Skyline Roofing Ltd. v. Alberta (Workers’ Compensation Board Appeals Commission),

• Judge: Slatter, J.
• Neutral Citation: 2001 ABQB 624
• Citation: 2001 ABQB 624,(2001), 292 A.R. 86 (QB),[2001] 10 WWR 651,292 AR 86,95 Alta LR (3d) 126,34 Admin LR (3d) 289,[2001] CarswellAlta 940,[2001] AJ No 985 (QL),292 A.R. 86,[2001] A.J. No 985 (QL),(2001), 292 AR 86 (QB)
• Date: 13 June 2001
• Court: Court of Queen's Bench of Alberta (Canada)

Skyline Roofing Ltd. v. WCB (2001), 292 A.R. 86 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. AU.042

In The Matter Of the Workers' Compensation Act, Revised Statutes of Alberta 1980, c. W-16 as amended;

And In The Matter Of that certain decision made the 1st day of November 1999 by the Appeals Commission established pursuant to the Workers' Compensation Act in respect of WCB Claim File AO 382 8455X;

And In The Matter Of an application pursuant to Part 56.1 of the Alberta Rules of Court

Skyline Roofing Ltd. (applicant) v. The Workers' Compensation Board and The Appeals Commission established pursuant to the Workers' Compensation Act (respondents)

(Action No. 0003-08154; 2001 ABQB 624)

Indexed As: Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

July 23, 2001.

Summary:

Skyline Roofing contracted with Ross to install roofing materials. Ross retained Schemenauer to assist him for four days. Schemenauer was injured on the job. The Workers' Compensation Board determined that Schemenauer's employer was Skyline, not Ross. The Appeals Commission upheld the decision. Skyline applied for judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Alberta Court of Queen's Bench stated that "In determining the standard of review, the 'expertise' of a tribunal should be measured at an institutional level. Of significance is whether the statute requires that the members hold particular technical qualifications. Regard should also be had to the technical support available to the Tribunal. The general profile of the members is relevant, but the qualifications of individual members of a tribunal are not. If the qualifications of individuals were to be taken into account, the standard of review of the same type of decision might vary depending on which particular members heard the particular matter." - See paragraph 47.

Administrative Law - Topic 8264

Administrative powers - Discretionary powers - Fettering of discretion - Section 3.1 of the Workers' Compensation Act expressly granted to the Workers' Compensation Board the power to adopt policies - The Board applied its "pooling of labour policy" and found that a company was an "employer" under the Workers' Compensation Act - The company alleged that the Board fettered its discretion in applying its policy - The Alberta Court of Queen's Bench held that, in this particular case, the Act allowed the Board to fetter the discretion that it was otherwise granted under the Act - Further, the Board's policy might not have fettered its discretion in fact - Although there was a mandatory tone to some aspects of the policy, it was inherently open-textured, including a significant amount of flexibility in the generality of wording of its phrases - See paragraphs 74 to 89.

Administrative Law - Topic 8843

Boards and tribunals - Capacity or status - To appear before the courts when its decisions are under judicial review - The Workers' Compensation Board determined that a company was an "employer" - The Appeals Commission upheld the decision - The company applied for judicial review - The Appeals Commission appeared on the application - The Alberta Court of Queen's Bench stated that "In situations when there is no adverse party to present the arguments, it should be the Board that justifies its policies and decisions, not the Appeals Commission. ... The Appeals Commission is entitled to appear to argue truly jurisdictional issues relating to it, such as the standard of review to be applied, the related question of the expertise of the Appeals Commission, and any challenge to the jurisdiction of the Appeals Commission to hear a particular appeal." - See paragraph 24.

Workers' Compensation - Topic 4

General principles - Definitions - Employer defined - Skyline Roofing contracted with Ross to install roofing materials - Ross usually worked alone, hiring helpers only on a casual or intermittent basis - Ross retained Schemenauer to assist him for four days - Schemenauer was injured on the job - The Workers' Compensation Board applied its "pooling of labour policy" and held that Schemenauer's employer was Skyline, not Ross - The Appeals Commission upheld the decision - Skyline applied for judicial review - The Alberta Court of Queen's Bench dismissed the application.

