Challenger Geomatics Ltd. Appellant - v. -, 2014 ABQB 712

Court of Queen ’ s Bench of Alberta Citation: Challenger Geomatics Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2014 ABQB 712 Date: 20141121 Docket: 1303 12707 Registry: Edmonton Between: Challenger Geomatics Ltd. Appellant - and - Appeals Commission for Alberta Workers' Compensation Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction . 2 Background . 3 Issues . 5 Position of Appeals Commission . 7 Position of WCB .. 7

Other Issues . 8 Standard of Review .. 9 Issues Not Raised Before the Appeals Commission . 12 Issues . 13 Forced participation in the ICP Program .. 13 Inappropriate sub-delegation . 17 Conflict with other legislation . 18 Standard of review .. 18 Unlawful discrimination . 20 Lessening competition . 21 Alternative Standard of Review .. 21 Errors of findings of fact 21 Procedural fairness – legitimate expectations . 24 Vested rights . 26 Conclusion . 29 Appendix I . 31 Appendix II . 34 Appendix III . 35 Introduction [ 1 ] This is an application for judicial review of a decision of the Appeals Commission for the Alberta Workers’ Compensation Board dated March 12, 2013 (Decision). [ 2 ] That decision held that the Applicant, Challenger Geomatics Ltd. was: Required to participate in the Industry Custom Pricing (ICP) Program for the Land and General Surveying Industry (Industry) effective 2012; and Not entitled to any Cost Relief from a 2009 claim for 2012. [ 3 ] Challenger seeks various relief on this application: A declaration that the WCB policies respecting ICP and Cost Relief and the ICP Program itself is ultra vires , invalid, or in conflict with other legislative aims; A declaration that the implementation of WCB Policies respecting ICP and Cost Relief involved a breach of natural justice and procedural fairness; A declaration that the Appeals Commission made jurisdictional errors, failed to properly apply the law or make appropriate findings of fact and mixed fact and law, based on the evidence before it; A declaration that the Appeals Commission erred in concluding that the Applicant must participate in the ICP Program and that they are not entitled to Cost Relief on the 2009 claim for the year 2012 onwards; An Order setting aside the Decision under which the Applicant was required to participate in the ICP Program and the Applicant was denied Cost Relief on the 2009 claim for the year 2012 onwards; and

An order requiring the removal of the Applicant from the ICP Program since its implementation in 2012 and the application of Cost Relief on the 2009 claim for all applicable subsequent years. Background [ 4 ] Challenger is in the business of land surveying and is part of the Land and General Surveying Industry designated by the WCB. [ 5 ] In 2009, the WCB polled that Industry as to its willingness to participate in an Industry Custom Pricing program.

ICP is an optional premium program that allows an individual industry greater flexibility over the manner in which premiums are charged to members of that industry. [ 6 ] The aim is to achieve lower premiums for employers with good performance.

Higher premium rebates are available, but there is also a risk to employers with poor performance that their premium surcharges may rise. [ 7 ] In essence, there is the opportunity to lower premiums with a corresponding risk that incidents may result in higher premiums to the employer whose employee was injured. [ 8 ] One of the functions of an ICP program is that “Cost Relief” is no longer available to industry members. Cost Relief is a premium option for employers that requires them to pay an additional premium of $0.60 per $100.00 of applicable payroll over their usual rate.

In return, the cost for employees who suffer an aggravation of a pre-existing condition or previous injury are not charged to the employer. [ 9 ] Under ICP, Cost Relief is not available. The immediate benefit is that the employer’s premium rate goes down by $0.60 per $100.00.

The risk is that if an employee has a recurrence of a pre-existing condition or previous injury, the industry member is charged with all of the costs relating to that condition or injury. [ 10 ] Following the surveying industry poll, the WCB considered that a majority of the industry (employers representing more than 50 percent of the insurable earnings of the employers in the industry) had voted in favour of the ICP Program.

As a result, the WCB implemented ICP for the survey industry effective 2010. [ 11 ] Challenger had itself voted in favour of the ICP Program, although it later disputed the authority of the employee who voted to bind the corporation. [ 12 ] On August 4, 2009, one of Challenger’s workers was injured when he misstepped and aggravated a pre-existing back injury (the 2009 Claim). [ 13 ] On December 8, 2009, Challenger requested Cost Relief from the 2009 Claim pursuant to WCB Policy 05-02

Part II – Application 3. [ 14 ] On June 23, 2010, the WCB notified Challenger that it was not entitled to Cost Relief from the 2009 Claim because it was now part of an ICP program and Cost Relief was no longer available. [ 15 ] Challenger requested a review of that decision by the Dispute Resolution and Decision Review Body.

The Review Body issued a decision on September 13, 2010 holding that Cost Relief was applicable to Challenger’s 2009 premium calculations, but the 2009 Claim would not be removed from Challenger’s 2011 experience account for that premium year and beyond. [ 16 ] Challenger then applied to be removed from the ICP Program.

By a decision dated April 4, 2011, the Review Body upheld the WCB’s position that participation by Challenger in the ICP Program was mandatory. [ 17 ] Challenger appealed the September 13, 2010 and April 4, 2011 decisions to the Appeals Commission. [ 18 ] The Appeals Commission held in its August 19, 2011 decision that: Challenger was entitled to Cost Relief on the 2009 Claim; Challenger did not contractually agree to participate in the ICP Program beginning in 2010 and it did not waive its rights to Cost Relief on the 2009 Claim (recognizing that Challenger’s vote in favour was signed by a corporate accountant who did not have the authority to bind the corporation); The Workers’ Compensation Act , RSA 2000, c W-15 and WCB Policy 07-02, Parts I and II (WCB Pricing Policies), did not authorize elimination of the employer’s vested right to Cost Relief granted under Policy 05-02; The employers who voted in favour of the ICP Program did not have the authority to waive Challenger’s vested right to Cost Relief; and

Challenger was free to withdraw from the ICP Program. [19] Following this decision, the WCB removed Challenger from the ICP Program and provided Cost Relief with respect to the2009 Claim. [20] After this had all taken place, the WCB developed a new policy on ICP, WCP Policy 07-02

Part II (Application 7) whichamended the Cost Relief Policy relating to ICP programs. It also revised the polling form for ICP votes. [21] The surveying industry was re-polled in the fall of 2011.

The poll found employers representing 55.5 percent of insurableearnings in the survey industry had voted in favour of the ICP Program. [22] By letter of December 2, 2011, the WCB advised Challenger that as a result of the poll, it was now required to become part ofthe ICP Program commencing in 2012, and that as part of the terms of the ICP Program, Cost Relief was no longer available. [23] Challenger appealed this decision to the Dispute Review Board, which issued a decision on December 9, 2011 upholding theWCB’s decision as to mandatory participation and no Cost Relief. [24] Challenger then appealed that decision to the Appeals Commission.

