Judith Loreen Pontes As Personal Representative of the Estate of Jose Francisco Pontes, Deceased, the Estate of Jose Francisco Pontes, Deceased, Judith Loreen Pontes, Kyle Liberal Pontes, a Minor by His Next Friend, Judith Loreen Pontes v. Luke Francisco, 2010 ABQB 284

Court of Queen ’ s Bench of Alberta Citation: Pontes v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2010 ABQB 284 Date: 20100427 Docket: 0903 06874 Registry: Edmonton In the Matter of

Section 13.2 of the Workers ’ Compensation Act , R.S.A., 2000, c.

W-15 (“ WCA ”) And In the Matter of Appeals Commission Decision No. 2009-1022 made the 24 th day of November, 2008 relating to the Employment Status of Angus Scott (“ the Decision ”) Between: Judith Loreen Pontes As Personal Representative of the Estate of Jose Francisco Pontes, Deceased, the Estate of Jose Francisco Pontes, Deceased, Judith Loreen Pontes, Kyle Liberal Pontes, a Minor by His Next Friend, Judith Loreen Pontes and Luke Francisco Pontes, a Minor by His Next Friend, Judith Loreen Pontes Applicants - and - Appeals Commission for Alberta Workers ’ Compensation and Workers ’ Compensation Board Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Robert A. Graesser _______________________________________________________

Introduction [ 1 ] In this application, the Applicants seek judicial review of a decision of the Appeals Commission for the Alberta Workers’ Compensation Board.

That decision, dated November 24, 2008, allowed an appeal by the “Interested Parties”, Angus Scott and 668690 Alberta Ltd. operating as Big A Services, and overturned a decision of the Workers’ Compensation Board and its Dispute Resolution and Decision Review Body which had held that Scott was not acting in the course of his employment when the subject accident occurred and was thus not entitled to protection from legal action under the provisions of the Workers’ Compensation Act .

Background [ 2 ] Jose Francisco Pontes was killed, and Walter Fillatre was seriously injured, when the vehicle they were driving in struck a grader which was parked on the side of Zama Lake Highway, a 68 kilometer highway between High Level and Zama City. The grader was owned by Big A and had been operated by Scott, who was a director and shareholder of Big A. [ 3 ] The highway was in the Municipal District of Mackenzie, and Big A had been contracted by the MD to maintain the highway. On the day of the accident, February 15, 2004, Scott began work removing snow and ice from the highway between 8 and 9 a.m.

It was very cold that day, with the temperature being around minus 40​ C . [ 4 ] At approximately 3 p.m., Scott got a call from his daughter, whose vehicle had driven off the road about 7 km away. He was still grading the road at the time. He turned the grader around, and drove it to where his daughter’s car had gone off the road. It took him about 15 minutes to travel to the site, and he arrived there about 3:15 p.m. [ 5 ] Scott assessed the situation, and decided that a tow truck would be needed to extricate the car from the ditch.

He called for a tow truck, and waited with his daughter while the tow truck arrived. While he waited, he graded the area around where the car had gone into the ditch. [ 6 ] When the tow truck arrived at about 4:15 p.m., Scott parked the grader on the side of the road behind the tow truck. He activated the grader’s beacon and four-way flashers, and left its lights on. [ 7 ] Scott did not utilize the grader to help extricate the car, nor did he assist the tow truck driver. He merely observed the process.

As he watched the tow truck operator work (from outside the grader), the Pontes vehicle struck the rear of the grader. The accident happened at about 4:45 p.m. [ 8 ] Big A billed the MD for 8 hours of grading that day. Big A did not mention the “rescue services” in its time ticket. The MD paid Big A for the time.

Scott’s evidence was that he did not bill the MD for the time he spent in the rescue operation, but was paid for all of his time, including the rescue operation, by Big A. [ 9 ] Scott testified that he would have instructed any other employees of Big A to attend to an overturned vehicle on the road if they had been grading the road at the time. [ 10 ] The proceedings before the Workers’ Compensation Board were initiated by Scott and Big A after the Pontes Estate and Fillatre sued them for damages.

Pontes and Fillatre had been in the course of their employment at the time of the accident, and their claims had previously been accepted by the WBC. Scott and Big A sought a declaration from the Board that Scott had been acting in the course of his employment at the time of the accident, and was thus protected from the actions because he (as a director of Big

A) had purchased WCB coverage for himself.

