Pasiechnyk et al. v. Procrane Inc. et al., (1997) 216 N.R. 1 (SCC)

• Judge: McLachlin and Major, JJ.
• Court: Supreme Court (Canada)
• Case Date: August 28, 1997
• Jurisdiction: Canada (Federal)
• Citations: (1997), 216 N.R. 1 (SCC);[1997] 2 SCR 890;158 Sask R 81;216 NR 1;[1997] SCJ No 74 (QL);37 CCLT (2d) 1;[1997] ACS no 74;1997 CanLII 316 (SCC);JE 97-1695;50 Admin LR (2d) 1;30 CCEL (2d) 149;149 DLR (4th) 577;[1997] CarswellSask 401;153 WAC 81;[1997] 8 WWR 517;73 ACWS (3d) 560

Pasiechnyk v. Procrane (1997), 216 N.R. 1 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1997] N.R. TBEd. AU.011

The Workers' Compensation Board and the Government of Saskatchewan (appellants/respondents) v. Elaine Pasiechnyk, Rhonda McFarlane, Ronald MacMillan, Gordon Thompson, Orval Shevshenko, Clifford Sovdi, Aaron Hill and Larry Marcyniuk (respondents/applicants) and Pro-Crane Inc., Saskatchewan Power Corporation and the Attorney General for Saskatchewan (respondents/interveners) and The Workers' Compensation Board of Alberta, the Westray Families, and Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs and Doreen Vodnoski (interveners)

(24913)

Indexed As: Pasiechnyk et al. v. Procrane Inc. et al.

Supreme Court of Canada

Lamer, C.J.C., La Forest,

L'Heureux-Dubé, Sopinka, Gonthier,

McLachlin and Major, JJ.

August 28, 1997.

Summary:

A crane at a construction site fell over killing two workers and injuring several others. The injured workers and widows of the deceased workers commenced actions for damages against the owner of the site (Sask­Power), the owner and operator of the crane (Procrane) and the Government of Saskatchewan as the safety regulator of the site. The defendants applied to the Workers' Compensation Board for a deter­mination of whether the actions were barred by the Workers' Compensation Act and an order staying the actions. The plaintiffs applied for an order of prohibition to prevent the Board from hear­ing the appli­cation on the ground that it was without jurisdiction to make the order requested.

The Saskatchewan Court of Queen's Bench, in a decision reported at 94 Sask.R. 288, dismissed the application. The plaintiffs appealed.

The Saskatchewan Court of Appeal, in a decision reported at 97 Sask.R. 286; 12 W.A.C. 286, dismissed the appeal. The Workers' Compensation Board subsequently conducted an inquiry and determined that the actions were barred by the Act. The plain­tiffs sought judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at 115 Sask.R. 111, dismissed the application. The plaintiffs appealed.

The Saskatchewan Court of Appeal, in a decision reported at 131 Sask.R. 275; 95 W.A.C. 275, dismissed the appeals with respect to the actions against SaskPower and Procrane. The court, Wakeling, J.A., dis­senting on this point, allowed the appeal respecting the action against the Government insofar as the claim was based on the Gov­ernment's status as a regulator. The action against the Gov­ernment in its capacity as regulator was not barred by the Act and could con­tinue. The Workers' Compensation Board and the Government of Saskatchewan appealed. The appeal involved only the decision with respect to the action against the government.

The Supreme Court of Canada, L'Heur­eux-Dubé, J., dissenting, allowed the appeal. The action against the Government was barred by the Act.

Administrative Law - Topic 1417

Finality - Privative clauses - Scope of - The Supreme Court of Canada stated that "[a] 'full' or 'true' privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded ... Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference" - See para­graph 17.

Administrative Law - Topic 1417

Finality - Privative clauses - Scope of - The Supreme Court of Canada stated that "The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In apply­ing the test, a functional and pragmatic approach is to be taken ... Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature" - See paragraph 18.

