Kristine Smed Applicant - v. -, 2013 ABQB 120

Court of Queen ’ s Bench of Alberta Citation: Smed v Alberta (Worker ’ s Compensation Board), 2013 ABQB 120 Date: 20130226 Docket: 1201 04975 Registry: Calgary Between: Kristine Smed Applicant - and - Worker ’ s Compensation Board Respondent _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice C. M. Jones _______________________________________________________ I. Introduction [ 1 ] This matter came before me on July 24, 2012 as a special chambers application ("Application").

The Worker's Compensation Board ("WCB") seized two vehicles ("Vehicles") which Kristine Smed ("Smed") claims belonged to her. The WCB claims that the Vehicles were seized ("Seizures") in respect of claims which the WCB asserts against two corporations. Smed claims that the WCB was not entitled to seize the Vehicles. She seeks relief on a number of grounds which are described in more detail below. [ 2 ] Both parties filed materials in support of their positions. The WCB's materials included a brief ("WCB Brief") and two volumes entitled "Record of the Worker's Compensation Board" ("WCB Records").

Smed represented herself at the Application. [ 3 ] Smed swore an Affidavit dated April 25, 2012 ("Smed Affidavit"). She also prepared an extensive brief dated July 4, 2012 ("Smed Brief") in which she set out her arguments, her version of the factual circumstances, extracts of law and a description of the relief she sought. It is clear to this Court that Smed put a great deal of effort into the preparation of the Smed Brief.

II. Nature of Smed's Application [ 4 ] Smed seeks, inter alia , an administrative law remedy. In an Originating Application filed on April 25, 2012, she sought: 1. an order of certiorari , quashing or setting aside the WCB's decision to seize the Vehicles; 2. an order directing return of both of the Vehicles; 3. compensation for loss of use of the Vehicles; and 4. costs. [ 5 ] As noted in D.P.

Jones and A.S. de Villars, Principles of Administrative Law , 5 th ed. (Toronto: Thomson Carswell, 2009) ("Jones and de Villars") at p. 638: Certiorari is used to bring decisions of lower tribunals before the superior court, where the decisions can be quashed if the tribunals have acted without jurisdiction, or where they have made an intra-jurisdictional error on the face of the record. [ 6 ] In the Originating Application, Smed claimed the WCB erred in law, exceeded its jurisdiction, made jurisdictional errors, made incorrect or unreasonable findings of law, fact, or mixed fact and law and incorrectly or unreasonably interpreted its governing legislation, the Workers ’ Compensation Act , RSA 2000, c.

W-15 ("WCA"). Unless otherwise noted, all statutory references herein are to provisions of the WCA. [ 7 ] In support of her position, Smed cites the provisions of the Alberta Rules of Court relating to judicial review, being Rules 3.15 to 3.24, as well as the provisions of ss. 129 and 130. [ 8 ] In the Smed Brief, Smed expanded the relief sought beyond that claimed in the Originating Application to include punitive damages. [ 9 ] The WCB challenges Smed's application on two levels. First, it asserts that she failed to exhaust "administrative avenues" prior to seeking a judicial remedy.

Specifically, the WCB asserts that Smed failed to take advantage of the review and appeal provisions of ss. 120 and 13.2. [ 10 ] Secondly, it asserts that, irrespective of whatever avenues of review and appeal Smed might have pursued, the WCB met the substantive requirements of the WCA permitting seizure of the Vehicles. III. Administrative Remedies [ 11 ] The WCB’s first objection may be conveniently dealt with at this point. Sections 120(2) - (4) set out the steps required for a review as follows:

(2) On receiving a request for a review, the Board shall cause all the information in the Board's possession in respect of the matter that is the subject of the review to be reviewed by the review body.

(3) Unless otherwise allowed by the review body, a request for a review must be in writing and must (

a) set out the date that the decision that is to be reviewed was made, (

b) identify the decision or issue that is to be reviewed, and (

c) set out the reasons as to why the decision or issue should be reviewed.

(4) The review body (

a) must receive the representations, if any, made on behalf of any one or more of the interested parties; and (

b) may confirm, vary or reverse the decision. [ 12 ] It is important to note, however, that s. 120(1) limits the application of s. 120 to appeals from assessments, not from seizures. It provides: 120(1) Where a person has a direct interest in an assessment made under this Act, that person may, within one year from the day that a decision was made in respect of the assessment, seek a review of the decision by the review body appointed under

section 119. [ 13 ] Smed appears, for the most part, to have represented herself throughout the course of this matter.

My review of Smed’s correspondence to the WCB suggests to me that she complied, in substance, with the requirements of ss. 120(2) and (3). [ 14 ] Smed wrote to Alice Geissler of the WCB on January 17, 2012 [WCB Records, Tab 21] noting her objection to the Seizures and expressing her desire to resolve this issue. [ 15 ] Smed wrote to Dwayne Weatherall, Sheriff for Civil Enforcement on January 16, 2012 [Smed Brief, Tab 18] expressing objection to the Seizures and describing the reasons why she considered them to be improper.

Copies of this correspondence were provided to the WCB. [ 16 ] Smed, as a self-represented litigant, may not have followed the procedures specified in s. 120 with as much adherence to formality as would have been the case had she been represented. Further, in commencing her action, she may have co-mingled claims which should properly have been pursued through an Appeals Commission (review of the assessments) with claims which should properly have been pursued through direct application to this Court (review of the Seizures).

However, I am satisfied from my review of the extensive record of communication between Smed and the WCB surrounding the Seizures, that the WCB should be considered to have assumed the obligations under s. 120(4) to proceed with formal review of Smed's objections and adjudication thereon. [ 17 ] I acknowledge that Smed did not seek review by an Appeals Commission established pursuant to s. 10, appeals to which are governed by s. 13.2.

While s. 13.1(1) provides that the decision of the Appeals Commission would not be capable of a challenge before this Court, that prohibition is expressly made subject to s. 13.4. [ 18 ] Subsection 13.4(1) provides: 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. [ 19 ] Thus, had Smed proceeded before an Appeals Commission and been dissatisfied with its decision, she might have sought review by this Court in accordance with s. 13.4.

[ 20 ] I do not think it appropriate to dismiss Smed's action out of hand in light of her failure to pursue an appeal to the Appeals Commission. The Seizures were civil enforcement proceedings, as defined in s. 1 (

g) of the Civil Enforcement Act , RSA 2000, c. C-15 ("CEA"). [ 21 ]

Section 5 of the CEA provides that: 5(1) The Court may, on application by an interested party or an agency, give directions in respect of or determine any matter or issue that arises out of any civil enforcement proceedings [ 22 ] The Court's powers on such an application include the power to: 5(2)(

a) make any order, including a binding declaration of right and injunctive relief, that is necessary to ensure compliance with this Act or to ensure protection of the interests of any person in property that is subject to civil enforcement proceedings; [ 23 ] In my opinion, what is required is a determination of the validity of the Seizures and of the WCB's actions in arriving at the underlying assessments.