[ 11 ] Both the WCB and the Dispute Resolution and Decision Review Body had ruled that Scott, at the time of the accident, had abandoned his duties or had removed himself from the course of his employment. Scott and Big A appealed that decision to the Appeals Commission, which reversed the decision and declared that Scott had been acting in the course of his employment at the time of the accident. [ 12 ] The Pontes Estate and Fillatre seek judicial review of that decision.

Appeals Commission Decision [ 13 ] The Dispute Resolution and Decision Review Body upheld, in decisions of February 14 and 15, 2006, the previous WCB decision that Scott had removed himself from the course of his employment at the time of the February 15, 2004 motor vehicle accident. [ 14 ] In its decision of November 24, 2008, the Appeals Commission considered the provisions of s. 24 of the Act , as well as the definition of the term “accident” in s. 1(1)(a). [ 15 ] Those sections state: 24(1) Subject to this Act, compensation under this Act is payable (

a) to a worker who suffers personal injury by an accident, unless the injury is attributable primarily to the serious and wilful misconduct of the worker, and (

b) to the dependants of a worker who dies as a result of an accident.

(2) The Board shall pay compensation under this Act to a worker who is seriously disabled as a result of an accident notwithstanding that the injury is attributable primarily to the serious and wilful misconduct of the worker. ...

(4) If the personal injury or death of a worker arose out of the employment, unless the contrary is shown, it is presumed that it occurred during the course of the employment, and if the personal injury or death of a worker occurred during the course of the employment, unless the contrary is shown, it is presumed that it arose out of the employment. 1(1) In this Act, (a) “accident” means an accident that arises out of and occurs in the course of employment in an industry to which this Act applies and includes (

i) a wilful and intentional act, not being the act of the worker who suffers the accident, (ii) a chance event occasioned by a physical or natural cause, (iii) disablement, and

(iv) a disabling or potentially disabling condition caused by an occupational disease; ... [ 16 ] The Interested Parties sought to preclude the Pontes Estate and Fillatre from maintaining their civil claims against them because of s. 23 of the Act , which provides: 23(1) If an accident happens to a worker entitling the worker or the worker’s dependants to compensation under this Act, neither the worker, the worker’s legal personal representatives, the worker’s dependants nor the worker’s employer has any cause of action in respect of or arising out of the personal injury suffered by or the death of the worker as a result of the accident (

a) against any employer, or (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer or worker that caused or contributed to the injury arose out of and in the course of employment in an industry to which this Act applies. [ 17 ] The issue as to whether or not an incident arose out of and in the course of employment is dealt with in WCB policy 02-01. In particular,

Part II, Application 2, Question 2 of the Policy provides factors to be considered in determining whether the time and place of the injury are consistent with employment: The following factors may be considered, together with any other facts relevant to a specific claim: ​ did the injury occur on the employer’s premises? ​ was the worker in the process of doing something for the benefit of the employer? ​ did it occur during a time period for which the worker was being paid? ​ was the worker in that time and place for employment reasons (for example, in a hotel because of an overnight business trip)? ​ did it occur in the course of using equipment or materials supplied by the employer?

Compensation coverage generally begins when the worker enters the employer’s premises to start the work shift, and terminates on the worker leaving the premises at the end of the shift. Coverage may begin with the journey to work if travelling is required as a condition of employment (see Application 3, Travel).

Coverage may also be extended beyond normal work hours to workers who are staying in residential facilities such as bunkhouses or campsites. [ 18 ] The Policy further provides: Workers are not entitled to compensation if they have removed themselves from the course of employment by their actions, and may not be entitled if the accident was a result of serious and wilful misconduct. [ 19 ] In

Interpretation 6, the Policy provides:

A worker will lose entitlement to compensation if the worker’s actions at the time of the injury are a substantial deviation from the expectations and conditions of employment (see

Part II, Application 5). [ 20 ]

Part II, Application 5, Question 2 identifies various types of actions that remove a worker from the course of employment. Serious deviations from employment that would serve to remove a worker from the course of employment are described in Question 3, which states: When a worker voluntarily engages in

an act which is not reasonably expected in the course of employment and which results in abandonment of employment duties, it may be considered a serious deviation.