A hearing was held on April 12, 2012 and writtensubmissions were submitted following the hearing. [25] By its decision dated March 12, 2013, the Appeals Commission upheld the Dispute Review Board decision. [26] The Originating Application was filed on September 5, 2013 to judicially review the Decision.

Issues [27] Challenger seeks to quash the Decision on a number of bases: That the Appeals Commission erred in concluding that the WBC had jurisdiction to enact an amendment to the Cost Relief Policy whenit interpreted s. 6 of the Act; The WCB had no jurisdiction to enact an ICP program, with reference to ss. (1.1), 6, 97, 98, 113 and 137 of the Act; The ICP was enacted outside the jurisdiction of the WCB as it was effected by way of the results of a poll of the survey industryemployers instead of by the Board itself; The enactment of ICP is in conflict with other legislation, notably s. 7 of the Alberta Human Rights Act, RSA 2000, c A-25.5(discrimination on the basis of disability) and ss. 1.1 and 45 of the Competition Act, RSC 1985, c C-34 (anti-competitive behaviour); The Appeals Commission made errors of fact, namely its finding that the polling process was fair and that the WCB had been fair in itspresentation of information to the survey industry employers before the polling took place; and The Appeals Commission erred by failing to find that there had been a breach of natural justice when the ICP was implemented againstChallenger as it failed to find that there had been a breach of the doctrine of legitimate expectations because the WCB had not undergonea consultation process before amending the Cost Relief and ICP Policies. [28] Challenger cites a number of authorities supporting its arguments: 1.

Thompson Brothers (Construction) Ltd v Alberta (Workers’ Compensation Board Appeals Commission), 2012 ABCA 78, 522A.R. 118; 2. Martin v Alberta (Workers’ Compensation Board), 2012 ABCA 248, 536 A.R. 121; 3. Gahir v Alberta (Workers’ Compensation Board Appeals Commission), 2009 ABCA 59, 448 A.R. 132 (citing Committee forJustice & Liberty v Canada (National Energy Board) (1976), (SCC), [1978] 1 S.C.R. 369 (S.C.C.) and Roberts v R,2003 SCC 45 , 2003 S.C.C. 45, [2003] 2 S.C.R. 259);

4. Dunsmuir v New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, 2008 S.C.C. 9; 5. Workers’ Compensation Act, R.S.A. 2000, cW-15, s. 87(2); 6. WCB Policy Manual, Principles of Alberta Workers’ Compensation; 7. Gill v British Columbia (Workers’ Compensation Board), (BC SC), 1983 CarswellBC 755, 149 D.L.R. (3d) 678; 8. Alberta Human Rights Act, R.S,A. 2000, c A-25.5, ss. 1(1) and 7; 9. Canadian Forest Products Ltd (Polar Division) v. I.W.A. - Canada, Local 1-424, (BC LA), 1995 CarswellBC3146, 50 L.A.C. (4th) 164; 10. Carter v Canada (Armed Forces), 2001 FCT 1399, 215 F.T.R. 172; 11.

Competition Act, R.S.C. 1985, c C-34, ss. 1.1 and 45; 12. Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193; 13. Sunshine Coast Parents for French et al v Board of School Trustees of School District No. 46 (1990), (BC SC),49 B.C.L.R. (2d) 252 (S.C.), 44 Admin L.R. 252; 14. Wood v Wetaskiwin (County) No. 10, 2003 ABCA 67, 320 A.R. 286 (citing Old St. Boniface Residents Assn Inc v Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170, 75 D.L.R. (4th) 385 (S.C.C.)); 15. Czerwinski v Mulaner, 2007 ABQB 536; 16.

Workers’ Compensation Act, R.S.A. 2000, cW-15, s. 91(3); 17. Shuchuk v Alberta (Workers’ Compensation Board Appeals Commission), 2007 ABCA 213; 18. Brand v Alberta (Workers’ Compensation Board Appeals Commission), 2006 ABQB 546. Position of Appeals Commission [29] The Appeals Commission submitted a brief restricted to the role of the judge on a judicial review application, the appropriatestandard of review and a discussion of the reasonableness standard. [30] It submitted a number of authorities: 1. Parada v Alberta (Appeals Commission for Workers’ Compensation), 2011 ABCA 44, 499 AR 169; 2.

Dr Q v College of Physicians and Surgeons of British Columbia, 2003 SCC 19, 2003 SCC 19 , [2003] 1 SCR 226; 3. Schroder v Workers’ Compensation Board, 2010 ABCA 344, 490 AR 298;

4. Allsop v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2011 ABCA 323 , 29 Admin LR (5 th ) 321; 5. Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2012 ABCA 78 , 522 AR 118; 6. Gahir v Alberta (Workers’ Compensation Appeals Commission) , 2009 ABCA 59 , 448 AR 135; 7. Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190; 8. White v Alberta (Workers’ Compensation Board, Appeals Commission) , 2006 ABQB 359 , 400 AR 183; 9.

Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 SCR 654; 10. Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 SCR 616; 11. Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador , 2011 SCC 62 , [2011] 3 SCR 708; 12. Construction Labour Relations v Driver Iron Inc. , 2012 SCC 65 , [2012] 3 SCR 405.

Position of WCB [ 31 ] The WCB objected to Challenger raising several issues that had not been raised at the Appeals Commission: The WCB’s authority to issue assessment-related policies; Sub-delegation by relying on the results of the industry polling; and That ICP encourages contravention of the Competition Act . [ 32 ] It argues that the WCB has the necessary legislative authority to enact ICP under ss. 6 and 17 of the Act.

Alternatively it argues that the WCB has the authority to do so by necessary implication under s. 9 of the Act. [ 33 ] In the event the Court considers the newly-raised sub-delegation issue, the WCB argues that no unlawful sub-delegation took place because despite the results of any polling relating to ICP, any selected features “are subject to WCB review and approval”. [ 34 ] The WCB disputes that the ICP promotes contravention of the Alberta Human Rights Act by encouraging discrimination on the basis of disability, or that implementation of ICP will result in anti-competitive behaviour under the Competition Act . [ 35 ] It also denies that consultation is required concerning amendments to WCB policies.

It argues that no breach of natural justice and no breach of the legitimate expectations doctrine occurred. [ 36 ] The WCB cites: 1. Workers’ Compensation Act , RSA, 2000, c W-15 (excerpts); 2. Canada Safeway Limited v. Shineton , 2007 ABQB 773 ;

3. Vallette Estate v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 12, [2012] AJ No 9; leave toappeal to SCC denied, [2012] SCCA No 103; 4. Law Society of New Brunswick v Ryan, 2003 SCC 20, [2003] 1 SCR 247; 5. Giant Grosmont Petroleums Ltd v Gulf Canada Resources Ltd, 2001 ABCA 174, 2001 ABCA 174 , [2001] AJ No 864; leave to appeal to SCC refused [2001] SCCA No 484; 6. Skyline Roofing Ltd v Alberta (WCB), 2001 ABQB 624, [2001] AJ No 985; 7. Peace River Timothy Inc v Alberta (Workers’ Compensation Board), 2014 ABQB 156; 8.