The WCB's Brief appears to embrace the merits of proceeding in that fashion. [ 24 ] The WCB also argues that the issue of Smed not exhausting her administrative remedies before seeking a judicial remedy is moot because the WCB had a valid charge against the Vehicles.

The WCB spends much of the balance of the WCB Brief arguing in support of the WCB's charge over the Vehicles and its actions in relation to the Seizures. [ 25 ] In light of the record and the circumstances, I believe it would be wrong to deny Smed the ability to seek judicial review of the WCB's decisions regarding the Seizures on the basis that she failed to follow prescribed review protocols. Therefore, I proceed on the basis that the WCB's actions amount to review of Smed's objections and a rejection of her appeal. [ 26 ] That brings me to the question of the validity of the Seizures.

The following facts are relevant. IV. Background A. Ownership of the Vehicles [ 27 ] The Vehicles are a 1997 GMC 5 ton truck ("Truck") and a 1997 GMC Savanna van ("Van"). The Vehicles originally were owned by KP Manufacturers (Calgary) Ltd. ("Manufacturers"). 1360769 Alberta Inc. ("136") purchased the Vehicles from Manufacturers on December 15, 2007. [ 28 ] Smed signed the agreement of purchase and sale between Manufacturers and 136 on behalf of both vendor and purchaser.

Smed was the sole director and shareholder of 136. [ 29 ] A trustee in bankruptcy for Manufacturers was appointed on December 21, 2007, six days after the sale of its assets, including the Vehicles, to 136. On December 15, 2007, the date 136 acquired the Vehicles from Manufacturers, Smed and 136 entered into a shareholder loan agreement ("SH Agreement"). [ 30 ] Under the SH Agreement, Smed agreed to lend funds to 136. 136 granted security over its assets in favour of Smed in respect of any such loans. Smed signed the SH Agreement on behalf of 136.

[ 31 ] On October 23, 2008, Smed enforced her security interest, becoming the owner of the Vehicles. Notwithstanding this acquisition, the Truck remained registered in the name of Manufacturers. [ 32 ] On December 1, 2009, Smed's daughter, Kristina Dvorkin ("Dvorkin"), applied to open an account with the WCB for KP Manufacturers 1927 Ltd. ("KP 1927"). In her application, she indicated that the business of 136 was purchased by KP 1927 in "November of 2009". Dvorkin was the sole director and shareholder of KP 1927. [ 33 ] At para. 16 of the Smed Brief, Smed denies that KP 1927 acquired the business of 136.

The Van was, however, registered in the name of KP 1927. Further, at para. 16, Smed notes that: As a favour to my daughter, I permitted her company, KP 1927, to use my 1997 GMC Van and permitted her to register the van in its name to facilitate insurance. I did not transfer any legal interest, security interest or beneficial interest. B.

WCB Claims Against Manufacturers and 136 [ 34 ] According to a Certificate dated May 3, 2012, issued by Curtis Craig, Secretary, pursuant to s. 149: 1. an account was maintained with the WCB for 136 from January 9, 2008 until March 31, 2009; 2. an account was maintained with the WCB for KP 1927 from December 30, 2009 until January 28, 2011; 3. As of October 28, 2008 (the date upon which Smed acquired the Vehicles from 136 in accordance with her security interest), 136 was indebted to the WCB in the amount of $5000.00; and 4.

As of the date of the Certificate, KP 1927 is indebted to the WCB in the amount of $27,263.60. [ 35 ]

Section 149 provides that: 149 A certificate purporting to be signed by the secretary (

a) setting out the substance of any order, ruling or decision of the Board, or (

b) setting out information from any books, records, documents or files of the Board in the form of an extract or description shall be admitted in evidence as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or official character of the person signing it. [ 36 ] Accordingly, items 1 through 4 above are to be taken to be true, absent evidence to the contrary. [ 37 ] The WCB notes in the WCB Brief that no appeals have been brought against WCB assessments in respect of 136 or KP 1927. Any such appeal would be brought pursuant to s. 120, discussed in detail below.

[ 38 ] Smed challenges the WCB's determination of amounts owed by 136 and by KP 1927. The WCB counters by noting that neither 136 nor KP 1927, nor Smed herself, challenged the WCB’s determinations of their liability to the WCB. V. Legislative Framework [ 39 ] It is important to understand the basis upon which WCB claims arise and are enforced. The following review of the legislation, while extensive, will serve to provide that basis. [ 40 ] The WCB has power to levy assessments against employers for premiums. Typically, the WCB will assess on the basis of an employer's payroll.

General assessment 97(1) In accordance with and for the purposes specified in the regulations, the Board shall assess and levy on employers a sum based on a percentage of payroll or on some other rate or a specific sum that the Board chooses. [ 41 ] An "employer" includes any corporation deemed by the WCB to have one or more workers in the corporation's service. The term "employer" is defined in s. 1(1)(j): (j) "employer" means (

i) an individual, firm, association, body or corporation that has, or is deemed by the Board or this Act to have, one or more workers in the individual's or its service and includes a person considered by the Board to be acting on behalf of that individual, firm, association, body or corporation, (ii) a proprietor whose application is approved under

section 15, (iii) a corporation where the application of a director of the corporation is approved under

section 15, and [ 42 ] An employer is deemed to have been assessed, and to have notice of that assessment, when the WCB publishes certain prescribed information in the Alberta Gazette.

Publication of assessment 101(1) The Board shall publish in The Alberta Gazette a notice containing a statement of percentages and rates determined and fixed by the Board and of the industries to which they respectively apply and, subject to subsection (2) and the Board's powers in this Part to subsequently alter the amount of the assessment, that publication constitutes the making of an assessment on, and notice of it to, each employer in an industry named in the notice for the year or other period named in the notice, computed on the payroll of the employer at the applicable percentage or rate set out in the notice. [ 43 ] Section 101(1) contemplates that the WCB may change an earlier assessment. [ 44 ]

Section 118 provides that an employer is liable for premiums even in the absence of an assessment.

Liability where no assessment 118 If for any reason an employer liable to assessment is not assessed, the employer is nevertheless liable to pay to the Board the amount for which the employer should have been assessed or so much of it as the Board considers just and equitable, and payment of that amount may be enforced as if the employer had been assessed for that amount. [ 45 ] While the legislation is not explicit on this point, I think it reasonable to interpret this power to permit the WCB retroactively to assess a different amount than had been previously assessed.

Based on my reading of the provisions, it appears that an employer’s liability to the WCB is not contingent upon assessment and is based upon the employer’s actual payroll, as detailed below. This would seem to imply that assessments may be made or corrected retroactively to account for what the correct liability was in the first instance. [ 46 ] The due date for assessments is also contemplated by the provisions of the WCA .

Assessments due 100 Premiums pursuant to an assessment made under this Act are due on January 1 in the year for which the assessment is made, but the Board may collect those premiums in half-yearly, quarterly, monthly or other installments and if it considers that the amount available in the Accident Fund in respect of a particular industry is sufficient for the time being, abate the premiums or defer their collection. [ 47 ] The WCB is empowered to collect those premiums over the course of the year. It may also grant relief in respect of premiums or defer their collection.