Each case has to be judged on its own merits. [ 21 ] The relevant findings of the Appeals Commission are found at paras. 37, 38, 40, 41, 45, 46 and 47 as follows: [37] The panel finds that the employment duties the director was expected to perform for the appellant, on February 15, 2004, were comprised of the tasks specific to addressing the icy conditions on the gravel road and activities associated with directing and organizing the work and affairs of the corporation.

The panel finds that the job of addressing the icy conditions on the gravel road included deciding where and how the maintenance was to proceed, monitoring the condition of the road and directing the maintenance activities so that unsafe conditions could be addressed appropriately. [38] The appellant was responsible for maintaining the 68 kilometres of gravel road on a year around basis. The appellant would dispatch an equipment operator to perform necessary maintenance work either at the direction of the municipality or on its own initiative.

Therefore, it is reasonable to conclude that it would be within the employment duties of the operator of the appellant’s road maintenance equipment to plan and organize the onsite work and attend to maintenance tasks as the condition of the road demanded. [40] At approximately 3:00 p.m., the director was called regarding a vehicle that had flipped off the road at kilometre 10 and was overturned in the ditch. The panel finds it was reasonable and within the director’s employment duties that he decide to leave the

section of road he was grading and proceed to the

section of the road where the vehicle had overturned. Further, the panel finds that by leaving that

section of road, he was not abandoning his employment duties as contended by the respondents. Rather, the panel finds he was advancing his work to attend to a

section of the road where adverse conditions had led to an accident. [41] The panel acknowledges that the overturned vehicle belonged to a family member of the director. The panel also notes the director’s concern for leaving any motorist stranded on the remote road. In any event, the panel finds that it was within the director’s employment duties and within the terms of the appellant’s road maintenance contract, for the director to attend to the

section of road where the car had overturned regardless of his connection to the motorist or his concern for leaving someone stranded. [45] In this case, at the time of the motor vehicle accident, the director was at the location on the road for which his employer, the appellant, was responsible. The director used the appellant’s road maintenance equipment to grade the

section of icy road that had proven to be dangerous. The director was paid for his work that day and his salary was not docked for the time spent where the vehicle had overturned. The panel finds that the director was acting to the benefit of his employer, the appellant, by fulfilling the contracted requirement for providing the road maintenance services on a particularly icy

section of the road.

Further, the panel finds that it was within the director’s employment duties to make the decision to remain at the location and that the time spent at the location was not unreasonable given the time of day and the fact that a portion of the road still had to be graded. [ 22 ] As a result, the Appeals Commission held that Scott was acting in the course of his employment: “[h]is conduct arose out of and in the course of his employment duties”. (at para. 49) Position of the Applicants [ 23 ] The Applicants argue that the Appeals Commission decision is unreasonable because on any standard or test, Scott was not engaged in any work-related function.

He was not assisting a stranded motorist and instead was “standing at the side of the road

watching his daughter’s vehicle being extracted from the ditch by a tow truck operator”. [24] The Applicants argue that the work-related activities had all occurred prior to the accident, and at the time of the accident,Scott was: 1. Not addressing icy conditions; 2. Not deciding where and how road maintenance was to proceed; 3. Was not monitoring road conditions; and 4.

Was not in any manner advancing his work. [25] They argue that the Appeals Commission decision did not properly consider what Scott was in fact doing when the actualincident occurred. [26] The Applicants emphasize that Scott was essentially keeping his daughter company at the time of the incident. He was nothelping out with the rescue operation and was merely an observer.

The fact that Scott was paid for his time by Big A should bedisregarded as a relevant factor, because he was the guiding mind of Big A and could decide what to pay himself and for what services. [27] The Applicants submit that the question that should have been considered by the Appeals Commission was “whether or not itwas reasonable, at all, for the grader operator to be held to be continuing in his employment while he stood aside with his daughterwaiting for her vehicle to be extracted”.

Position of the Interested Parties [28] Scott and Big A argue that the Appeals Commission decision is entitled to significant deference, and that the conclusionreached by it stands up to a probing examination. “The evidence and analysis within the reasons reasonably led the Appeals Commissionto the conclusion at which it arrived.” They argue that the reasons of the Appeals Commission are tenable as support for the decision,and that the decision falls within a range of possible outcomes. Standard of Review [29] The first issue to consider is the applicable standard of review.

