 82; 2006 ABCA 282, refd to. [paras. 49, 78].

United Nurses of Alberta, Local 115 v. Calgary Health Authority (Foothills Medical Centre) (2004), 339 A.R. 265; 312 W.A.C. 265; 2004 ABCA 7, refd to. [para. 81].

Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al. (2002), 312 A.R. 40; 281 W.A.C. 40; 2002 ABCA 199, refd to. [para. 81].

Alberta (Minister of Municipal Affairs) v. Telus Communications Inc. - see Alberta (Minister of Municipal Affairs) v. Municipal Government Board (Alta.) et al.

Canadian Union of Public Employees Local 784 v. Board of Education of Edmonton School District No. 7 (2005), 363 A.R. 123; 343 W.A.C. 123; 2005 ABCA 74, refd to. [para. 81].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 89].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 100].

Counsel:

M.J. Bailey, for the appellant, Nabors Canada LP;

C.B.R. Craig, for the Workers' Compensation Board;

S.R. Hermiston, for the respondent, Appeals Commission;

D.P. Jones, Q.C., for the respondent, Lorrie Sitler.

These appeals were heard on June 7, 2006, by Conrad, McFadyen and Berger, JJ.A., of the Alberta Court of Appeal. The reasons for judgment of the Court of Appeal were filed on December 4, 2006, and the following opinions were included:

Berger, J.A. - see paragraphs 1 to 37;

Conrad, J.A., concurring - see paragraphs 38 to 64;

McFadyen, J.A., dissenting - see paragraphs 65 to 108.