Docket: 1003 07203 Procrane Inc. Operating As Sterling Crane Applicant - v. -, 2012 ABQB 37

Court of Queen ’ s Bench of Alberta Citation: Procrane Inc. (Sterling Crane) v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2012 ABQB 37 Date: 20120116 Docket: 1003 07203, 1003 07079 Registry: Edmonton Between: Docket: 1003 07203 Procrane Inc. Operating As Sterling Crane Applicant - and - Appeals Commission for Alberta Workers ’ Compensation Respondent and Between: Docket: 1003 07079 Westower Communications Ltd.

Applicant - and - Appeals Commission for Alberta Workers ’ Compensation Respondent Corrected judgment: A corrigendum was issued on January 17, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment

of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Introduction [ 1 ] This matter came before me pursuant to s. 13.4(1) of the Workers’ Compensation Act , R.S.A. 2000, c. W-15, and as a result of an application for judicial review.

Section 13.4(1) of the Act provides that: 13.4

(1) The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction. [ 2 ]

Section 13.4(11) of the Act provides:

(11) On the hearing of the appeal the Court may (

a) confirm or set aside the decision of the Appeals Commission or any part of it, and (

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate. [ 3 ] Originally Procrane Inc. applied to have the Board transfer some or all of the loss imposed upon its experience account to the experience account of Westower Communications Ltd. pursuant to s. 95 of the Act. Insofar as applicable, that

section provides: 95

(1) The Board shall maintain separate experience accounts in respect of assessments levied and costs of claims chargeable in respect of each employer, but for the purpose of paying compensation the Accident Fund is one indivisible fund.

(2) If it appears to the satisfaction of the Board that a worker has been injured or killed due to the negligence of another employer or another employer’s worker, the Board may direct that the cost of the claim shall be included in the experience account of that employer and, where the employers are in different classes, charged to the class in which that employer is included in the same manner as if that cost had been expended in respect of a worker of that employer, except that where it appears to the satisfaction of the Board that the injury to or death of the worker is due to the negligence of 2 or more persons, one of whom may be the worker who was injured or killed, the Board may direct (

a) that the cost of the claim be included and charged in the experience accounts and classes of the employers who, or whose workers, were negligent, in proportion to the degree of negligence of each person involved, or (

b) that the cost of the claim be included and charged in equal proportions in the experience accounts and classes of the employers involved where the Board is of the opinion that it cannot establish different degrees of negligence. [ 4 ] The loss in question relates to the death of the crane operator who was engaged in lifting the upper part of a communications tower.

[ 5 ] Because the deceased was employed by Procrane, the loss was charged to Procrane’s experience account. Procrane’s attempts to convince the Board and subsequently the Dispute Resolution and Review Board to transfer the loss to Westower’s account, failed. Procrane took the matter to the Appeals Commission, which determined that both Procrane and Westower were negligent and equally responsible for the loss. Both Procrane and Westower appeal that decision and both have applied for judicial review of that decision. II.

Facts [ 6 ] The parties agreed to a completely documentary application before the Appeals Commission. The Commission summarized the arguments and evidence of the parties as follows (the Appellant in the application before the Commission was Procrane, the respondent, Westower): [9] The representative of the appellant argued the costs associated with the fatal workplace accident of February 11, 2003 should be transferred to the respondent’s experience account.

His submissions in support of his argument as set out in his correspondence of May 29, 2008 and in earlier submissions to the WCB are summarized as follows: [9.1] The respondent’s negligence in failing to provide the appellant with an accurate estimate of the weight of the metal structure, which the respondent engaged the appellant to lift, created a situation of danger and was the primary cause of the accident. [9.2] The respondent, as the designated representative/contractor requesting the crane on behalf of the owner of the structure, was responsible for providing an accurate estimate as to the weight of the metal structure to be lifted by that crane. [9.3] It was reasonable for the appellant to rely on the information provided by the respondent as to the weight of the structure. [9.4] The Canadian Standards Association (CSA) Safety Code on Mobile Cranes (the Code) recognizes that crane operators must be able to rely upon the weight estimates they are given by the party requesting the crane.