However, the WCB is not required to issue any sort of demand to trigger liability for payment. Premium payable without demand 117 The full amount of a premium owing pursuant to an assessment made under this

Part is payable by an employer, notwithstanding the absence of a specific demand or request for payment made by the Board. [ 48 ] Payments may be made based on estimates. Basis of payments 102 Payments on account of their respective assessments shall in the first instance be made by employers in amounts determinable by and based on (

a) the estimates furnished by them under sections 103 to 110, or (

b) the estimates made by the Board under

section 111. [ 49 ] The WCA provides for two possible bases for the assessments.

Section 103 deals with assessments when an employer complies with the requirement to submit payroll information and s. 111 deals with assessments when that requirement remains unfulfilled or compliance is deemed inadequate. Under s. 103, employers must inform the WCB of their actual or estimated payroll for the year.

Statement of wages by employer 103(1) An employer shall, at any time required by the Board, prepare and deliver to the Board a statement showing either or both of the following: (

a) the amount of wages paid to workers employed by the employer in the period specified by the Board; (

b) the amount that the employer estimates the employer will pay in wages to workers employed by the employer in the period specified by the Board.

(2) An employer who is obliged to prepare and deliver a statement under this

section shall include on the employer's payroll any person, other than a director of a corporation, who renders service to the employer, whether or not the employer is under a legal obligation to pay that person any wages, salary or other remuneration, and if that person is not being paid any wages or salary, or is being paid a nominal remuneration, the Board shall, for the purposes of assessment, fix a sum that in its opinion represents a reasonable wage or salary for the service rendered by the person, having regard to the nature of the service, and the Board shall for the purpose of its assessment add the sum so fixed by it to the amount of the payroll of the employer. [ 50 ] Pursuant to s. 111, the WCB may assess an employer on the basis of probable payroll or some other basis considered appropriate by the WCB.

Adjustments are made in situations where the WCB over- or underestimates actual payroll for the period. Basis of assessment when no statement 111(1) The Board may base the assessment on what the Board estimates the probable amount of payroll or other basis of assessment to be if (

a) an employer does not prepare and deliver the statement prescribed in sections 103 to 110 to the Board within the prescribed time, or (

b) the statement referred to in clause (

a) does not, in the Board's opinion, reflect the probable amount of payroll of the employer or other applicable basis of assessment.

(2) If the amount estimated by the Board under subsection (1) is less than the actual amount of the payroll or other basis of assessment, the employer is liable to pay to the Board the difference between the amount for which the employer was assessed and the amount for which the employer should have been assessed on the basis of the employer's payroll or on the other basis of assessment.

(3) If the amount estimated by the Board under subsection (1) is more than the actual amount of payroll or other basis of assessment, the Board shall credit the employer with the amount by which the employer was over-assessed. [ 51 ] Absent information to the contrary, payroll information estimated and supplied by an employer or estimated by the WCB is deemed to be the actual payroll for purposes of an assessment, subject to retroactive adjustment.

Section 112 provides as follows: Presumption of payroll 112(1) Unless a statement or other satisfactory evidence of an employer's payroll for any period is submitted to or obtained by the Board, the payroll estimated by the employer under this Part or by the Board under

section 111, as the case may be, is, for all purposes under this Act, deemed to be the actual payroll of the employer.

(2) If, in an employer's statement to the Board of the amount or estimated amount the employer will expend for wages during the then current year, the employer underestimates that amount, the employer shall pay to the Board as a penalty an amount prescribed by the regulations.

(3) If, in a statement referred to in subsection (2), the employer overestimates the wages, the Board shall credit the employer with the amount the employer is over-assessed as a result of the overestimate. [ 52 ] Upon commencing business (as was the case with KP 1927), an employer is obligated to inform the WCB of anticipated payroll. Employer commencing business 105 If an employer commences or recommences carrying on an industry to which this Act applies, the employer shall, within 15 days, notify the Board of that fact by registered mail and prepare and deliver to the Board the statement required by

section 103 with respect to the remainder of the current year and any other information the Board requires, and that employer is, in respect of the part of the then current year during which the employer carried on that industry, liable for payment to the Accident Fund of a premium pursuant to the assessment for that year. [ 53 ] Pursuant to s. 106, ceasing to be an employer also triggers a notification requirement: Employer ceasing to be employer 106 If an employer ceases to be an employer, the employer shall, within 10 days afterwards, notify the Board of that fact by registered mail, and shall at the same time prepare and forward a statement of the total amount of wages earned by all the employer's workers for the portion of the then current year during which the employer was an employer and is in respect of that period, liable to pay a premium to the Accident Fund pursuant to the assessment for that year. [ 54 ] Where a person has a “direct interest” in an assessment made under the WCA , that person may seek review of the assessment pursuant to s. 120, set out in part above.

The WCA does not define "direct interest". However, our Court of Appeal held in Nabors Canada LP v Alberta (Workers ’ Compensation Appeals Commission) , 2006 ABCA 371 , 397 AR 57 that a financial stake in a decision was sufficient to give a party a “direct interest”, saying at para. 18: The critical factual underpinning is that the decision of this Court (as did the decision of the Commission) will impact on the Appellant’s financial account with the Workers’ Compensation Board.

The uncontradicted evidence is that the Appellant’s WCB premiums in future years will increase by approximately 14% as a result of the decision of the Commission. ... The financial impact on Nabors is apparent. Nabors, in my opinion, is the person with a “direct interest” and has standing to bring this appeal. [ 55 ] Given that Smed claims to own the Vehicles and clearly is affected financially by the Seizures, I am satisfied that she has a “direct interest” for purposes of this application. [ 56 ] Failure to pay an assessment gives rise to a cause of action against the employer.

Non-payment of premium 121(1) The Board has a cause of action against the employer in respect of any amount of a premium under this Act that remains unpaid.

(2) If a premium is not paid at the time when it becomes payable, the employer shall pay to the Board as a penalty for the employer's default an amount prescribed by the regulations. [ 57 ] Further, s. 129 creates both a charge on property and a priority in favour of the WCB. Priority of amount due to Board 129(1) Notwithstanding anything in any other Act, any amount due to the Board by an employer (

a) pursuant to an assessment made under this Act, (

b) in respect of any amount that the employer is required to pay to the Board under this Act, or (

c) on any judgment for an amount referred to in clause (

a) or (

b) creates a fixed, specific and continuing charge in favour of the Board as provided in subsection (2).

(2) If subsection (1) applies, a fixed, specific and continuing charge in favour of the Board is created (

a) on the property or proceeds of property, whether real or personal, of the employer in Alberta, including money payable to, for or on account of the employer, whether the property, proceeds or money is acquired or is to be acquired by the employer before or after the amount becomes due, and (

b) on any other property or proceeds of property, whether real or personal, in Alberta that is used by the employer in or in connection with, or produced by the employer in, the industry with respect to which the employer is assessed or the amount becomes due, whether the property is used or produced before or after the amount becomes due.