Northeast Bottle Depot Ltd v Alberta (Beverage Container Management Board), 2000, ABQB 572. Other Issues [37] At the hearing before me, Challenger also argued that it had a vested right to Cost Relief for the 2009 accident, having paidthe required premium for Cost Relief in 2009, the year the accident to its worker took place. [38] The WCB submits that there was no vested right to Cost Relief, arguing that any issue about vested rights misconstrues theWCB’s premium policies and the way premiums are set and collected.

Standard of Review [39] From reviewing the briefs, I do not see an issue as to the standard of review.

Any issue relates to the characterization of theissue. [40] The Appeals Commission has been the subject of numerous analyses which, prior to Dunsmuir, concluded that the AppealsCommission was entitled to a deferential standard of review. [41] That was confirmed in Thompson Brothers (Construction) Ltd. v Alberta (Appeals Commission for Alberta Workers’Compensation), 2012 ABCA 78. [42] Dunsmuir is good authority that a Pushpanathan analysis generally need not be done with respect to a tribunal if one hasbeen done before.

That is also confirmed in Thompson Brothers. [43] In Gahir v Alberta (Workers’ Compensation Appeals Commission), 2009 ABCA 59, the Court of Appeal set out the standardof review pertaining to the various issues which might arise: [13] Assuming that the standard of patent unreasonableness has now been collapsed into reasonableness, the case law discloses that thefollowing standards of review have been identified for reviewing decisions of the Appeals Commission: a.

Findings of fact, credibility and mixed fact and law are reviewed for reasonableness: Alberta (Workers’ Compensation Board) v.Appeals Commission, 2005 ABCA 276 , 2005 ABCA 276, 51 Alta. L.R. (4th) 237, 371 A.R. 318, (the “Davick” decision), atparas. 72-3; Chauvet v. Alberta (Workers’ Compensation Board Appeals Commission), 2007 ABCA 155 , 2007 ABCA 155, 76Alta. L.R. (4th) 242, 409 A.R. 17 at para. 20. b.

Interpretation of workers’ compensation policies, and the application of policies to particular fact situations are reviewed forreasonableness: Buckley v. Entz Estate, 2007 ABCA 7 , 2007 ABCA 7, 71 Alta. L.R. (4th) 25, 401 A.R. 231 at para. 22.Whether a particular employee is entitled to compensation, and the level of that compensation, generally falls into this category: Alberta(Workers’ Compensation Board) v. Alberta (Workers’ Compensation Appeals Commission), 2005 ABCA 235 , 2005 ABCA235, 44 Alta. L.R. (4th) 13, 371 A.R. 62 (the “Schumaker” decision) at paras. 25-27; Chauvet at paras. 20, 28. c. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed forreasonableness, as is the application of that law to particular fact situations: Pasiechnyk v. Saskatchewan (Workers’ CompensationBoard), (SCC), [1997] 2 S.C.R. 890; Buckley at para. 33. d. True jurisdictional issues are reviewed for correctness: Lee v. Alberta (Workers’ Compensation Board, Appeals Commission), 2007ABCA 225 , 2007 ABCA 225, 79 Alta. L.R. (4th) 298, 417 A.R. 370 at para. 18.

[44] This was confirmed in Thompson Brothers as well. [45] Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador, 2011 SCC 62 provided some much-neededclarification of the law following Dunsmuir. The Supreme Court of Canada’s conclusions on reviewing a tribunal’s reasons are found inparas 14 – 16: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis forquashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one forthe result (Donald J. M.

Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at s.12:5330 and12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whetherthe result falls within a range of possible outcomes.

This, it seems to me, is what the Court was saying in Dunsmuir when it toldreviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and tooutcomes” (para. 47). [15] In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).

This means that courts shouldnot substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing thereasonableness of the outcome.’ [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge wouldhave preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-makeris not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382, atp. 391).

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [46] Inadequate reasons are a procedural fairness issue, which, along with breaches of natural justice, are reviewed for correctnessas held in Gahir v Alberta (Workers’ Compensation Board Appeals Commission), 2009 ABCA 59. The adequacy or inadequacy ofreasons must now be analyzed following the Newfoundland Nurses case.

That case holds that the inadequacy of reasons is not a “stand-alone” ground for judicial review of administrative decisions. [47] This application involves the vires of policies of the Workers’ Compensation Board.

The Court of Appeal held in White vAlberta (Workers’ Compensation Board, Appeals Commission), 2006 ABQB 359 that the standard of review applicable to the validityor vires of a policy is correctness. [48] That has been refined in Parada v Alberta (Appeals Commission for Workers’ Compensation), 2011 ABCA 44 and ValletteEstate v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 12, leave to appeal to the SCC refused,[2012] SCCA No 103. [49] In Parada, the Court of Appeal held that the jurisdiction of the Appeals Commission did not extend to the assessment of thereasonableness of a WCB policy so long as the scope of the policy falls within s. 6 of the Act. [50] In Vallette Estate, the Court of Appeal referenced Gelinas v Northwest Territories and Nunavut (Workers’ CompensationBoard), [2002] NWTJ No 100 (NWTSC) at para 22: Since the legislation does not say exactly how the Board is to go about making the estimate, except that it is to be made from the natureand degree of disability by reason of the injury, the Board is left with discretion to develop a policy in making the estimate in those caseswhere a worker is entitled to compensation for a permanent partial disability.

In other words, the legislation leaves it open to the Board todecide how it will go about making the required estimate. [51] The parties all agree that the basic reasonableness standard of review is found at para 47 of Dunsmuir: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards ofreasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

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

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [52] Correctness is discussed at para 50: [50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotesjust decisions and avoids inconsistent and unauthorized application of law.

When applying the correctness standard, a reviewing courtwill not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.

Issues Not Raised Before the Appeals Commission [53] The WCB appropriately objects to any review based on arguments not raised before the Appeals Commission. As argued, it issomewhat unfair to overturn or vary a decision on a point not considered by the tribunal or raised before them. [54] In particular, the WCB cites Canada Safeway Limited v Shineton, 2007 ABQB 773 at pages 6 and 7: The courts in this province have also shown reluctance to hear arguments on judicial review if those arguments were not put before thetribunal. The issue was squarely before our Court of Appeal in Legal Oil and Gas Ltd. v.

Alberta (Surface Rights Board) 2001 ABCA160 , (2001), 303 A.R. 8, 2001 ABCA 160. The Court’s comments at paras. 12, 13 and 15 are particularly relevant to this case: While we accept that an appellate court may, in its discretion, decide questions of law not raised by the parties at trial, this Court will notdo so unless the matter is a pure question of law requiring no additional evidence to make the decision.