The parties are agreed that the starting point for any standardof review analysis is now Dunsmuir v. New Brunswick, 2008 SCC 9. In particular, paragraphs 53 - 55 are cited: Where the question is one of fact, discretion or policy, deference will usually apply automatically (Canada (Attorney General) v.Mossop, (SCC), [1993] 1 S.C.R. 554, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We believe that thesame standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readilyseparated.

Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law.Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which itwill have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), (SCC), [1995] 1S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, (SCC), [1997] 1 S.C.R. 487, at

para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of ageneral common law or civil law rule in relation to a specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication inlabour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strictposition evidenced in McLeod v. Egan, (SCC), [1975] 1 S.C.R. 517, where it was held that an administrative decisionmaker will always risk having its

interpretation of an external statute set aside upon judicial review. A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and areasonableness test applied: - A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. - A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). - The nature of the question of law.

A question of law that is of "central importance to the legal system ... and outside the ...specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E.,2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62).

On the other hand, a question of law that does not rise to this level may becompatible with a reasonableness standard where the two above factors so indicate. [30] In addition, a definition of reasonableness is found in para. 47: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [31] Two sub-issues arise in the analysis of the standard of review here. Firstly, are the issues here questions of fact, discretion orpolicy? If so, a deferential standard will apply. [32] Secondly, if the tribunal is engaged in the

interpretation of statutes, a deferential standard will normally apply if the tribunal isinterpreting its home statute or statutes closely connected with its functions. If the

interpretation issue is outside the tribunal’s normalarea of expertise, a correctness standard will normally apply to that aspect of its decision. [33] Only if the standard of review or degree of defence to be given to a particular question or issue has not been previously dealtwith by the Courts does the last step in the analysis need to proceed; namely to have the courts in the jurisdiction analyse the functionsand skills of the tribunal in question to determine the level of expertise developed by the tribunal, which will inform the level ofdeference to be given to the particular question. [34] The Interested Parties refer to Gahir v.

Alberta (Workers’ Compensation Board, Appeals Commission), 2009 ABCA 59 andElgie v. Alberta (Workers’ Compensation Board Appeals Commission), 2009 ABCA 277, Pope v. Alberta (Workers’ CompensationBoard Appeals Commission), 2009 ABQB 423, as well as IMS Health Canada Ltd. v. Alberta (Information & Privacy Commissioner),2008 ABQB 213. [35] In Gahir, the Court of Appeal applied noted at para 13 that the “reasonableness” standard had already been established forfindings of fact, credibility and mixed fact and law,

interpretation of workers’ compensation policies and the application of policies to

particular fact situations and the

interpretation of sections of the Workers’ Compensation Act lying within the expertise of the Appeals Commission, as well as the application of that law to particular fact situations. [ 36 ] Elgie dealt with a determination of the degree of deference to be afforded the Appeals Commission in relation to questions raised on appeal that had not been previously analysed as to the standard of review. [ 37 ] In Pope , the standard of review was agreed by the parties to be reasonableness. [ 38 ] IMS is cited for Ross J.’s analysis of Ryan v.

Law Society (New Brunswick) , 2003 SCC 20 , where she stated at para. 81: When the standard of review is reasonableness, “a court should not at any point ask itself what the correct decision would have been” ( Law Society of New Brunswick v. Ryan , [2003] 1 S.C.R. 247, [2003] S.C.J. No. 17, 2003 SCC 20 , at para. 50 ). Instead it should consider whether the reasons of the tribunal stand up to a “somewhat probing examination”( Ryan , supra at para. 48 ).

If, following “significant searching or testing”, “there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”, then the Court should interfere ( Ryan , supra at paras. 53 and 55 ). It is not the case that “every element of the reasoning given must independently pass a test for reasonableness.” The question for the reviewing Court is whether the tribunal’s reasons “taken as a whole, are tenable as support for the decision” ( Ryan , supra at para. 56 ).

Analysis of Standard of Review [ 39 ] It is clear that the Appeals Commission decision was concentrated on fact-finding and the application of WCB policies. Those functions indicate a deferential standard. [ 40 ] Any

interpretation of statute related to the Workers Compensation Act , which is of course the Appeals Commission’s home statute. That would again indicate a deferential standard. [ 41 ] The issues before the Appeals Commission (issues of fact,

interpretation of policy and

interpretation of the home statute) have already been determined to attract the standard of reasonableness in Gahir , the Applicants agree that the appropriate standard of review is reasonableness. I therefore need proceed no further in the analysis of the standard of review to the questions here. Was the Appeals Commission Decision Reasonable? [ 42 ] In answering this question, I must be mindful of the admonition in Q. v.