Section 5.1.5 of the Code specifically obliges the party requesting the crane to provide the operator with the information necessary to determine whether the load to be lifted is within the capacity of the crane. [9.5] In violation of the CSA Safety Code on Mobile Cranes, the respondent was negligent in failing to provide the appellant with an accurate estimate of the weight of the metal structure. [9.6] The information on the weight of the metal structure was within the sole knowledge and domain of the respondent. [9.7] As a general rule and absent any contrary indications, crane owners and operators are entitled to rely on the information provided by the site supervisor. [9.8] It was impossible for the appellant to verify the weight of the metal structure. [9.9] The respondent was negligent in providing an estimate of 8,000 pounds when the actual weight of the structure was much greater than 8,000 pounds. [9.10] If the respondent had provided an estimate of 12,000 pounds, as it contends, the appellant would not have selected the crane it

did because that weight of structure would have required 190% of the crane’s rated capacity.

Larger and more expensive cranes suitable to lift a 12,000 pound structure were available and would have been provided for safety and economic reasons. [9.11] The true weight of the structure, 16,000 pounds, was not known by the operator until the structure was dislodged from the base and by that time there was no safe option, for laying the structure down. [9.12] The expert report of the professional engineer confirmed the operator never had a chance to abort the lift. [9.13] Because the operator had no safe opportunity to abort the lift and could not have prevented the accident from occurring, the entire cost of the claim should be assigned to the respondent. [9.14] The respondent was negligent in failing to provide trained and qualified rigging staff.

The rigging staff attached the crane to the structure in such a manner as to make it impossible to return the structure to its position on the base. [ 7 ] The arguments of the respondent, Westower, were summarized by the Board as follows: [10] The representative of the respondent argued against transfer of the costs associated with the February 11, 2003 fatal accident to the respondent’s experience account.

His submissions in support of his argument as set out in his correspondence of August 6, 2008 and in earlier submissions to the WCB are summarized as follows: [10.1] The claim was the result of negligence by the appellant’s crane operator. [10.2] The metal structure to be lifted was of older manufacture and limited reliable data was available in connection with the actual weight. [10.3] There is no documentation to confirm or deny the initial estimate of 8,000 pounds alleged by the appellant. [10.4] The respondent believes the metal structure was estimated to weigh 12,000 pounds when the parties jointly inspected the site. [10.5] The weight of a structure is verified on the initial vertical lift as a double check on the weight estimate. [10.6] The crane was fitted with an accurate weight measuring device and the crane operator was obligated at all times to know the capacity of his crane and to abort the job if the lift exceeded the crane’s rated capacity. [10.7] The operator had a clear and positive obligation to ensure the crane’s rated capacity was not exceeded. [10.8] CSA standards 3.1.3.2 and 5.4.1.9 support the respondent’s analysis that the sole cause of the accident was the negligence of the appellant’s operator in deciding to continue operations when he knew the weight of the structure exceeded the capacity of the crane. [10.9] The operator had two clear chances to prevent the accident.

First, when the structure was initially dislodged from the base and the crane registered 15,000 pounds of load. The second clear chance to prevent the accident occurred during the lay down process when the operator checked the load chart book but continued to lower the structure.

[10.10] The operator was negligent in his judgment about the capacity of the crane, the radius of the lift and the weight being moved. [10.11] The sole cause of the accident and any negligence associated with the decision to continue operations vests solely with the appellant on account of the actions of its employee. [10.12] Knowing the unsupported weight of the lift, the appellant’s operator elected to continue with the lift without giving any safety warning or other indication that there was a problem with the weight estimate or capacity of the crane in contravention of the CSA standard. [10.13] The employees of the respondent were experienced in rigging and hooked up the structure properly.

There is no evidence that the rigging was at all deficient. [ 8 ] The applicable CSA standards were identified by the Commission in its reasons as follows: [26] The appellant relies on

section 5.1.1 of the CSA Safety Code on Mobile Cranes to show that by providing the appellant with an inaccurate estimate of the weight of the metal structure, the respondent breached the required standard. This

section states: “ 5.1.1 General Considerations Prior to the use of any crane, the owner of the premises, building, structure, or site who is causing the crane to be used, or a designated representative, contractor, architect, or consultant, shall ensure that sufficient precautions are taken to ensure the safety of the public, property, and all personnel, and shall give consideration to the following factors: . . . (

d) management shall provide the operator with the information necessary to determine that the load to be lifted is within the capacity of the machine. This information shall include the weight of the load.” [27] The respondent references the standards set out in

section 3.1.3.2 and

section 5.4.1.9 of the CSA Safety Code on Mobile Cranes to show that the appellant was fully responsible for the accident because of the actions of the crane operator. Those provisions state: “3.1.3.2 Load Indication Devices All cranes manufactured after January 1, 1999 and used for lifting services shall be equipped with either a rated capacity indicator or a rated capacity limiter. All cranes manufactured prior to January 1, 1999 and used for lifting services are recommended to be equipped with either a load indicating device or a rated capacity indicator by the

schedule in Table 2. . . . 5.4.1.9 The Operator shall observe the following precautions:

(

c) The operator shall test all the controls at the start of each shift. If any functions do not operate properly they shall be adjusted or repaired before operations are begun. . . . (

e) The operator shall be responsible for those operating under his or her direct control. Whenever there is any doubt as to safety, no operator shall operate a crane until safety has been assured. . . . (

i) The operator shall know the weight of the load and determine if it is within the capacity of the machine.” [ 9 ] Additionally, the following facts were admitted or undisputed: 1. The crane’s capacity at 60 feet of extension was 10,500 pounds. 2. The tower’s weight was over 16,000 pounds as established by the use of two 10,000 pound scales and two cranes. [ 10 ] The following facts were found by the Appeals Commission and were admittedly jurisdictionally, legally and factually within reasonable conclusions that could have been made: 1.

Despite the argument that Westower’s people told Procrane’s people that the tower weighed about 12,000 pounds, the Commission concluded that Westower in fact told Procrane that the tower weighed approximately 8,000 pounds. 2. Procrane relied upon the weight estimate coupled with their representative’s site visit to select the crane that was used. [ 11 ] On these facts, the Commission correctly identified its task. It had to “determine whether the accident was due in whole or in part of the negligence of the respondent employer” (Westower). III.

Standard of Review [ 12 ] There is no dispute that the Workers’ Compensation Act is legislation designed to compensate injured workers. It is a no fault regime dependent upon employer contributions and investment returns to fund benefits paid to such workers. Therefore the Board commonly and routinely decides questions relating to the cause of a claimed injury. One would think much less commonly, it would be called upon to decide issues of negligence and comparative blameworthiness.

However, called upon to make those decisions it is. [ 13 ] The Commission argues that its decisions in this case are reviewable on a reasonableness standard. The employers advocate correctness as the standard of review. All agree that the determination of negligence is a question of mixed fact and law and that in the context of the Workers’ Compensation Act , questions of mixed fact and law are reviewed on a reasonableness standard. All are also agreed that allocation of loss on the basis of comparative blameworthiness would be reviewable on a standard of reasonableness.

[14] The foundation for the employers’ argument is that while the Commissions decisions are entitled to deference, that deferenceis specific to judicial review applications, not appeals. The employers argue correctness is the applicable standard where the right ofappeal contained in s. 13.4 is being relied upon, as it is here. The employers argue that errors of law, if made, justify intervention. [15] In response, the Commission argues that judicial review standards apply even to the right of appeal contained in s. 13.4. [16] In Dr. Q v.

College of Physicians and Surgeons of British Columbia 2003 SCC 19 , [2003] 1 S.C.R. 226, theSupreme Court of Canada addressed the standard of review of the administrative tribunal’s decision where a right to appeal that decisionwas provided, in these words: 20 This brings us to the second erroneous assumption -- that because the Act grants a right of appeal, the matter could be dealt withwithout recourse to the usual administrative law principles pertaining to standard of review. 21 In a case of judicial review such as this, the Court applies the pragmatic and functional approach that was established by this Courtin U.E.S., Local 298 v.

Bibeault, (SCC), [1988] 2 S.C.R. 1048, and gained ascendancy in Canada (Director ofInvestigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, and Pushpanathan v. Canada (Minister ofCitizenship and Immigration), (SCC), [1998] 1 S.C.R. 982. The term "judicial review" embraces review ofadministrative decisions by way of both application for judicial review and statutory rights of appeal.

In every case where a statutedelegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on thepragmatic and functional approach. [17] The court then concluded that despite the existence of a broad right of appeal, the reviewing standard was one ofreasonableness. The Alberta Court of Appeal in Alberta (Workers’ Compensation Board) v. Appeals Commission, 2005 ABCA 276(hereinafter referred to as the Davick case), applied the directions of McLachlin C.J. in Dr.