(3) Subject to subsection (4) and

section 131, the charge created by this

section is payable in priority over all writs, judgments, debts, liens, charges, security interests as defined in the Personal Property Security Act , rights of distress, assignments including assignments of book debts and other claims or encumbrances of whatever kind of any person, including the Crown, whether legal or equitable in nature, whether absolute or not, whether specific or floating, whether crystallized or otherwise perfected or not and whenever created or to be created.

(4) The charge created by this

section does not have priority over wages due from the employer to the employer's workers where the exercise of the priority would deprive the workers of any of their wages. [ 58 ] Thus, the WCB has a charge for amounts owing to it against property owned or used by an employer. This charge applies to an employer's property irrespective of whether liability to the WCB arose before or after the employer acquired the property.

The charge also applies to property used by an employer irrespective of whether liability to the WCB arose before or after the employer used the property. [ 59 ] A charge thus arising operates retroactively to give the WCB priority over any other claims, with the exception of claims for

wages, which also attach the property. The effect of this provision is to give the WCB a charge against assets that belong to another person if those assets were once used by an employer or owned by an employer, even if the determination by the WCB of the liability to the WCB took place (with retroactive effect) after the asset was transferred to a third party whose security interest in the asset was perfected and enforced. [ 60 ] This conclusion devolves from the combined application of ss. 118 and 129.

Section 129(1) creates a charge and s. 129(2) attaches that charge to the employer’s property and to property used by the employer (not to property belonging to or used by a transferee). Section 129(3) then de-links temporally the date of the employer’s acquisition (but not disposition) of the property and the date of the employer’s use (but not cessation of use) of the property with the date upon which the employer’s liability to the WCB arose.

Section 118 permits determination by the WCB of an employer’s WCB liability after an asset may have been disposed of or may no longer be used by an employer and permits that determination to have effect retroactive to an earlier date when that asset was owned or used by the employer. [ 61 ] This effect (referred to hereinafter as the “WCB retroactive charge”) may appear to be harsh in that it could operate to deprive a transferee of title to an asset acquired from an employer whose WCB liability was determined subsequent to the transfer.

Presumably, however, the transferee would be capable of protecting against that contingency by obtaining a representation or warranty (perhaps secured) from the transferring employer that no WCB liability attaches (or will later be determined to attach) to the transferred asset. [ 62 ] Any assignment by an employer of its assets, irrespective of whether that assignment takes place before or after the date an amount becomes due to the WCB, is rendered void as against the WCB upon that amount becoming due, to the extent the assets of that employer have not been paid out under the assignment at the time an amount becomes due to the WCB.

Also, any security interest (as defined in the Personal Property Security Act (Alberta) ) becomes void as against the WCB at the date upon which an amount becomes due to the WCB, to the extent that money or property has not been paid to the holder of the security interest at the date an amount becomes due to the WCB, irrespective of whether the security interest arises before or after the amount becomes due to the WCB.

Assignments, charges and mortgages void 130(1) When an employer in an industry to which this Act applies defaults in the payment of all or part of a premium owing pursuant to an assessment, or all or part of any other money due to the Board under this Act, any assignment of the employer's personal property made by the employer, including an assignment of book debts, is void as against the Board to the extent of money that has not, at the time of default, been paid under the assignment to or on behalf of the assignor, regardless of (

a) whether the assignment is absolute or not, or (

b) whether the assignment is made before or after the date the premium or other money becomes due or the default occurs.

(2) When an employer in an industry to which this Act applies defaults in the payment of (

a) all or part of a premium owing pursuant to an assessment, or (

b) all or part of any other money due to the Board under this Act, any security interest of the employer is void as against the Board to the extent of money that has not, at the time of default, been paid under the security interest to the holder of it regardless of whether the security interest is created before or after the date the premium or other money becomes due or the default occurs.

(3) In this section, "security interest" means any security interest as defined in the Personal Property Security Act that is created by the

employer (

a) on the employer's personal property in Alberta, or (

b) on any other personal property in Alberta that is used by the employer in or in connection with, or produced by the employer in,the industry with respect to which the employer is assessed or the money referred to in subsection (1) becomes due. [63] Sale of an employer's business (referred to as an "industry") or of the employer's "equipment in bulk" requires the vendor toprovide a certificate from the WCB confirming the absence of a claim against the employer selling or against its assets.

Failure to obtainthis certificate renders the purchasing employer liable to the WCB for the selling employer's outstanding liability, to the extent of thevalue of what was purchased. While the WCA does not define “equipment in bulk”, the Court in Traders Finance Corp v Alberta(Workmens’ Compensation Board) (1954), (AB KB), 11 WWR (NS) 314 (Alta Dist Ct), distinguished a “sale in bulk”from “a mere isolated sale of some part of his equipment”.

Sale of business 132(1) In the case of a sale of an industry to which this Act applies or of the stock or equipment in bulk used in connection with thatindustry, the purchaser shall demand of the vendor and the vendor shall deliver to the purchaser, before the purchaser pays any of thepurchase price for the industry, stock or equipment, a certificate from the Board stating that it has no claim under this Act against thevendor of the industry, stock or equipment.

(2) If the vendor fails to provide the certificate, the purchaser is liable to the Board for an amount that is equal to the amount due fromthe vendor to the Board, up to an amount equal to the fair market value of the industry, stock or equipment. [64] If a purchaser of a corporate employer's assets is either or both of a related person or an associated corporation with referenceto that corporate vendor and the corporate vendor is in default to the WCB, the purchaser is liable for the corporate vendor's debt to theWCB up to the value of assets purchased, irrespective of whether or not a certificate is obtained from the WCB under s. 132.

Thecertificate referred to in s. 132 is not contemplated in s. 134, which sets out the

definitions of related and associated corporations asfollows. Non-arm's length transactions 134(1) In this section, (a) "related group" means a group of persons each member of which is related to every other member of the group; (b) "related persons" or "persons related to each other" means (

i) individuals connected by blood relationship, marriage or adoption or by virtue of an adult interdependent relationship, (ii) a corporation and (

A) a person who controls the corporation, if it is controlled by one person,

(

B) a person who is a member of a related group that controls the corporation, or (

C) any person related to a person described in paragraph (

A) or (B), (iii) any 2 corporations (

A) if they are controlled by the same person or group of persons, (

B) if each of the corporations is controlled by one person and the person who controls one of the corporations is related to the person who controls the other corporation, (

C) if one of the corporations is controlled by one person and that person is related to any member of a related group that controls the other corporation, (

D) if one of the corporations is controlled by one person and that person is related to each member of an unrelated group that controls the other corporation, (

E) if any member of a related group that controls one of the corporations is related to each member of an unrelated group that controls the other corporation, or (

F) if each member of an unrelated group that controls one of the corporations is related to at least one member of an unrelated group that controls the other corporation.