Administrative Law - Topic 9103

Boards and tribunals - Judicial review - Scope of review - [See third Workers' Compensation - Topic 106 ].

Workers' Compensation - Topic 7

Industry defined - [See second Workers' Compensation - Topic 106 ].

Workers' Compensation - Topic 106

Effect of statute on other causes of action - Action by employee against employer covered by Act - An accident at a con­struction site killed two workers and injured others - An action for damages was brought against the Govern­ment of Saskatchewan as regulator of the site, alleging that it failed to meet its duties under the Occupational Health and Safety Act - The Workers' Compensation Board ruled that the action was barred by the Workers' Compensa­tion Act - The Saskatchewan Court of Appeal held that the Board erred in failing to find that the Government was acting in its capacity as regulator and in finding that the action was barred - The Supreme Court of Canada allowed an appeal, holding that the Board's decision was not patently unreasonable - The "dual capacity" theory, which divided the role of government in accordance with its public and private duties, did not apply - See paragraphs 48 to 49.

Workers' Compensation - Topic 106

Effect of statute on other causes of action - Action by employee against employer covered by Act - An accident at a con­struction site killed two workers and injured others - An action for damages was brought against the Govern­ment of Saskatchewan in its capacity as regulator of the site, alleging that it failed to meet its duties under the Occupational Health and Safety Act - The Workers' Compen­sation Board ruled that the action was barred by the Workers' Compensa­tion Act - The Supreme Court of Canada held that the Board's decision was not patently unreasonable - The court stated that although the government may not be an "industry" in the ordinary sense, when interpreted in the context of the workers' compensation scheme established under the Workers' Compensation Act, it must be understood to be an industry - See para­graph 46.

Workers' Compensation - Topic 106

Effect of statute on other causes of action - Action by employee against employer covered by Act - An accident at a con­struction site killed two workers and injured others - An action for damages was brought against the Govern­ment of Saskatchewan in its capacity as regulator of the site, alleging that it failed to meet its duties under the Occupational Health and Safety Act - The Workers' Compen­sation Board ruled that the action was barred by the Workers' Compensa­tion Act - The Supreme Court of Canada held that the issue of whether the proposed action was barred by the Act was within the Board's exclusive jurisdiction and was committed to the Board for final decision and was not reviewable unless it was patently unreasonable.

Workers' Compensation - Topic 1066

Boards - Jurisdiction - Preliminary mat­ters - [See third Workers' Compensation - Topic 106 ].

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - [See third Workers' Compensa­tion - Topic 106 ].

Cases Noticed:

Syndicat national des employés de la Commission scolaire régionale de l'Out­aouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244; 35 Admin. L.R. 153, refd to. [para. 16].

Union des employés de services, Local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Bibeault - see Syndicat national des em­ployés de la Commission scolaire rég­ionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General) and Cofsky and Alberta (Attor­ney General), [1981] 3 S.C.R. 220; 58 N.R. 541; 127 D.L.R.(3d) 1, refd to. [para. 16].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 17].

Pezim v. British Columbia Securities Commission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, refd to. [para. 17].

Dayco (Canada) Ltd. v. National Automo­bile, Aerospace and Agricultural Imple­ment Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, refd to. [para. 17].

National Corn Growers Association et al. v. Canadian Import Tribunal, [1990] 2 S.C.R. 1324; 114 N.R. 81; 74 D.L.R.(4th) 449, refd to. [para. 17].

Canada (Procureur général) v. Alliance de la Fonction publique du Canada, [1991] 1 S.C.R. 614; 123 N.R. 161; 80 D.L.R.(4th) 520, refd to. [para. 18].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.) (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501 (Nfld. C.A.), refd to. [para. 26].

Medwid v. Ontario (Minister of Labour) (1988), 48 D.L.R.(4th) 272 (Ont. H.C.), refd to. [para. 27].

Costanza v. Dominion Canners Ltd., [1923] S.C.R. 46, refd to. [para. 28].