Further, when the Court isexercising its powers of judicial review of a decision of an expert Board or tribunal, barring exceptional circumstances, generally theCourt will not decide questions not raised before the Board or tribunal. ...The jurisdiction of this Court on a judicial review appeal is generally limited to a review of errors of law or jurisdiction of the board inquestion and the Chambers Judge. The Court will not generally decide the questions in the first instance. The issue ... requires a detailed consideration not only of the law but also policy and the facts in this case.

This is not a decision whichshould be made in the first instance by this Court and we decline to do so. [55] For that reason, and in light of the above case law, I do not consider it appropriate for this Court to address the issue ofwhether the information in question here constitutes “personal information” for purposes of PIPA. Having said that, I do not wish to betaken as endorsing the Commissioner’s apparent view that the information was “personal information”; I merely decline to interfere withit in these circumstances.

I leave that issue as an open question to be dealt with squarely b the Commissioner in an appropriate case. [56] Despite this admonition, the WCB fully argued the three points it objected to: The absence of jurisdiction to make assessment policy; Improper sub-delegation of authority by relying on the industry’s vote; and Conflicts with the Competition Act. [57] In this case, the absence of jurisdiction is related to the jurisdictional arguments raised before the Appeals Commission, whichwere dealt with by them. This is a pure jurisdictional argument which is determined here on the correctness standard.

While it wouldhave been preferable to have the Appeals Commission specifically deal with this argument, it is so interrelated with the other jurisdictionargument that it would be helpful for me to deal with it here. [58] As for the improper sub-delegation argument, it is again a question of law to be reviewed on the correctness standard. Since itwas fully argued here, it is appropriate to deal with it in this decision rather than invite Challenger to apply for reconsideration before theAppeals Commission.

That would presumably be the alternative which would cause unnecessary delay in this already dated matter. [59] The alleged conflicts with the Competition Act are closely related to Challenger’s arguments under the Alberta Human RightsAct. I have concluded that these arguments are questions of law to be reviewed on the correctness standard, so will proceed to deal withthem here. Issues Forced participation in the ICP Program [60] Challenger argues that the WCB had no jurisdiction to enact an amended Cost Relief Policy to change the participants’eligibility to Cost Relief.

This is a true question of jurisdiction and attracts a review standard of correctness. [61] Following White, Parada and Vallette Estate, the issue for me is whether the amended policy falls within the WCB’s powersunder s. 6 of the Act. [62]

Section 6 provides: Duties of board of directors 6 The board of directors (

a) shall

(

i) determine the Board’s compensation policy, (ii) review and approve the programs and operating policies of the Board, and (iii) consider and approve annual operating and capital budgets of the Board, and (

b) may enact bylaws and pass resolutions for the conduct of the business and affairs of the Board. [ 63 ] The Appeals Commission dealt with the issue as to whether the policy was vires the WCB at paragraphs 54 to 65 of its decision, which are reproduced here as Appendix I. Its decision on the issue is found at para 65: [65] Current case law confirms the WCB Board of Directors’ broad legislated powers to determine compensation policy. The WCB is empowered to make policy by clear legislative provisions. The Appeals Commission is required to apply policy by equally clear legislative provisions.

The case law identified above sets out the limits of the Appeals Commission’s jurisdiction to hear and decide compensation matters. Once it is accepted that the WCB had the statutory ability to implement the ICP program, the issue of the reasonableness of the program is not a matter for Appeals Commission contemplation. The panel finds that the policy amendments related to ICP and cost relief were within the Board’s powers and do not conflict with the. They fall within the policy-making authority granted to the WCB by

section 6 of the. Accordingly, the panel will not undertake further analysis of the vires of the WCB policy in the absence of identified court decisions urging us to do so. [ 64 ] Challenger argues that assessment policy is absent from the areas of authority provided in para 6.

While the WCB has express authority to determine “compensation” policy, the power to make assessment policy is not provided for. [ 65 ] Further, Challenger argues that even if assessment policy can be set using ss 97, 98 and 113: 1981 CW 16 s. 90; 1984 c68 s26 : 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.

(2) For the purposes of assessments under this Act, the Board may (

a) establish classes and subclasses of industries, (

b) establish differentials and proportions in the rates as between the different kinds of employment or types of coverage in the same class or subclass as the Board considers proper, and (

c) where any particular industry is shown to be so circumstanced or conducted that the hazard is greater or less than the average of the class or subclass to which the industry is assigned, impose on the industry a special assessment to correspond with the hazard. 1981 cW-16 s91; 1984 c68 s27 Assessment procedure 98(1) An assessment may be general as applicable to any class or subclass or special as applicable to any industry or part or department of an industry.

(2) It is not necessary that assessments on employers in a class or subclass be uniform, but they may be fixed, graded or varied by the Board in relation to the hazard or other circumstances of the operations of the employer. Rate modification 113 If the Board considers it appropriate, it may adopt systems of rate modification in accordance with the guidelines it establishes in relation to the employer’s accident experience record and may modify the assessment rate or grant a credit or rebate to the employer or levy a surcharge on the employer, as the case may be. [ 66 ] There is no authority or power to enact an ICP. Absent that express power, the WCB did not have jurisdiction to enact the

policy. [ 67 ] Assessments may be based on experience records (following s. 113) and hazards, but not the individual characteristics of the workers themselves. [ 68 ] Since express authority with respect to an ICP is absent, any power to fill in “gaps” must be aligned with the Act. [ 69 ] Challenger argues that ICPs are in conflict with the general scheme and purpose of the Act as described in Resolution 2013/08/30: The principles contained in Sir William Meredith’s 1913 Final Report (see Appendix

C) are the foundation of workers’ compensation in Alberta. Since 1913, these principles have evolved to reflect changing conditions. The principles are intended to be a “living document” and will continue to evolve as circumstances necessitate. Today, the Workers’ Compensation Board - Alberta operates according to the following principles, which apply to all workers and employers protected by the Alberta Workers’ Compensation Act . These principles provide direction to management in the development of policy and establish a frame of reference for the Board of Directors for policy decision-making.

The principles also provide staff, management, our clients and the general public with guidance on the

interpretation and application of policy. The principles are intended to provide the “why” or philosophical basis behind the policies.

The articulation of principles provides transparency and points of reference for all stakeholders so that policy decisions of the Board of Directors can be better understood. [ 70 ] Further, Cost Relief is expressly provided for in s. 87(2) and s. 95 of the Act: 87(2) If a worker refuses an employer’s offer of transportation under subsection (1) and the Board is satisfied that the worker’s refusal has prolonged or will prolong the recovery period, the Board may relieve the employer’s accident experience record of the additional costs resulting from the refusal. 95(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. [ 71 ] Challenger argues that removing Cost Relief for the purposes of an ICP Program contravenes the above provisions. [ 72 ] In its argument, the WCB points out the inconsistency in Challenger’s submission on the invalidity of the ICP program.

ICP is intended to provide relief to employers in an industry that opts to accept some risk of higher premiums in certain circumstances for lower premiums in others.