(2) For the purposes of this subsection, (

a) a corporation is associated with another if (

i) one of the corporations controls the other, (ii) both of the corporations are controlled by the same person or group of persons, (iii) each of the corporations is controlled by one person and the person who controls one of the corporations is related to the person who controls the other, and one of those persons owns directly or indirectly one or more shares of the capital stock of each of the corporations, (iv) one of the corporations is controlled by one person and that person is related to each member of a group of persons that controls the other corporation, and one of those persons owns directly or indirectly one or more shares of the capital stock of each of the corporations, or (

v) each of the corporations is controlled by a related group and each of the members of one of the related groups is related to all of the members of the other related group, and one of the members of one of the related groups owns directly or indirectly one or more shares of the capital stock of each of the corporations,

(

b) related persons are deemed not to deal with each other at arm's length, and (

c) it is a question of fact whether persons not related to each other were at a particular time dealing with each other at arm's length.

(3) If a corporation that is in default of the payment of any money due to the Board sells, assigns or transfers ownership of any stock or equipment used in connection with an industry to which this Act applies to a related person or an associated corporation, the purchaser, assignee or transferee is liable to the Board for an amount equal to the amount due from the corporation to the Board, up to the fair market value of the stock or equipment sold, assigned or transferred. [ 65 ] Based on the provisions of s. 134, I conclude that Smed, 136 and KP 1927 constitute a related group, that 136 and KP 1927 are related persons and that 136 and KP 1927 are associated corporations. [ 66 ] The WCB may take collection, recovery and seizure action without regard to the requirements of the CEA if it decides to take recovery action on its own.

Distress 135(1) Subject to subsection (2), the Civil Enforcement Act does not apply to anything done under this section.

(2) If any person fails to pay to the Board any money that the person is liable to pay under this Act within the time provided for that payment, the Board may by itself or by its agent or a civil enforcement agency collect the amount owing with costs by distress of (

a) the goods of that person, or (

b) any property, other than real property, or any proceeds of property that is subject to the charge under

section 129.

(3) No distress shall be made and no levy shall be made under any distress under this

section unless the Board executes and delivers a proper warrant in that behalf to a person authorized by subsection (2) to make and levy a distress.

(4) No person to whom a distress warrant is delivered for execution is bound to proceed unless the person has been furnished with security in an amount the person considers reasonably sufficient to indemnify the person in respect of the person's fees, charges and expenses, and any claims for damages in respect of the distress and levy, and anything done in relation to it.

(5) A person executing a distress warrant under this

section shall (

a) serve on the debtor, and if there is more than one debtor, on each of them, or on an adult member of the debtor's household, (

b) attach to the goods to be seized or some or all of them, or (

c) post in some conspicuous place on the premises on which the goods or some part of them are at the time of seizure,

a notice of seizure setting out the name of the creditor and debtor, a description of the goods seized and the nature of the indebtedness.

(6) For the purpose of effecting the seizure of goods authorized by a distress warrant under this section, or of obtaining the possession of goods that have been previously seized, the person executing the distress warrant (

a) has the right to enter on any land or premises on which any goods subject to distress under the warrant are situated, and to seize, sell or remove the goods that the person executing the distress warrant requires, and (

b) may, if it is not possible otherwise to effect the seizure or obtain possession of the goods previously seized, as the case may be, either by himself or herself or with the assistance of any persons the person executing the distress warrant requests, break open the door or doors of any building, other than a private dwelling house, in which any goods liable to seizure are contained, and on the order of a judge of the Court of Queen's Bench may similarly break open the door or doors of a private dwelling house.

(6.1) At any time after making a seizure, the person executing the distress warrant may appoint the debtor or some other person in possession of the property seized as bailee if the debtor or other person executes a written undertaking in the prescribed form (

a) to hold the property as bailee for the person executing the distress warrant, and (

b) to deliver up possession of the property to the person executing the distress warrant on demand.

(6.2) Property held by a bailee under subsection (6.1) is deemed to be held under seizure by the person executing the distress warrant.

(7) A seizure made pursuant to this

section is a continuing seizure until the secretary by notice in writing releases the seizure or until the goods under seizure have been sold.

(8) The person executing the distress warrant may, in accordance with the regulations, sell by public auction the goods seized or so much of them as is necessary to pay the money due with all lawful costs.

(9) If goods seized under this

section are offered for sale and remain unsold, the person executing the distress warrant may sell the goods by private contract, either to the Board or any other person, if the price offered for the goods is, in the opinion of the person executing the distress warrant, a fair and reasonable price having regard to all the circumstances.

(10) A sale of goods seized under this

section is without warranty of title and the purchaser acquires no more than the precise interest in the goods that can be sold under the power of distress.

(11) If the goods seized are sold for more than the amount due and costs, and if no claim to the surplus is made within 6 months from the date of the sale by any other person on the ground that the goods sold belonged to that other person or that that other person was entitled by lien or other right to the surplus, it shall be paid to the person in whose possession the goods were when the distress was made.

(12) If a claim to the surplus under subsection (11) is contested, the surplus money shall be paid by the person executing the distress warrant to the clerk of the Court of Queen's Bench at the judicial centre closest to the place where the seized goods were situated, who shall retain the surplus until the respective rights of the parties have been determined by action at law or otherwise.

(13) When, at the time a distress warrant under this

section is placed in the hands of a civil enforcement agency, goods of the person against whom the warrant is issued are already under seizure or distraint by the same civil enforcement agency, or are subsequently seized or distrained by the civil enforcement agency, under a distress warrant or writ of enforcement other than the Board's, the goods are, from the time of the placing of the Board's warrant in the hands of the civil enforcement agency, or from the time the seizure or distraint is made, as the case may be, deemed to have also been seized or distrained on by the civil enforcement agency, under the Board's warrant. [ 67 ] I take the exception in subs. 135(2) to mean that the various provisions of the CEA do not apply to seizures by the WCB, but that the WCB may employ a civil enforcement agency for collection purposes. [ 68 ] This legislative framework may be summarized as follows: 1.

An employer includes a corporation that employs at least one person. 2. Assessments against employers may be levied based on their stated payroll or such other basis as the WCB considers appropriate. 3. An assessment arises upon publication of prescribed information in the Alberta Gazette. 4. A prior assessment can be amended by the WCB and the WCB can assess an amount it considers appropriate in the circumstances. 5. Amounts thus assessed by the WCB are payable as if they had been the basis of the original assessment. 6.

Liability for an assessment, however it arises, is retroactive to January 1st of the year in which the assessment is made. 7. Premiums thus assessed are due and owing to the WCB without demand. 8. Payments to the WCB are to be made by employers based on their own estimates of payroll. If the employer fails to remit based on its estimate of payroll, the WCB may make its own estimate and assess on that basis. 9. An employer's failure to provide the WCB with satisfactory evidence of payroll allows the WCB to make its own estimate which becomes binding on the employer. 10.