Workers' Compensation - Topic 1071

Boards - Jurisdiction - To make policies - In 1998, the Workers' Compensation Board applied its "pooling of labour policy" and found that Skyline was "an employer" under the Workers' Compensation Act - On judicial review, Skyline alleged that the Board applied its 1997 pooling policy retroactively, which it was not authorized by statute to do - The Alberta Court of Queen's Bench held that the policy was in effect since at least 1981, and the 1997 amendments merely clarified existing policy - Further, while the Board had no general authority to make retroactive policies, the past tense of s. 11(2) of the Act (deemed workers), the definition of employer, and the power to pass policies, might together justify the retroactive application of the pooling of labour policy - See paragraphs 59 to 73.

Workers' Compensation - Topic 1071

Boards - Jurisdiction - To make policies - [See Administrative Law - Topic 8264 ].

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - The Workers' Compensation Board determined that a company was an "employer" - The Appeals Commission upheld the decision - The company applied for judicial review - The Alberta Court of Queen's Bench held that the standard of review of these decisions was patent unreasonableness - See paragraphs 38 to 52.

Cases Noticed:

Nycan Energy Corp. v. Energy and Utilities Board (Alta.) et al. (2001), 277 A.R. 391; 242 W.A.C. 391 (C.A.), refd to. [para. 31].

Elizabeth Métis Settlement v. Larocque et al. (1998), 219 A.R. 36; 179 W.A.C. 36 (C.A.), refd to. [para. 31].

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; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181, refd to. [para. 32].

Ferguson Bus Lines Ltd. v. Amalgamated Transit Union, Local 1374, [1990] 2 F.C. 586; 108 N.R. 293; 68 D.L.R.(4th) 699 (C.A.), refd to. [para. 32].

Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684; 23 N.R. 565; 12 A.R. 449; 89 D.L.R.(3d) 161, refd to. [para. 33].

Budge v. Workers' Compensation Board (Alta.) (1987), 80 A.R. 207; 42 D.L.R.(4th) 649 (Q.B.), dist. [para. 35].

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; 149 D.L.R.(4th) 577, refd to. [para. 39].

Crystal Glass Canada Ltd. v. Workers' Compensation Board (Alta.), 2001 ABQB 481, refd to. [para. 39].

Macoon v. Workers' Compensation Board (Alta.) (1993), 135 A.R. 183; 33 W.A.C. 183; 7 Alta. L.R.(3d) 201 (C.A.), refd to. [para. 39].

Michailides v. Workers' Compensation Board (Alta.) (1999), 260 A.R. 323 (Q.B.), refd to. [para. 39].

Johannessen v. Workers' Compensation Board Appeals Commission (Alta.) (1998), 215 A.R. 325 (Q.B.), refd to. [para. 39].

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; 160 D.L.R.(4th) 193, refd to. [para. 40].

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc. (2001), 270 N.R. 153 (S.C.C.), refd to. [para. 41].

Medicine Hat (City) et al. v. Wilson et al. (2000), 271 A.R. 96; 234 W.A.C. 96; [2001] 2 W.W.R. 601; 191 D.L.R.(4th) 684 (C.A.), refd to. [para. 43].

Witte v. Workers' Compensation Board (N.W.T.), [2001] 1 W.W.R. 418; 19 Admin. L.R.(3d) 185 (N.W.T.C.A.), refd to. [para. 49].

Fullowka v. Witte - see Witte v. Workers' Compensation Board (N.W.T.).

Hagen et al. v. Stromner et al. (1998), 212 A.R. 1; 168 W.A.C. 1; 157 D.L.R.(4th) 333; 59 Alta. L.R.(3d) 368 (C.A.), refd to. [para. 49].

Giant Grosmont Petroleums Ltd. et al. v. Gulf Canada Resources Ltd. et al. (2001), 286 A.R. 146; 253 W.A.C. 146 (C.A.), refd to. [para. 57].