The Cost Relief program that Challenger seeks to preserve is a program providing relief to employers who pay an additional premium to manage the risk of certain types of loss. [ 73 ] In essence, Challenger wants to take advantage of one Cost Relief program while objecting to the validity of another. [ 74 ] The Board of Directors is required to determine compensation policy, review and approve programs and operating policies of the Board, and to consider and approve annual operating and capital budgets. [ 75 ] The Board is required to assess employers under s. 87 and is also required, under ss 91(3) and (4) to raise enough money to fund its operations:

(3) The Board must ensure that there is sufficient money available in the Accident Fund for the payment of present compensation and future compensation as estimated by the Board’s actuary.

(4) In addition to the funds referred to in subsection (3), the Board may maintain a reserve fund sufficient to meet costs arising from extraordinary events that might otherwise (

a) unfairly burden employers in the short term, or (

b) prevent full funding of the Accident Fund. [ 76 ] There are no limitations in the Act on the Board’s policy-making abilities relating to compensation policy; nor are there any limitations in the Act on the Board’s policy-making abilities relating to how the Board is to set premiums under s. 87 or ensure that it has sufficient funds to pay claims under s 91(3).

[77] The WCB refers to s 17, which is a privative clause: 17(1) Subject to

section 13.1, the Board has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questionsarising under this Act or the regulations and the action or decision of the Board on such matters and questions is final and conclusive, andis not open to question or review in any court. [78] It is a stretch to suggest that

section gives the Board additional policy-making powers, but in any event, I do not consider thatWCB needs to attempt to rely on that section. [79] In my view, sufficient power is found in ss 6 and 91 to support policies relating to the manner in which the WCB goes aboutsetting assessments and ensuring it raises sufficient premiums to fund its activities. [80] While it would have been easy for the legislators to insert a provision in s. 6 expressly authorizing the Board to “determine theBoard’s assessment policy”, I find that power, if not express, is given by necessary implication to the Board of Directors. [81] If the WCB has the power to implement a policy such as Cost Relief, it has the power to take it away.

Similarly, the WCB canmake policies relating to how it goes about assessing employers and offering programs to employers that may benefit some employerswhile still ensuring that the WCB collects sufficient funds to fulfill its obligations. [82]

Section 17 makes it clear that there is no appeal from the Board’s policy-making function. That is emphasized in s 13.2(6)relating to appeals to the Appeals Commission. That

section provides that the Appeals Commission “is bound by the board of directors’policy relating to the matter under appeal”. [83] Giant Grosmont Petroleums Ltd v Gulf Canada Resources Ltd, 2001 ABCA 174; leave to appeal to SCC refused, [2001]SCCA No 484, provides ample support for statutory

interpretation to include implied powers, noting (in a quote from Maple LodgeFarms v Canada, (SCC), [1982] 2 SCR 2 at page 7): “the courts should wherever possible, avoid a narrow technicalconstruction and endeavour to make effective the legislative intent as applied to the administrative scheme involved.” [84] My conclusion on this is supported by Skyline Roofing Ltd v Alberta (WCB), 2001 ABQB 624 and Peace River Timothy Incv Alberta (Workers’ Compensation Board), 2014 ABQB 156. [85] As a result, I find that the impugned policies are not ultra vires the WCB.

The Appeals Commission was correct in itsdetermination of this issue. Inappropriate sub-delegation [86] The issue here is whether the WCB delegated its authority to classify an industry to another body.

Here, the objection is thatthe WCB abrogated its decision in this regard to the employers in the surveying industry by holding a vote and implementing the ICPProgram following a vote in favour of doing so. [87] This issue also raises a question of true jurisdiction. [88] As held in Gill v British Columbia (Workers’ Compensation Board), (BC SC), 1983 CarswellBC 755(BCSC) it is the Board itself which is required to exercise the executive, administrative and judicial functions of the Workers’Compensation Board.

The WCB does not argue against this principle and acknowledges that the holder of a power which entails theexercise of a discretion may not confer the exercise of that power on some other person or agency. The WCB cites Forget v Quebec(Attorney General), (SCC) and Northeast Bottle Depot Ltd v Alberta (Beverage Container Management Board), 2000ABQB 572. [89] Case law indicates that there must be some supervisory control by the authority itself over the person or agency (committee). [90] The WCB notes that the ICP Policy discusses the requirement of a majority vote.

The full policy on participation in an ICPprogram states:

3. What is required to participate in Industry Custom Pricing (ICP)? In order for an industry to participate in ICP, the majority of the industry (over 50% of insurable earnings represented by employers within the industry) must agree to the changes. Employers in an industry are polled on the ICP options. With a majority vote, all employers in the industry participate in ICP regardless of how they voted individually. Performance-based pricing programs are an insurance feature funded by the entire industry and individual employers can only access features that are funded by their industry group.

Any change in an industry’s pricing program will be implemented in the next available rate year. In all cases, the selected features of an industry’s ICP are subject to WCB review and approval. [ 91 ] The concluding sentence states: In all cases, the selected features of an industry’s ICP are subject to WCB review and approval. [ 92 ] With that proviso in effect, it appears that a majority vote is only the beginning of an ICP program. The program features themselves must be approved by the Board. That, in my view, is sufficient supervisory control to prevent the application of delagatus non potest delegare .

Conflict with other legislation Standard of review [ 93 ] With respect to the standard of review for the Appeals Commission’s conclusion that the ICP does not conflict with other legislation, Challenger argues that the correctness standard applies as the Appeals Commission was interpreting its home legislation in the context of other legislation. It has no expertise with the Alberta Human Rights Act and the Competition Act , so there should be no deference to its

interpretation. [ 94 ] Challenger describes the extricable legal error as the

interpretation of the Act in conjunction with other legislation, so the Appeals Commission was not just interpreting its home statute. It cites Alberta (Workers’ Compensation Board) v Appeals Commission , 2005 ABCA 276 .

It also cites Shuchuk v Alberta (Workers’ Compensation Board Appeals Commission) , 2007 ABCA 213 and Brand v Alberta (Workers’ Compensation Board Appeals Commission) , 2006 ABQB 546 . [ 95 ] Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 , holds that where an administrative tribunal has interpreted or applied its home statute, it is presumed that the appropriate standard of review is reasonableness (at para 39). [ 96 ] Nor-Man Regional Health Authority Inc. v Manitoba Association of Health Care Professionals , 2011 SCC 59 , recognizes the competence of some administrative tribunals (there, labour arbitrators) to apply common law and equitable doctrines. [ 97 ] The issue on the standard of review here is whether the Appeals Commission was interpreting its home statute, which entitles it to deference, or whether it was considering questions of general law or of general application, which entitles it to less deference. [ 98 ] As noted by Ross J in Zakhary v College of Physicians and Surgeons of Alberta , 2012 ABQB 623 , a deferential standard will generally apply, unless the

interpretation falls within the very narrow category of questions to which the correctness standard continues to apply (citing Alberta v Alberta Teachers’ Association at para 34). She described those exceptional cases as being “constitutional questions, questions of law that are of central importance to the legal system as a whole, and true questions of jurisdiction.” (at para 11). [ 99 ] The extricable issue here is whether the Alberta Human Rights Act and the Competition Act , or either of them, essentially nullify the WCB’s ICP policy. [ 100 ] On this issue, I do not see that the Appeals Commission has any particular expertise or experience, and its

interpretation of the primacy of other legislation is a question of general law, and may have a broader application than within the workers’ compensation field. [ 101 ] There is no privative clause at play here. [ 102 ] The question is not one of purely interpreting the “home statute”. The question may be boiled down to whether the WCB has the jurisdiction to ignore other legislation (the provincial Human Rights Act and the federal Competition Act ). [ 103 ] This has at least a quasi-constitutional aspect to it.