The onus is on an employer commencing business to notify the WCB of its anticipated payroll. A similar onus attaches to an employer ceasing business. 11. A person wishing to challenge an assessment has one year to seek review of that assessment by a duly appointed review panel. That person must take prescribed steps to obtain such a review. 12. An unpaid assessment gives the WCB a cause of action against an employer. 13. The WCB has a charge for amounts owing to it against both the property of an employer and property used by an employer.

This charge applies to an employer's property irrespective of whether liability to the WCB arose before or after the employer acquired the property. The charge also applies to property used by an employer irrespective of whether liability to the WCB arose before or after the

employer used the property. 14. A charge thus arising operates retroactively to give the WCB a priority over any other claims, with the exception of claims for wages, which also attach the property. The effect of this is to create the WCB retroactive charge. 15. WCB claims against an employer take priority over assignments of an employer's assets to the extent of assets retained by the employer and security interests in assets owned by an employer are void as against the WCB to the extent that the employer continues to hold those assets which are the subject matter of the security interest. 16.

Absent a "clearance certificate" from the WCB, a purchaser becomes liable for a vendor's undischarged WCB liability when it acquires the vendor's business or equipment in bulk. 17. Transfers of an employer's assets to what might be referred to as "non-arm's length" entities fixes the transferee with liability for the transferor's undischarged WCB liability up the value of assets transferred. 18. The WCB may take steps to collect amounts owning to it. [ 69 ] It will be evident that the onus rests with the employer to provide the WCB with accurate information upon which assessments are to be based.

Failure to comply with that obligation exposes the employer to the risk that it will be bound by WCB assessments with which it might disagree. WCB assessments give rise to a charge which takes priority over other claims to an employer's assets. The WCB is able to follow assets into the hands of others, provided liability to the WCB existed (or is later determined by the WCB with retroactive effect to have existed) at the time of the transfer of those assets. Employers who dispute their liability to the WCB must seek a review within prescribed time periods and in prescribed fashion. VI.

Smed's Claims [ 70 ] The WCB claims that: 1. the Vehicles were owned by 136 at a time when 136 had liability to the WCB; 2. the Van was used by KP 1927 at a time when it was owned by Smed; 3. 136 transferred its business to KP 1927 in circumstances which rendered KP 1927 liable for 136's debts to the WCB; 4. KP 1927 used the Truck; and 5.

The WCB acted within its authority to seize the Vehicles. [ 71 ] Smed’s challenges to the Seizures must be examined within the legislative framework set out in detail above. [ 72 ] Smed alleges, first, that she owned the Truck and the Van, having acquired them from 136 on October 23, 2008. [Smed Affidavit, clause 4] However, WCB records indicate that, as of November 14, 2008, 136 owed the WCB $5,000 [WCB Records, Tab 31]. Smed herself asserted that on October 23, 2008, 136 owed the WCB $5,000. Accordingly, s. 129(2)(

a) applied to give the WCB a charge against the Vehicles. By virtue of s. 129(3), Smed’s security interest in the Vehicles ranked behind the WCB's claim. [ 73 ] Smed also alleges at clause 1 of the Smed Affidavit that the Truck and the Van were not owned by KP 1927. While the Van was registered in the name of KP 1927, Smed asserts that this was merely “to facilitate insurance”. Registration of a vehicle in an entity's name gives rise to the rebuttable presumption that the vehicle is that entity's property. (See, for example, R v Grabowski , 2002 ABQB

807 , 325 AR 58 at para. 8 .) I presume that registration in this fashion was not intended to mislead the insurer regarding true ownership of the vehicle. Nevertheless, Smed has offered no evidence in support of the assertion that she continued to be the beneficial owner of the vehicle. In any event, she acknowledged that she allowed KP 1927 to use the Van. Further, despite Smed's assertion that the Truck was never used by KP 1927 and remained parked at her premises after she acquired it from 136, I note that the Truck's registration expired only in November 2010.

It strikes me as odd that Smed would maintain registration of the Truck up to nearly the end of 2010 and not make it available to KP 1927. [ 74 ] Next, Smed alleges that the seizure of the Vehicles on January 13, 2012 was effected without her consent or notification as required by s. 135(5) of the WCA , on land owned by another company which neither 136 nor KP 1927 occupied at the time of seizure, at a time when KP 1927 had already been out of business for a year [Smed Brief, clause 2].

She alleges that she was denied the right to refuse entry to the premises from which the Vehicles were seized as required by the CEA [clause 29, Smed Brief]. [ 75 ] Section 135(6) of the WCA permits seizure to take place anywhere. There is no requirement that the debtor occupy the premises upon which seizure is effected. Notices of Seizure dated December 7, 2011 (for the Truck) and January 13, 2012 (for the Van) appear at Tab 13 of the WCB's Records. Smed asserts that on January 13, 2012, Gary Junville from Alternative Bailiff Services Ltd. notified her of the Seizures in person after they had taken place.

Section 135(5) does not appear to require notification of seizure to be served before seizure is effected. Indeed, s. 135(5) provides for alternatives to service of the notice of seizure on the debtor, including service on an adult member of the debtor’s household and posting of the notice in “some conspicuous place” on the premises where the property is located. Furthermore, it is clear from Tab 47 of the WCB's Records that a representative of Alternative Bailiff Services Ltd. attended upon Smed on December 7, 2011.

Paragraph 29 of the Smed Brief confirms that one of the Notices of Seizure was served on her after seizure took place. Presumably, that confirms her assertion that she was served with Notice of Seizure in respect of the Truck on December 7, 2011, Notice of Seizure in respect of the Van having been served on her on January 13, 2012, the date seizure of both Vehicles was actually effected. [ 76 ] Smed then argues at clause 29 of the Smed Brief that she was denied the right to object to the Seizures.

However, both Notices of Seizure (for each of the Van and the Truck) include the following notation: Notice of Objection if Applicable to this Seizure _____Yes_____No [ 77 ] "No" was ticked in both cases. In the Notice of Seizure applicable to the Van, additional language was crossed out.

That language read as follows: If you object to the seizure, you must deliver the Notice of Objection to the Civil Enforcement Agency listed below within 15 days from the date that the seizure documents were served. [ 78 ] Smed alleged that this language was already crossed out when she received the Notice of Seizure for the Van. However, she has not established to my satisfaction that this was the case.

Neither do I accept that Smed would have interpreted the crossing out of language on a form referring to objections to seizure as determinative of whatever rights she might have in that regard. [ 79 ] Further, there is ample evidence from the periods leading up to, coincident with and subsequent to the Seizures to indicate that Smed was aware that the Seizures were imminent, that she objected thereto and that she was threatening legal action if they proceeded. [ 80 ] For example, the bailiff’s report dated December 7, 2011 states that when the bailiff attended at the premises from which 136 and KP 1927 conducted business in an attempt to effect seizure, Smed refused to sign a Bailiff’s Undertaking (as contemplated by s. 135(6.1)) and indicated that she would sue.