Q. and using the functional and pragmaticapproach, concluded that characterization of the question, was the stage of the functional and pragmatic analysis at which the existenceof a statutory right of appeal became relevant.

The Court reasoned that if the question could be seen as one of law or jurisdiction, then theLegislature could be taken to have expected the court to pay less deference to the tribunal’s decision because a right of appeal wasgranted on such matters, whereas other questions, not appealable, were governed by a privative clause and therefore presumptivelyentitled to greater deference (Davick). [18] However, characterization of the question was only one of the four inquiries mandated by the functional and pragmaticanalysis.

The result of the “characterization of the question inquiry” had to be weighed with the results of the other three inquiries todetermine what level of deference was appropriate. [19] Subsequently, the Alberta Court of Appeal concluded that despite s. 13.4(1) of the Act, decisions of the Commission wereentitled to deference and reviewable on a reasonableness standard even where extricable errors of law were alleged to have been made:Shuchuk v. Alberta (Workers’ Compensation Board), 2007 ABCA 213 and Nabors Canada LP v. Alberta (Workers' CompensationAppeals Commission) 2006 ABCA 371.

In both cases the legal questions related to the Board’s

interpretation of its home statute. [20] However, the functional and pragmatic approach which had led the Alberta Court of Appeal to the conclusion that at leastsome extricable questions of law were to be reviewed on a standard of reasonableness was placed on life support as a result of theSupreme Court of Canada’s pronouncements in Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190. In that case,the court advised that where necessary, the functional and pragmatic analysis must still be undertaken, but where the analysis had beenundertaken in other cases, the result arrived at could be relied upon.

This shortcut was tailor made for the Workers’ Compensation Actand the Appeals Commission, twin sources of embarrassingly frequent visits to our courts. Perhaps because of that frequency, it did nottake long for the Alberta Court of Appeal to weigh in on the subject. In Gahir v.

Alberta (Workers’ Compensation AppealsCommission) 2009 ABCA 59, the court allowed that the standard of review of Commission decisions for findings of fact, credibility andquestions of mixed fact and law, is reasonableness. [21] One could be allowed a stifled gasp at this point at the morphing of a right of appeal on a question of law into a review forreasonableness. However, logically, that is precisely what had occurred, at least where the question of law was mixed up with thatchamaeleon fact, or where the question of law was one the Legislature must have anticipated the administrative tribunal would be

required to decide. However, room remained to review for correctiveness strictly legal questions: Patrus v. Alberta (Workers’Compensation Board, Appeals Commission) 2011 ABQB 523, Elgie v. Alberta (Workers’ Compensation Board Appeals Commission)2009 ABCA 277. [22] In my view correctness reviews on questions of law have been seriously curtailed as a result of two very recent decisions ofthe Supreme Court of Canada. Effectively, the Supreme Court has told reviewing Courts to “back off”, at least in reviewing anadministrative body’s

interpretation of its home statute, closely related statutes, and frequently encountered common law principles. Thatis the crux of Rothstein J.’s opinion in Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association 2011 SCC61 hereinafter ATA, and Abella J.’s reasons in Newfoundland and Labrador Nurses' Union v.

Newfoundland and Labrador (TreasuryBoard) 2011 SCC 62 (hereinafter Newfoundland Nurses). [23] While the application before the Supreme Court of Canada in the ATA case was for judicial review, it is plain that in thisprovince the right of appeal in s. 13.4(1) of the Act is reviewable on principles applicable to judicial reviews generally. Therefore I donot think the ATA case can be distinguished on the basis that it was simply an application for judicial review and not an appeal. [24] But what fate, errors of law on judicial review?