[104] There is nothing in the materials to suggest that the Appeals Commission has any special expertise in this area. [105] Thus all of the relevant factors to be considered under Dunsmuir lead to a conclusion that no deference is appropriate here. [106] This is, in my view, one of those limited or exceptional circumstances where questions of

interpretation are to be reviewed onthe correctness standard. [107] This is similar to the approach taken in Canada (Minister of Citizenship and Immigration) v Bui, 2012 FC 457.

Unlawful discrimination [108] Challenger argues that the ICP Program conflicts with other legislation, suggesting that these conflicts “highlight the lack ofjurisdiction to implement the program”. [109] Challenger cites the Alberta Human Rights Act in support of this argument. [110] Under the Alberta Human Rights Act, Challenger says that removing Cost Relief as is required under an ICP program providesan incentive for employers to discriminate against workers with a pre-existing disability or medical condition. [111]

Section 7, which prohibits discriminatory hiring practices regarding persons with disabilities, is referenced. [112] According to Challenger, removal of Cost Relief by an ICP program may encourage employers without access to Cost Relief todiscriminate against persons with disabilities as the new employer will be fully liable for aggravation to a pre-existing condition in theevent of a workplace accident. [113] That is an interesting and somewhat compelling argument, although Cost Relief is not mandatory for employers other than thosewho participate in an ICP program. [114] However, no authority is provided for the proposition that a policy which could encourage some employers to breach their legalduties under the Alberta Human Rights Act is invalid. [115] Challenger notes that s 1(1) of the Alberta Human Rights Act states that: 1(1) Unless it is expressly declared by

an Act of the Legislature that it operates notwithstanding this Act, every law of Alberta isinoperative to the extent that it authorizes or requires the doing of anything prohibited by this Act. [116] While it is clear that the Workers’ Compensation Act contains no such declaration, there is nothing in the ICP which “authorizesor requires” any unlawful discrimination. Employers may choose to discriminate if they are part of an ICP, and they may choose todiscriminate if they have not purchased Cost Relief. In either case, they would violate the Alberta Human Rights Act.

Nothing in theWorkers’ Compensation Act authorizes or could otherwise be seen to condone or encourage such unlawful conduct. [117] As a result, I do not see that the concerns about unlawful discrimination have any effect on the validity of policies and programsthat are on their face neutral concerning hiring practices.

The fact that there may be an adverse-impact discrimination is the possibleresult of unlawful conduct on the part of employers under other legislation, which is remedied by taking proceedings against thoseemployers, not the WCB. [118] Canadian Forest Products Ltd (Polar Division) v IWA-Canada, Local 1-424, (BC LA), 1995 CarswellBC3146 (BC Arbitration), deals with the duty to accommodate and undue hardship, not jurisdictional or legislative validity issues. [119] Carter v Canada (Armed Forces), 2001 FCT 1399 is a damage case and is of no assistance to Challenger here. [120] These cases demonstrate available remedies against employers who discriminate and are of no assistance to Challenger inattacking the Board’s ICP Policy or programs.

Lessening competition [121] Under the Competition Act, s. 45 makes it an offence to lessen competition. Challenger notes that the voting system for the ICPwas based in insurable earnings. Thus the employers with the highest insurable earnings had greater voting capacity. Challenger arguesthat such employers, who have “more economic power” can select the premium pricing mechanism most effective for its businesses. Italso argues that under such a voting system, a business could inflate its payroll to control the vote and after the vote, adjust its payrolldown. [122] I do not find either argument persuasive.

Firstly, there is no basis to conclude that employers with higher payroll are likely tochoose one pricing mechanism over another, or that any particular pricing mechanism is advantageous to larger employers than tosmaller employers. [123] Secondly, evidence presented at the hearing before the Appeals Commission showed that Challenger itself is one of the largeremployers in the surveying industry, by payroll. [124] Thirdly, there is no evidence to suggest that any employer inflated its payroll to help push through the ICP. [125] These are all hypothetical arguments that do not satisfy me that even if there was substance to them, they would adversely affectcompetition.

Under the Workers’ Compensation Act and its programs, what adversely affects an employer’s competitiveness is its

accident experience. Employers with a poor record pay higher premiums and fail to achieve premium rebates, regardless of whether they are able to purchase Cost Relief or not. [ 126 ] Challenger has not demonstrated that either the ICP policy or the voting system for ICP contravenes the Competition Act . Even if it did, that is not a basis to strike down the policy. The Competition Act is not paramount legislation. [ 127 ] The Appeals Commission made no error in its conclusions on these grounds.

Alternative Standard of Review [ 128 ] If I am myself in error as to assessing the appropriate standard of review on these issues, having found them to be correct in any event, it is obvious that the Appeals Commission’s decision on these matters was reasonable. Unreasonableness is not made out on the fact (as alleged by Challenger) that the mandatory elimination of Cost Relief under an ICP program is unique to Alberta. The WCB of Alberta is not bound by the policies (or legislation) of WCB’s in other jurisdictions.

Errors of findings of fact [ 129 ] Challenger acknowledges that any errors of fact or mixed fact and law attract the reasonableness standard of review. [ 130 ] It is worth noting here that the authorities cited by the Appeals Commission strongly caution the reviewing judge from reweighing the evidence heard by the tribunal and instead perform its review in accordance with the limitations imposed by the reasonableness/deference standard. [ 131 ] Challenger argues that the Appeals Commission erred by finding that the polling process was fair.

Challenger argues that the ICP documents demonstrate “a slant in favour of ICP” because they: state that participation will result in the Cost Relief levy being removed, without explaining the ramifications of the removal of Cost Relief; list only one disadvantage – that employers with higher claim numbers may pay more – without referring to the removal of the benefits of Cost Relief; fail to explain that the removal of Cost Relief may impact the costs of the claim attributed to the employer; suggest that Cost Relief may reduce an employer’s accountability to the industry without referencing any negative ramifications; suggest that the Cost Relief policy is not being removed without indicating that it would be removed in an ICP; promote removal of Cost Relief as a rate reduction measure without describing the potential impact; and fail to point out that opting out cannot occur for at least three years. [ 132 ] Further, Challenger argues that the WCB’s information letter sent to survey industry employers in advance of the vote fails to explain the ramification of Cost Relief. [ 133 ] Challenger also argues that evidence called by them at the hearing showed that the third and fourth largest employers in the industry did not have a good understanding of the consequences of an ICP program.