In addition, the bailiff’s report dated January 13, 2012 in respect of the Seizures (WCB Records, Tab 14) states as follows: I served notice of seizure on Kristine Smed. She became quite irate and told us to get off her property ... she said she was going to sue us and the WCB and that we had committed theft. [ 81 ] Correspondence sent by Smed subsequent to the Seizures also makes clear her objection. She wrote to Alice Geissler of the

WCB on January 17, 2012 (WCB Records, Tab 21) objecting to the Seizures and expressing her desire to resolve the issue. The WCB Records also are replete with notes of conversations with Smed with respect to the Seizures. [ 82 ] In addition, Smed wrote to Dwayne Weatherall, Sheriff for Civil Enforcement, with copies sent to the WCB and its counsel, to the Globe and Mail, to the Calgary Herald and to Mayor Nenshi.

In that letter, Smed: 1. alleged trespass; 2. indicated that she had contacted Alice Geissler on December 7, 2011 to object to the Notice of Seizure in respect of the Truck; 3. threatened legal action, alleging “deliberate and calculated theft” of her property; and 4. asserted that the WCB’s representatives were acting illegally and arrogantly. [ 83 ] Smed is presumed to have known of any statutory right to object in the prescribed manner and within the prescribed time limits. She chose not to avail herself of that right.

Nevertheless, and notwithstanding her protestations that she was denied her right of objection, it is abundantly clear that Smed did object to the Seizures before, during and after their occurrence. In consequence, I do not accept Smed’s argument that she was denied the right to object to the Seizures. To the contrary, I find that she had ample opportunity to do so, but failed to follow the correct procedure. [ 84 ] The CEA provides as follows at

section 46 : Objection 46(1) Where an enforcement debtor wishes to object to a seizure of personal property, the enforcement debtor must within 15 days from the day that (

a) the seizure documents are served under section 45(1)(a)(

i) on the enforcement debtor or an adult member of the enforcement debtor's household, or (

b) the seizure documents are served under section 45(3) on the enforcement debtor, serve a notice of objection in the prescribed form on the agency that carried out the seizure.

(2) On being served with a notice of objection, the agency shall not sell or otherwise dispose of the property unless permitted to do so by the Court.

(3) A notice of objection is void and shall be disregarded if (

a) a reason for the objection is not set out in the notice of objection, or (

b) the notice of objection is not served on the agency within the 15-day period provided for under subsection (1). [ 85 ] I do not believe this provision is of assistance to Smed for two reasons. First, s. 135(1) of the WCA provides that the CEA does not apply to enforcement proceedings taken pursuant to the WCA, subject only to the WCB’s entitlement under s. 135(2) to use a civil enforcement agency for collection. Second, even if s. 46 of the CEA applies, there is no evidence that Smed served a notice of objection on the civil enforcement agency as contemplated by s. 46(1)(b).

[ 86 ] Smed next alleged that there is no evidence that 136 sold its business to KP 1927. She asserts that KP 1927 therefore cannot have liability for 136's undischarged WCB liability and that the WCB had no legal authority to transfer liabilities from 136 to KP 1927. [ 87 ] Smed's daughter, Dvorkin, opened a WCB account for KP 1927 by application to the WCB on December 1, 2009. On that application, she filled in boxes, the effect of which was to represent that 136 had sold its business to KP 1927 in November 2009.

Smed claims [Smed Brief, clause 16] that her daughter was incorrect and that there was no business acquisition between 136 and KP 1927. In my view, the WCB, when making its assessment, is entitled to act on the basis of information provided to it. When Dvokin signed the application on behalf of KP 1927, she certified that she had the authority to execute the application and that the facts set forth in it application were true and correct to the best of her knowledge and belief.

Dvorkin did not file an affidavit refuting these assertions and Smed did not call her as a witness. [ 88 ] Therefore, I reject Smed’s arguments on this point. [ 89 ] Next, Smed asserts that, at the time of KP 1927's application to the WCB on December 1, 2009, she was already the owner of the Vehicles, having enforced her security interest against 136 on October 23, 2008. [ 90 ] The Vehicles having been owned at one time by 136, a charge against them arose in favour of the WCB under s. 129(2). By virtue of s. 129(3), that charge had priority over Smed's security interest in the Vehicles.

Therefore, this argument is of no assistance to Smed, particularly in light of the WCB retroactive charge described above. [ 91 ] Smed’s next argument is that the invoice dated January 6, 2012 adding $19,777.12 from 136's account to the account of KP 1927 was fully a year after KP 1927 was dissolved and two years and nine months after 136 had ceased business and was unable to pay. [ 92 ] Again, this argument is of no assistance to Smed.

Nothing in the WCA extinguishes the WCB's claim to assets arising by virtue of an employer's ownership or use of assets simply because an employer has ceased to exist, cannot pay or has gone out of business. [ 93 ] Smed asserts that only $5000 was owed by 136 to the WCB on October 23, 2008, the date she acquired the Vehicles from 136. Her position is that only future installments due were owed at the date of the WCB's premium invoice dated November 14, 2008. [ 94 ] Liability of $5000 was sufficient to create a charge against the Vehicles owned by 136 and subsequently transferred to Smed.

The fact that 136 incurred additional liability to the WCB after it transferred assets to Smed does not affect the validity of the WCB's charge against the Vehicles for these additional amounts by virtue of s. 129(2)(a). [ 95 ] In Harding v Alberta (Workers ’ Compensation Board) , [1988] AJ No 50 , Master Funduk said “I have no doubt that one of the purposes, if not the purpose, of [s.126(1)(e), the predecessor to s. 129(2)(b)] is to prevent the abuse where the principals of the employer company own the assets used by the company in its business to avoid any collection from the employer company.

The Act is social legislation and the wisdom of the scope of

section 126 is not a matter for the Courts.” [ 96 ] In Spray Equipment Ltd. v Alberta (Workers ’ Compensation Board) , [1989] AJ No 751 , Cooke J. said “It should be noted that while 126(1)(

e) extends the fixed charge to the property of persons other than the debtor employer, s. 131(2) limits the power of distress to the goods of the person who is liable under the Act.” That comment, however, was made in the context of the WCA as it previously read. While current s. 135(2) refers to (

a) the goods of the person liable and (

b) any property or proceeds subject to the charge under s. 129, the old s. 131 referred only to the goods of the person. [ 97 ] Based on the foregoing, I am satisfied that the intent of these provisions of the WCA is for the charge to “continue” to attach property even in circumstances where the employer has disposed of it.

[ 98 ] Smed also argues that, for KP 1927, there is a discrepancy between amounts noted on Notice of Seizure on January 13, 2012 and amounts shown on WCB premium invoice dated January 6, 2012. For 136, a premium invoice dated January 14, 2012, after the seizure, was backdated to December 19, 2011, showing nothing owing from 136 because of a transfer of liability to KP 1927 pursuant to

section 132. [Smed Brief 32(3)] [ 99 ] As discussed above, the WCB may alter assessments retroactively. The adjustments made by the WCB to its premium invoices reflect its assessment of liability based on the application of the WCA and are in compliance with its powers. [ 100 ] Finally, Smed argues that the WCB did not obtain Court approval regarding the value of goods to be seized and that the value of the Vehicles exceeds the indebtedness to the WCB. [ 101 ] The WCB is not required to obtain Court approval of the value of goods to be seized. The WCB did not need to obtain a Court order to attach the Vehicles.