Until the ATA decision one could be forgiven for thinking that anadministrative tribunal’s conclusions on extricable questions of law, outside its core function and not involving the

interpretation of itscore statute, would be subject to review for correctness. However, the opinion expressed by Rothstein, J. relative to the

interpretation ofthe constituent statutes and related legal principles, suggests a more deferential approach to all extricable questions of law is warranted: 30 The narrow question in this case is: Did the inquiry automatically terminate as a result of the Commissioner extending the 90-dayperiod only after the expiry of that period? This question involves the

interpretation of s. 50(5) PIPA, a provision of the Commissioner'shome statute. There is authority that "[d]eference will usually result where a tribunal is interpreting its own statute or statutes closelyconnected to its function, with which it will have particular familiarity" (Dunsmuir, at para. 54; Smith v. Alliance Pipeline Ltd., 2011SCC 7, [2011] 1 S.C.R. 160, at para. 28, per Fish J.). This principle applies unless the

interpretation of the home statute falls into one ofthe categories of questions to which the correctness standard continues to apply, i.e., "constitutional questions, questions of law that areof central importance to the legal system as a whole and that are outside the adjudicator's expertise, ... questions regarding thejurisdictional lines between two or more competing specialized tribunals [and] true questions of jurisdiction or vires" (Canada(Canadian Human Rights Commission) v.

Canada (Attorney General), 2011 SCC 53, at para. 18, per LeBel and Cromwell JJ., citingDunsmuir, at paras. 58, 60-61). 31 The timelines question is not a constitutional question; nor is it a question regarding the jurisdictional lines between two or morecompeting specialized tribunals. 32 And it is not a question of central importance to the legal system as a whole, but is one that is specific to the administrative regimefor the protection of personal information. The timelines question engages considerations and gives rise to consequences that fallsquarely within the Commissioner's specialized expertise.

The question deals with the Commissioner's procedures when conducting aninquiry, a matter with which the Commissioner has significant familiarity and which is specific to PIPA. Also, in terms of interpreting s.50(5) PIPA consistently with the purposes of the Act, the relevant considerations include the interests of all parties in the timelycompletion of inquiries, the importance of keeping the parties informed of the progression of the process and the effect of automatictermination of an inquiry on individual privacy interests.

These considerations fall within the Commissioner's expertise, which centresupon balancing the rights of individuals to have their personal information protected against the need of organizations to collect, use ordisclose personal information for purposes that are reasonable (s. 3 PIPA). 33 Finally, the timelines question does not fall within the category of a "true question of jurisdiction or vires". I reiterate Dickson J.'soft-cited warning in Canadian Union of Public Employees, Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979]2 S.C.R. 227, that courts "should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may bedoubtfully so" (p. 233, cited in Dunsmuir, at para. 35). See also Syndicat des professeurs du collège de Lévis-Lauzon v. Collèged'enseignement général et professionnel de Lévis-Lauzon, (SCC), [1985] 1 S.C.R. 596, at p. 606, per Beetz J.,adopting the reasons of Owen J.A. in Union des employés de commerce, local 503 v. Roy, (QC CA), [1980] C.A.394.

As this Court explained in Canada (Canadian Human Rights Commission), "Dunsmuir expressly distanced itself from theextended definition of jurisdiction" (para. 18, citing Dunsmuir, at para. 59). Experience has shown that the category of true questions ofjurisdiction is narrow indeed. Since Dunsmuir, this Court has not identified a single true question of jurisdiction (see Celgene Corp. v.Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3, at paras 33-34; Smith v. Alliance Pipeline Ltd., at paras. 27-32; Nolan v.Kerry (Canada) Inc., 2009 SCC 39, [2009] 2 S.C.R. 678, at paras. 31-36). . .

34 The direction that the category of true questions of jurisdiction should be interpreted narrowly takes on particular importance when the tribunal is interpreting its home statute. In one sense, anything a tribunal does that involves the

interpretation of its home statute involves the determination of whether it has the authority or jurisdiction to do what is being challenged on judicial review. However, since Dunsmuir , this Court has departed from that definition of jurisdiction. Indeed, in view of recent jurisprudence, it may be that the time has come to reconsider whether, for purposes of judicial review, the category of true questions of jurisdiction exists and is necessary to identifying the appropriate standard of review.

However, in the absence of argument on the point in this case, it is sufficient in these reasons to say that, unless the situation is exceptional, and we have not seen such a situation since Dunsmuir , the

interpretation by the tribunal of "its own statute or statutes closely connected to its function, with which it will have particular familiarity" should be presumed to be a question of statutory

interpretation subject to deference on judicial review. . . . 39 What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26). True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's

interpretation of its home statute on the deferential standard of reasonableness. . . . 41 Both Binnie J. and Cromwell J. object to the creation of a presumption of reasonableness review of the home statute of the tribunal. With respect, I find the objection perplexing in view of judicial and academic opinion that the presumption was implicitly already established in Dunsmuir . Professor D. J. Mullan writes in "The McLachlin Court and the Public Law Standard of Review: A Major Irritant Soothed or a Significant Ongoing Problem?", in D. A. Wright and A. M.