A Challenger witness testified that contrary to WCB publications, he was unable to control or mitigate costs associated with pre-existing conditions. [ 134 ] Taking all of these factors into consideration, Challenger submits that the Appeals Commission’s finding that the WCB was fair in its polling and presentation of information is unreasonable. [ 135 ] If a finding of unfair polling or unfair presentation of information had been found, that would amount to a breach of natural justice or procedural fairness. [ 136 ] Obviously deference is owed to the Appeals Commission on it fact findings. [ 137 ] Their decision on these issues is found at paras 79-86 of the Decision, which is reproduced as Appendix II. [ 138 ] Their actual finding is at paras 82-84:

[82] We put significant weight on the WCB witness’ evidence confirming that a majority of the payroll in the employer’s industry choseto participate in ICP in 2012. We do so as the employer has not provided any documentation showing what difference, if any, seasonalemployers would have had on the outcome of the polling. The panel understands the employer does not question the polling percentagesand numbers identified by the WCB witness with respect to the 2011 industry voting on ICP.

Therefore, the WCB received the industry’smandate to institute ICP for the employer’s industry commencing in 2012 in accordance with policy. As a consequence of the majorityvote, all employers in the employer’s industry participate in ICP regardless of how they chose to vote. [83] The panel finds the WCB followed a fair process in conducting polling of the employers in the industry in accordance with Policy07-02, Application 7. Being fair and impartial necessitates advising employers of the pros and cons of ICP and the panel finds that theWCB did so.

The WCB published an ICP frequently asked questions document to assist employers in understanding the pros and cons oftheir industry participating in this program. The fact that cost relief was no longer applicable to this industry in 2012 is clearly noted onpage 7 of that document. A review of the information package sent out to employers indicates that it was consistent with the policieswhich became effective on December 1, 2010.

In this case, the employer voted “no” because ICP was not a beneficial pricing programfor them based on their current claims circumstances. [84] We find the WCB provided information to employers indicating the effect of ICP on cost relief. [139] There is nothing in the decision which suggests that the Appeals Commission’s conclusion was not within the range ofreasonable, acceptable outcomes. It had the benefit of reviewing the publications themselves, in the context of all issues concerning ICP.ICP involves more than the absence of Cost Relief. That is only one of many factors.

This appeal focuses on the Cost Relief issue, whichis the key issue to Challenger. [140] With the benefit of hindsight, it may be that more could have been done to explain the impact of ICP on Cost Relief and thepotential ramifications to employers.

Nevertheless, that does not negate that the Appeals Commission was entitled to review thematerials and arguments and come to its own conclusion as to the fairness of the WCB’s materials on ICP and the polling process. [141] Challenger argues that the evidence presented to the Appeals Commission showed that industry members were not informed asto the ramifications of voting in favour of the ICP and the resulting loss of claim relief.

That evidence came from Challenger’s ownwitness, and while it was the only evidence on the issue, testimony from one of 70 or so employers in the industry is not convincing onthe point and does not make the Appeals Commission’s decision unreasonable. [142] Challenger also argues that the WCB publications show a bias in favour of ICP. The Appeals Panel found to the contrary at para82. Their decision was presumably based on their knowledge of and

interpretation of WCB policies and procedures, and their owninterpretation of WCB-issued publications.

That was a finding open to them, and is not reviewable simply because there are arguments tothe contrary. [143] In any event, so long as the WCB puts out accurate information so that employers can make an informed decision, I do not seethat encouraging employers to consider a certain option, or providing materials that suggest a slant in favour of a certain decision, isoffensive in any way. [144] I find no unreasonableness in the Appeals Panel’s decision as to the fairness of the polling process, or the quality of theinformation provided on ICP to employers.

Procedural fairness – legitimate expectations [145] Challenger argues that its legitimate expectations as to prior consultation were not met by the WCB. It points to previous policyconsultations. It cites standard authorities discussing the doctrine of reasonable expectations, including Wood v Wetaskiwin (County) No.10, 2003 ABCA 67.

In that case, the Alberta Court of Appeal accepted the concept that “legitimate expectations may arise where a partyhas been led to believe that his or her rights would not be affected without consultation.” (at para 18). [146] The doctrine comes out in cases such as Sunshine Coast Parents for French et al v Board of School Trustees No. 46, (1990), (BC SC), 49 BCLR (2d) 252 (SC) and Czerwinski v Mulaner, 2007 ABQB 536 [147] Challenger references para 18 of the WCB Policy Development and Consultation Process Guideline: 18. Policy Development.

The WCB is committed to a transparent policy development process, as follows: The Board of Directors and the Policy Committee determine the need for and nature of consultation. Stakeholder consultation normallyincludes public consultation, but may include, or consist only of, expert consultation. As well, depending on the nature of the issue,WCB-Alberta may convene an in-person meeting. Consultation is not undertaken for policy changes that are: • Inconsequential, which refers to policy amendments that do not affect the rights or responsibilities of either injured workers oremployers; or

• Legal imperatives, which refers to policy amendments in which the Legislature or justice system has directed that a change in policy bemade. As well, consultation is not normally undertaken for issues which have already been the subject of a previous consultation. [148] The WCB points out that Policy G-4 provides: When policies are reviewed, the impact on both workers and employers is considered.

Depending on the issue under review, the Boardof Directors may also undertake a formal stakeholder consultation process. [149] The doctrine of legitimate expectations is part of procedural fairness, and thus is dealt with on the correctness standard. [150] Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, holds that“procedural fairness is about participation in decision making in a manner appropriate to the context of the decision” (at p 837). [151] In Canadian Union of Public Employees (CUPE) v Ontario (Minister of Labour), 2003 SCC 29, Binnie J stated for themajority: 131 The doctrine of legitimate expectation is “an extension of the rules of natural justice and procedural fairness”: Reference re CanadaAssistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, at p. 557.

It looks to the conduct of a Minister or other publicauthority in the exercise of a discretionary power including established practices, conduct or representations that can be characterized asclear, unambiguous and unqualified, that has induced in the complainants (here the unions) a reasonable expectation that they will retaina benefit or be consulted before a contrary decision is taken. To be “legitimate”, such expectations must not conflict with a statutoryduty. See: Old St. Boniface Residents Assn. Inc. v.

Winnipeg (City), (SCC), [1990] 3 S.C.R. 1170; Baker, supra;Mount Sinai, supra, at para. 29; Brown and Evans, supra, at para. 7:2431.