College of Physicians & Surgeons (British Columbia) , 2003 SCC 19 that “it is not the role of a judge on Judicial review to substitute his or her views for that of the tribunal.” (at para. 16) [ 43 ] The Applicants frame their argument on the proposition that on the facts found by the Appeals Commission, they could not reasonably come to the conclusion that Scott was continuing in his employment while he stood aside with his daughter waiting for her vehicle to be extracted from the ditch. [ 44 ] It is tempting to question whether the Appeals Commission decision is tenable.

The Applicants make a compelling argument. Those arguments had succeeded with the WCB and the Dispute Resolution and Decision Review Body. But the test to be applied is whether the decision falls within the range of reasonable outcomes on the facts as found. [ 45 ] The Appeals Commission noted at para. 9 that Scott’s employment required him to be on call 24 hours a day, and that the accident occurred where Scott had been operating his employer’s equipment, and that the location was one for which Big A had maintenance responsibility.

[ 46 ] The decision notes at para. 18 that Scott testified that Big A employed him and two other employees, that the road maintenance contract allowed for maintenance to occur either at the direction of the MD or on the initiative of Big A, that when he reached the site where his daughter’s vehicle had left the road, he worked on it, roughing it up so others would not slip in the icy conditions, and that he “remained at the site of the overturned vehicle and was available to help the tow truck remove the car from the ditch”. [ 47 ] The decision notes, additionally, that Scott testified that “he would expect and would authorize the other equipment operators to assist in similar situations on the road and that the time spent would not be deducted from the operator’s salary” (at para. 20). [ 48 ] The Appeals Commission’s key findings, in my view, are found at paras. 41 and 45 of their decision: ...

In any event, the panel finds that it was within the director’s employment duties and within the terms of the appellant’s road maintenance contract, for the director to attend to the

section of road where the car had overturned regardless of his connection to the motorist or his concern for leaving someone stranded. ... Further, the panel finds that it was within the director’s employment duties to make the decision to remain at the location and that the time spent at the location was not unreasonable given the time of day and the fact that a portion of the road still had to be graded. [ 49 ] The panel obviously accepted Scott’s evidence, despite the self-serving nature of it. They were entitled to do so.

Had they rejected his evidence, their decision might well have been different. [ 50 ] But their decisions on credibility and fact findings are entitled to deference, and cannot be said to be unreasonable. [ 51 ] In reviewing the decision as a whole, I cannot improve on the words of Belzil J. in Pope v. Alberta (Workers’ Compensation Board Appeals Commission) , 2009 ABQB 423 , where he held at paras. 15 - 19: The decision of the Appeals Commission comprises an extensive review of the factual background to the claim, coupled with references to relevant WCB policies.

The decision notes that there are some discrepancies in testimony of witnesses, and that some witnesses have incomplete memories of events leading up to the motor vehicle accident. There is no indication in the decision that any extraneous evidence was considered, nor is there any indication that evidence or WCB policies were misconstrued. In Dunsmuir , it was accepted that a reasonableness standard of review is deferential, and incorporates a range of possible solutions. [ 52 ] The same conclusions apply here.

The Appeals Commission decision falls well within the range of possible outcomes, and meets the reasonableness standard mandated by Dunsmuir . Their reasons are tenable as support for their decision, to use the words of IMS and Ryan . Conclusion [ 53 ] The Applicants have failed to establish any basis for interfering with the Appeals Commission decision, and their application is dismissed. Costs may be spoken to.

Heard on the 22 nd day of January, 2010. Dated at the City of Edmonton, Alberta this 27 th day of April, 2010. Robert A. Graesser J.C.Q.B.A. Appearances: Kendal V.T. Power Main Street Law Offices for the Applicants Sandra Hermiston Appeals Commission Alberta Workers’ Compensation for the Respondent Appeals Commission for Alberta Workers’ Compensation Manoj Gupta Workers’ Compensation Board for the Interested Party, Workers’ Compensation Board Raymond G. Baril, Q.C. Chomicki Baril Mah LLP for the Interested Parties, Angus Scott and 668690 Alberta Ltd. o/a Big “A” Services