Dodek, eds., Public Law at the McLachlin Court: The First Decade , (2011), 79 at p. 108. Justice John Evans of the Federal Court of Appeal has argued in his 2009 10th Heald Lecture delivered at the College of Law at the University of Saskatchewan that in Dunsmuir (reinforced by Khosa ), the Court has now established (re-established?) a very strong presumption of deferential review when a statutory authority is interpreting its home, or constitutive, statute, or any other frequently encountered statute, or even common or civil law principle. I too accept that ....

Both Justice Evans and Professor Mullan are recognized as leading scholars in the field of administrative law in Canada. 42 As I have explained, I am unable to provide a definition of what might constitute a true question of jurisdiction. The difficulty with maintaining the category of true questions of jurisdiction is that without a clear definition or content to the category, courts will continue, unnecessarily, to be in doubt on this question.

However, at this stage, I do not rule out, in our adversarial system, counsel raising an argument that might satisfy a court that a true question of jurisdiction exists and applies in a particular case.

The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such category is indeed helpful or necessary. 43 With respect, Justice Cromwell's reasons fail to appreciate that an invitation to consider whether a true question of jurisdiction or vires exists in a future case does not raise the specter of the constitutional guarantee of judicial review being an "empty shell" (para. 103).

All decisions of tribunals are subject to judicial review, including decisions dealing with the scope of their statutory mandate, even if this Court were to eliminate true questions of jurisdiction as a separate category attracting a correctness review. This change would simply end the need for debate around whether the issue in any given case can be properly characterized as jurisdictional. It would not preclude judicial review on a reasonableness standard when

interpretation of the home statute of the tribunal is at issue. Nor would it eliminate correctness review of decisions of tribunals interpreting their home statute where the issue is a constitutional question, a question of law that is of central importance to the legal system as a whole and that is outside the adjudicator's expertise, or a question regarding the jurisdictional lines between competing specialized tribunals. See Alliance , at para. 26 citing Dunsmuir , at paras 58-61 , and Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals , 2011 SCC 59 , at para. 35 , per Fish J.

44 Dunsmuir provided guidance as to how a standard of review might be determined summarily without requiring a full standard of review analysis. One method was to identify the nature of the question at issue, which would normally or, I say, presumptively determine the standard of review. Contrary to the view of my colleague in para. 97, I would not wish to retreat to the application of a full standard of review analysis where it can be determined summarily. 45 At paragraph 89, Binnie J. suggests that "[i]f the issue before the reviewing court relates to the

interpretation and application of a tribunal's 'home statute' and related statutes that are also within the core function and expertise of the decision maker, and the issue does not raise matters of legal importance beyond administrative aspects of the statutory scheme under review, the Court should afford a measure of deference under the standard of reasonableness." With respect, I think Binnie J.'s isolating matters of general legal importance as a stand-alone basis for correctness review is not consistent with what this Court has said in Dunsmuir , Alliance, Canada (Canadian Human Rights Commission) and Nor-Man . 46 At paragraph 22 of Canada (Canadian Human Rights Commission) , LeBel and Cromwell JJ. state: On the other hand, our Court has reaffirmed that general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise, must still be reviewed on a standard of correctness, in order to safeguard a basic consistency in the fundamental legal order of our country. [Emphasis added.] In other words, since Dunsmuir , for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator's specialized area of expertise. [ 25 ] In this case, it seems to me that just as determining whether someone is negligent is a question of mixed fact and law, so is determining the appropriate standard of care.

Settling on a standard of care depends upon a factual context. Therefore, the appropriate standard of review in this case is reasonableness. [ 26 ] Additionally, it seems to me that the spirit of the Supreme Court of Canada’s recent pronouncements and Justice Rothstein’s endorsement of Justice John Evans’ lecture compels that same conclusion. While the Board does not engage in determining negligence as frequently as it does causation, it cannot fairly administer its pool of funds and employer experience accounts without determining questions of negligence as required.