Western Decalta Petroleum Ltd. v. Public Utilities Board (Alta.) (1978), 9 A.R. 175; 6 Alta. L.R.(2d) 1; 86 D.L.R.(3d) 600 (C.A.), refd to. [para. 62].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, refd to. [para. 62].

Northwest Territories Teachers' Association v. Northwest Territories (Commissioner) (1997), 153 D.L.R.(4th) 80 (S.C.), refd to. [para. 62].

R. v. Paton, [1968] S.C.R. 341, refd to. [para. 62].

Statham v. Crimes Compensation Board (Alta.) (1998), 216 A.R. 156; 175 W.A.C. 156; 160 D.L.R.(4th) 567; 65 Alta. L.R.(3d) 339 (C.A.), refd to. [para. 77].

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; [1994] 7 W.W.R. 1; 92 B.C.L.R.(2d) 145; 14 B.C.R.(2d) 217; 22 Admin. L.R.(2d) 1; 114 D.L.R.(4th) 385, refd to. [para. 78].

Superintendent of Brokers v. Pezim - see Pezim v. British Columbia Securities Commission et al.

Maple Lodge Farms v. Canada (Minister of Economic Development), [1982] 2 S.C.R. 2; 44 N.R. 354; 137 D.L.R.(3d) 558, refd to. [para. 78].

Ainsley Financial Corp. et al. v. Ontario Securities Commission et al. (1994), 77 O.A.C. 155; 21 O.R.(3d) 104; 121 D.L.R.(4th) 79 (C.A.), refd to. [para. 79].

R. v. Beaver Creek Correctional Camp Head; Ex parte MacCaud, [1969] 1 O.R. 373; 2 D.L.R.(3d) 545 (C.A.), refd to. [para. 80].

Martineau and Butters v. Matsqui Institution Inmate Disciplinary Board, [1978] 1 S.C.R. 118; 14 N.R. 285; 74 D.L.R.(3d) 1, refd to. [para. 80].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321; [1992] 2 W.W.R. 193; 88 D.L.R.(4th) 1, refd to. [para. 80].

Macoon v. Workers' Compensation Board (Alta.) (1993), 135 A.R. 183; 33 W.A.C. 183; 7 Alta. L.R.(3d) 201 (C.A.), refd to. [para. 81].

Strauts v. College of Physicians and Surgeons (B.C.) (1996), 42 Admin. L.R.(2d) 219 (S.C.), affd. (1997), 94 B.C.A.C. 254; 152 W.A.C. 254; 47 Admin. L.R.(2d) 79 (C.A.), refd to. [para. 81].

Whelan v. Workplace Health, Safety and Compensation Commission (Nfld.) et al. (1999), 181 Nfld. & P.E.I.R. 192; 550 A.P.R. 192 (Nfld. T.D.), refd to. [para. 81].

Peet v. Canada (Attorney General), [1994] 3 F.C. 128; 78 F.T.R. 44 (T.D.), refd to. [para. 81].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, refd to. [para. 90].

Northwood Inc. v. Forest Practices Board (B.C.) (2000), 132 B.C.A.C. 248; 215 W.A.C. 248; 86 B.C.L.R.(3d) 214 (C.A.), refd to. [para. 90].

Statutes Noticed:

Workers' Compensation Act, R.S.A. 1980, c. W-16, sect. 1(1)(h)(i) [para. 9]; sect. 3.1 [para. 16]; sect. 11(1), sect. 11(2) [para. 11].

Authors and Works Noticed:

Galligan, D.J., The Nature and Functions of Policies Within Discretionary Power, [1976] P.L. 332, pp. 333 [para. 89]; 347 to 350 [para. 83].

Holland, D.C., and McGowan, J.P., Delegated Legislation in Canada (1989), pp. 104 to 108 [para. 80]; 109 [para. 82].

Mullan, D.J., Administrative Law (2001), pp. 374, 375, 376 [para. 75].

Counsel:

B.E. Koehli, for the applicant;

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

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

This application was heard on June 13, 2001, by Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on July 23, 2001.