The Court is not required to place a value on the Vehicles. Presumably, the WCB will sell the Vehicles at auction and amounts not needed to discharge liability to the WCB will be refunded to Smed. Therefore, this argument fails. VII.

Conclusion [ 102 ] As noted above, in her Originating Application, Smed claimed the WCB erred in law, exceeded its jurisdiction, made jurisdictional errors, or made incorrect or unreasonable findings of law, fact, or mixed fact and law and incorrectly or unreasonably interpreted its governing legislation, the WCA . [ 103 ] On the basis of these alleged deficiencies, Smed sought, inter alia , an order of certiorari , quashing or setting aside the WCB's decision to seize the Vehicles.

Certiorari is not available to correct an error of fact; see Jones and de Villars, p. 469. [ 104 ] As noted in the passage quoted above from Jones and de Villars, certiorari is used to bring decisions of lower tribunals before the superior court, where the decisions can be quashed if the tribunals have acted without jurisdiction, or where they have made an intra-jurisdictional error on the face of the record.

Jones and de Villars also note at p. 641 that “...certiorari and prohibition lie only against public bodies whose authority is derived from statute.” Clearly, the WCB is a public body which derives its authority from the WCA . [ 105 ] Certiorari is a discretionary remedy in the sense that the Court is empowered to decide if the circumstances are appropriate for it to be available against the WCB, as an administrative body. [ 106 ] By what standard must the WCB's decisions be judged?

The Court of Appeal made these comments in Alberta (Workers ’ Compensation Board) v Appeals Commission , 2005 ABCA 276 , 371 AR 318 (the “ Davick ” decision) at para. 12: There is no one, correct, standard of review of general application for all decisions of a specific tribunal or all questions within a general category. In each case, the court must select the standard of review, using the functional and pragmatic approach: Dr. Q. at para. 21.

This analysis must be employed on every judicial review application, to every question under review, from every administrative decision-maker. [ 107 ] At para. 10 of Davick , the Court of Appeal noted: The Pushpanathan functional and pragmatic approach applies to both.

The analysis involves an examination of four factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purpose of the legislation and the provision in particular; and (4) the nature of the question: law, fact or mixed fact and law. A reviewing court must consider and balance these four factors to determine the level of deference the

legislature intended, and to select the appropriate standard of review for each question. The three standards, in decreasing order of deference, are correctness, reasonableness and patent unreasonableness. The chosen standard is then applied to the question under review. [ 108 ] However, the Court of Appeal subsequently added further nuance to its approach. In Nabors , the Court held as follows at para. 12: In so concluding, I depart from the opinion in Davick that a standard of review analysis must be done in “every” case.

There is no one correct standard of review of general application for all decisions of a specific Commission, or all questions within a general category ( Davick at para. 12). However, questions within a clearly specified category, such as “entitlement to compensation” do not require a fresh functional and pragmatic analysis if the reviewing court concludes that the case at bar engages the same question. I say that notwithstanding the often quoted passage in [ Dr.

Q. ] ... [ 109 ] Further, in Foster v Alberta (Transportation and Safety Board) , 2006 ABCA 282 , 397 AR 82, the Court of Appeal made these comments at para. 8: There may be a case that presents the very same issue, in the very same factual matrix, as another case where the standard of review has already been determined. In such a situation, a Pushpanathan analysis may be moot. There may be a case where the issue and facts are so similar to another case that a Pushpanathan analysis can be perfunctory.

Very often, however, the factual context presented by a judicial review case is sufficiently nuanced that a full Pushpanathan analysis is necessary. Here, such an analysis was required. [ 110 ] More recently, in Thompson Brothers (Construction) Ltd. v Alberta (Appeals Commission for Alberta Workers ’ Compensation) , 2012 ABCA 78 , 522 AR 118, the Court of Appeal held as follows at paras. 14 and 15: The standard of review of decisions of the Appeals Commission was summarized in Gahir v. Alberta (Workers ’ Compensation Appeals Commission) , 2009 ABCA 59 at para. 13 , 1 Alta LR (5 th ) 290, 448 AR 135: a.

Findings of fact, credibility and mixed fact and law are reviewed for reasonableness. b.

Interpretations of workers’ compensation policies, and the application of policies to particular fact situations are reviewed for reasonableness. Whether a particular employee is entitled to compensation, and the level of that compensation, generally falls into this category. c. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed for reasonableness, as is the application of that law to particular fact situations. d. True jurisdictional issues are reviewed for correctness. Where the standard of review has been established, a fresh analysis is not required in every appeal. In Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190, the Supreme Court of Canada confirmed that superior courts should extend deference to the decisions of administrative tribunals.

The most recent pronouncements from the Supreme Court confirm that the general standard of review is reasonableness. Apart from true issues of jurisdiction (a very narrow category), and issues that are clearly of importance to the legal system as a whole, virtually all questions of

interpretation of the “home statute” by an administrative tribunal like the Appeals Commission will be reviewed for reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers ’ Association , 2011 SCC 61 at paras. 34 , 39. Many of the issues before the Appeals Commission related to the admissibility of evidence, the weight to be given to evidence, the

interpretation of Board compensation policy, whether the employee was entitled to compensation, and the

interpretation of the Appeal Commission’s home statute. These are all issues within the core mandate of the Appeals Commission, and the standard of review is reasonableness. [ 111 ] In this case, there appears to be no authority in which the standard of review for this particular question in this particular context has been determined. Therefore, I must determine the appropriate standard. It is clear that the questions in this case do not fall within the narrow category of true jurisdictional issues. Fundamentally, what is at issue here is the mechanism of collection of premiums payable

under the WCB’s “home statute”. The questions raised are of fact and of mixed fact and law. Adding to this the nature of the WCA as social legislation, I conclude that the standard of review applicable in this case is reasonableness. [ 112 ] In assessing 136 and KP 1927, I find that the WCB did not exceed its jurisdiction, nor did it make jurisdictional errors.

Further, I do not believe the WCB made incorrect or unreasonable findings of law, fact, or mixed fact and law and I am not satisfied that it incorrectly or unreasonably interpreted its governing legislation. [ 113 ] On the evidence before me, I find that the WCB properly applied ss. 129 and 132 of the WCA in its attempts to realize against the Vehicles in satisfaction of amounts owed to it. [ 114 ] Smed's application is dismissed with costs. Heard on the 24th day of July, 2012. Dated at the City of Calgary, Alberta this 26th day of February, 2013. C. M. Jones J.C.Q.B.A.

Appearances: Kristine Smed, self-represented for the Applicant Manoj Gupta for the Respondent