As such, the determination of whether an employer is negligent is part of the core function of the Board about which, at least in context, it has developed some expertise. That should be enough for the reviewing court to defer, absent unreasonableness. [ 27 ] Therefore I have concluded that the decisions of the Commission are reviewable on a reasonableness standard. IV. Application of the Standard A. Negligence [ 28 ] The real issue in this appeal/review is the Commission’s identification of the standard of care owed by the employers to the employee, the other workers and each other.

In that regard, the Commission identified the standard of care at para. 28 of its decision as follows: Given the nature of the operation in which the employers were engaged and the references made by the employers to the standards set out in the CSA Safety Code on Mobile Cranes, the panel finds that this Safety Code establishes the standard of care expected of the employers in an operation such as this.

Further, in light of the specific requirements of the identified sections, the panel is satisfied that the provisions of the Safety Code apply to both employers despite the differences in their respective roles in this operation.

[ 29 ] The Commission then found the standard had been breached at paras. 35 and 36: [35] The panel finds that the respondent did not provide the appellant with a reasonably accurate estimate of the weight of the structure to be lifted. The panel finds that by not providing the accurate information necessary to determine the load to be lifted, the appellant did not have the information it required to select a crane with the capacity to lift the structure. [36] On these facts, the panel finds that the respondent breached its duty of care as required by

section 5.1.1 of the CSA Safety Code on Mobile Cranes by not providing a reasonably accurate estimate of the weight of the structure. The panel finds that the respondent failed to exercise the standard of care that a reasonably prudent contractor/designated representative of the owner would have exercised in these circumstances when it failed to provide the information necessary to determine that the load to be lifted is within the capacity of the machine, including the weight of the load.

The panel finds that by significantly underestimating the weight of the structure, the respondent created a foreseeable and unreasonable risk that a hazardous condition would result if the crane selected on the basis of that weight estimate was inadequate to perform the operation. [ 30 ] Westower argues that the Commission has taken a principle from the Safety Code which could at most be described as a general practice and elevated it to a determining factor. Westower also argues that in applying the standard of care, the Commission effectively imposed principles of strict liability on Westower. I disagree.

The reference to the Safety Code was a convenient shorthand method of stating the obvious. Westower had control of information relevant to the safe execution of the task. Information about weight was crucial to safely moving the structure. It follows that Westower had to take care to provide reasonably accurate information about the weight of the structure. Implicitly, it is plain that the Commission did not accept that Westower had done what it could and should. That is sufficient: ATA and Newfoundland Nurses . B.

Allocation [ 31 ] The Commission’s reasoning in respect of allocation is expressed in para. 52: The panel concludes that the respondent and the appellant were equally negligent in breaching their respective standards of care as required by the CSA Safety Code on Mobile Cranes. As a result, in consideration of all the circumstances, the panel concludes that the claim costs associated with the February 11, 2003 accident should be charged to their experience accounts in equal proportions. [ 32 ] By itself, that explanation lacks any analysis supporting the conclusions reached.

However, this decision must be appreciated in the context of the evidence presented and the decisions made which led the Commission to the question of allocation. In the context of the factual dispute as to what the crane operator could have done, the extent of the emergency, the opportunities to halt the operation and the gross underestimation of weight, it would not be surprising if reasonable people disagreed about the comparative blameworthiness of the employers. It would not be surprising if reasonable people could not decide if one employer was more blameworthy than the other.

It follows that to have reached the conclusion that the employers were equally responsible for the loss was perfectly reasonable. [ 33 ] In result, the appeals and applications for judicial review are dismissed. The parties may seek relief respecting costs, on appointment. Heard on the 16 th day of December, 2011. Dated at the City of Edmonton, Alberta this 16 th day of January, 2012.

T.D. Clackson J.C.Q.B.A. Appearances: Sean E.Ward Reynolds Mirth Richards & Farmer LLP for the Applicant Sandra Hermiston Appeals Commission for the Respondent Scott Bower Bennett Jones LLP for Westower Communications Ltd. Manoj Gupta Workers’ Compensation Board of Alberta for Workers’ Compensation Board of Alberta _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice T.D. Clackson _______________________________________________________ Please note that the Style of Cause should have read as below: Between: Docket: 1003 07203 Procrane Inc. Operating As Sterling Crane Applicant - and -

Appeals Commission for Alberta Workers’ Compensation Respondent and Between: Docket: 1003 07079 Westower Communications Ltd. Applicant - and - Appeals Commission for Alberta Workers’ Compensation Respondent