Peter v. Yorkshire Estate Co., [1926] 2 W.W.R. 545 (B.C.P.C.), refd to. [para. 30].

Alcyon Shipping Co. v. O'Krane, [1961] S.C.R. 299, refd to. [para. 30].

Farrell v. Workmen's Compensation Board (B.C.), [1962] S.C.R. 48, refd to. [para. 30].

Mack Trucks Manufacturing Co. of Canada v. Forget, [1974] S.C.R. 788, refd to. [para. 30].

Crowsnest Air Ltd. et al. v. Workers' Compensation Board (Sask.) and Stolar (1995), 128 Sask.R. 144; 85 W.A.C. 144 (C.A.), refd to. [para. 30].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 49].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; [1990] 1 W.W.R. 385; 64 D.L.R.(4th) 689; 41 B.C.L.R.(2d) 350, refd to. [para. 49].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 56].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1; [1984] 5 W.W.R. 1; 10 D.L.R.(4th) 641; 29 C.C.L.T. 97; 8 C.L.R. 1, refd to. [para. 67].

Statutes Noticed:

Workers' Compensation Act, S.S. 1979, c. W-17.1, sect. 2(f)(ii), sect. 2(g), sect. 2(j), sect. 2(k), sect. 2(t), sect. 3(1), sect. 22(1)(b), sect. 22(1)(h), sect. 22(1)(i), sect. 22(2), sect. 28, sect. 44, sect. 167, sect. 168, sect. 180 [para. 5].

Counsel:

Robert G. Richards, for the appellant, the Workers' Compensation Board;

Darryl Brown, for the appellant, the Gov­ernment of Saskatchewan;

E.F. Anthony Merchant, Q.C., and Kevin A. Clarke, for the respondents, Elaine Pasiechnyk, Rhonda McFarlane, Ronald MacMillan, Gordon Thompson, Orval Shevshenko, Clifford Sovdi, Aaron Hill and Larry Marcyniuk;

Written submission only by Thomson Irvine, for the respondent, the Attorney General for Saskatchewan;

William P. Ostapek, for the intervener, the Workers' Compensation Board of Alberta;

Raymond F. Wagner, for the interveners, the Westray Families;

J. Philip Warner, Q.C., for the interveners, Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs and Doreen Vodnoski.

Solicitors of Record:

MacPherson, Leslie & Tyerman, Regina, Saskatchewan, for the appellant, the Workers' Compensation Board;

The Attorney General for Saskatchewan, Regina, Saskatchewan, for the appellant, the Government of Saskatchewan and the Attorney General;

Merchant Law Group, Regina, Saskatchewan, for the respondents, Elaine Pasiechnyk, Rhonda McFarlane, Ronald MacMillan, Gordon Thompson, Orval Shevshenko, Clifford Sovdi, Aaron Hill and Larry Marcyniuk;

Hleck, Kanuka, Thuringer, Regina, Saskatchewan, for the respondent, Pro-Crane Inc.;

Rendek, McCrank, Regina, Saskatchewan, for the respondent, Saskatchewan Power Corp.;

Workers' Compensation Board of Alberta, Edmonton, Alberta, for the intervener, the Workers' Compensation Board of Alberta;

Wagner & Associates Inc., Halifax, Nova Scotia, for the interveners, the Westray Families;

Bishop & McKenzie, Edmonton, Alberta, for the interveners, Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs and Doreen Vodnoski.

This appeal was heard on April 30, 1997, before Lamer, C.J.C., La Forest, L'Heureux-Dubé, Sopinka, Gonthier, McLachlin and Major, JJ., of the Supreme Court of Canada.

The judgment of the court was delivered in both official languages on August 28, 1997, and the following opinions were filed:

Sopinka, J. (Lamer, C.J.C., La Forest, Gonthier and Major, JJ., concurring) - see paragraphs 1 to 52;

McLachlin, J. - see paragraphs 53 to 57;

L'Heureux-Dubé, J., dissenting - see paragraphs 58 to 71.