Where the conditions for its application are satisfied, the Courtmay grant appropriate procedural remedies to respond to the “legitimate” expectation. 132 The Court of Appeal concluded, at para. 105, that “the Minister interfered with the legitimate expectations of the appellants andother affected unions, contrary to the principles and requirements of fairness and natural justice” and ordered the Minister to restrict hisappointments to the s. 49(10) roster. 133 In my view, with respect, the conditions precedent to the application of the doctrine are not established in this case.

The evidence ofpast practice is equivocal, and as a result the evidence of a promise to “return to” past practice is also equivocal. What Minister ElizabethWitmer meant by “a return to the sector-based system of appointing arbitrators” (Standing Committee on Resources Development, supra,at p. R-2577), and what she was understood by the unions to mean, depends on what they now say were their respective priorunderstandings of “the system”. The Minister says the “sector-based system” was the HLDAA, including the broad latitude afforded tohim by s. 6(5).

The unions say the “sector-based system” was the s. 49(10) roster. [152] It is clear from Policy G-4 that the WCB is not required to have a stakeholder consultation on every issue, let alone anyparticular issue. The stated policy is discretionary. The materials submitted to the Appeals Commission showed that consultationoccurred on a number of issues, but not all. [153] The evidence before the Appeals Commission was equivocal on the subject. The WCB’s evidence was that a number of policieshad been implemented without consultation, and its policies did not require consultation.

The decision as to whether to consult or not, orwho to consult with, was left to the WCB to be determined in each individual case. [154] Brinks Canada Ltd v Canada Council of Teamsters, [1995] FCJ No 1114 (FCA) holds that “the applicant carries a significantonus to prove that a procedure has been a regular practice of the Board over an extended period of time.” (at para 24). [155] The Appeals Commission was correct in finding that no consultation was required and thus there was no breach of the doctrineof reasonable expectations.

I would observe that one of the best stakeholder consultations on policy is a vote of stakeholders as towhether they want to be bound by a policy. That was the case here: the WCB represented that it would not impose an ICP on an industrywithout a favourable vote. A favourable vote was a precondition to the Board deciding whether or not to implement ICP in that industry. [156] Challenger’s rights were not affected when the WCB adopted the ICP Policy.

That Policy did not affect Challenger’s rights untilChallenger’s industry voluntarily agreed to opt in to the Program and be bound by it. [157] I make the same finding regarding policy amendments. Challenger objects to the amendment resulting in the second vote of thesurvey industry. Challenger’s rights were not affected until a majority of the insurable earnings in the industry voted in favour of the ICPprogram.

No consultation was required, and by virtue of the WCB’s policies and past practices, there was no reasonable expectation onthe part of Challenger that there would be a formal industry consultation before this particular policy revision. [158] This ground of appeal is not made out. Vested rights [159] Challenger raised the issue of vested rights which had not been specifically addressed in its written argument, but had beenbefore the Appeals Commission. Because the WCB had not responded to this ground of appeal in its written argument, I asked counselfor any written submissions they wished to make on the subject.

Challgenger referenced written submissions submitted to the Appeals

Commission on this issue, as well as the WCB’s written response in September, 2012. [160] The WCB provided written submissions on June 26, 2014, referencing: Scott v The College of Physicians and Surgeons of Saskatchewan, (1992), (SK CA), 95 DLR (4th) 706 SKCA) and Finlay v Alberta Pharmaceutical Association, 2000 ABCA 119. [161] I note that vested rights were dealt with by the Appeals Commission in a somewhat parallel decision, RS Line Control Ltd vWorkers’ Compensation Board, Decision No 2012-948. [162] Vested rights are discussed in Scott v College of Physicians and Surgeons of Saskatchewan.

In that case, Vancise J identifiedtwo criteria which may be used to determine what a vested right is. The first criteria is that “one must establish a tangible or particularlegal right, the right cannot be abstract, it must be more than a possibility, more than a mere expectation” (at p 727). [163] The second criteria is that “the right was sufficiently exercised or solidified before the repeal of the enactment to justify itsprotection (at p 727).

These tests were affirmed by the Supreme Court of Canada in Dikranian v Quebec (Procureur General), 2005SCC 73. [164] As for the second criteria, the question might be stated as whether Challenger’s payments for Cost Relief constituted a legalright or entitlement to Cost Relief in the future. Challenger had purchased Cost Relief for some time so if it was a vested right, it mayhave been sufficiently solidified. [165] The nature of Cost Relief and whether it is a “tangible or particular right” is more difficult to determine.

Brunet v Town ofBeaconsfield, (SCC), [1923] 4 DLR 378 (SCC) is cited as authority that a vested right need not come from

an act orregulation. In that case, the right was argued to come from a municipal by-law. No authority is cited for the proposition that policy canconstitute a vested right. [166] Gustavson Drilling

(1964) Ltd. v Canada (Mininster of National Revenue), (SCC), [1977] 1 SCR 271 held thata taxpayer was unable to take advantage of a statute which was later repealed (at pp 282-283). [167] Dickson J (as he then was) held that it was necessary to allow legislation to “conform to changing social needs andgovernmental policy” (at pp 282-283). [168] In his

article Administrative Tribunals and the Law, 1988-89 s. Can J Admin L & Prac 263 at 279, Professor H.N. Janischwrote: Quasi-law (policy) does not, in and of itself affect legal rights…while internally binding on government officials, it does not createexternally enforceable rights.” [169] Dikranian was cited as holding that there is a presumption against interference with vested rights. That is a principle ofstatutory

interpretation, not a principle of law.

Dickson J stated at p 282 of Gustavson Drilling: The rule is that a statute should not be given a construction that would impair existing rights as regards person or property unless thelanguage in which it is couched requires such a construction.” [170] Clear legislative intent may interfere with vested rights. [171] That is also clear from Finlay v Alberta Pharmaceutical Association. [172] In my view, Challenger lost its right to pay for Cost Relief not by policy change or quasi-legislative change, but rather when theindustry it is part of for WCB purposes voted to participate in an ICP.

WCB policy permitted participation in Cost Relief; another WCBpolicy provided that Cost Relief would not be available to members of an ICP. [173] The policies were expressly revised after the Appeals Commission determined that the policies at issue in ChallengerGeomatics v Workers’ Compensation Board, Appeals Commission Decision No 2010-737, did not clearly eliminate Challenger’s vestedright to Cost Relief. [174] The Appeals Commission’s treatment of this issue is found at paras 87 to 92, which is reproduced here as Appendix III. [175] Its conclusion is found at para 90: [90] We reached this conclusion on the following rationale: [90.1] The employer is entitled to cost relief in relation to the claims because the policy criteria established by Policy 05-02 for awardingcost relief was satisfied in each case. [90.2] Policy 07-02 cannot be interpreted to eliminate the employer’s vested entitlement to cost relief.

We relied upon the presumptionagainst interfering with vested rights and the absence of clear and unequivocal language in statute or policy permitting the WCB toeliminate a vested right to cost relief. [90.3] The MDAA lacked the authority to waive the employer’s right to cost relief or to include the employer within the cost reliefoption for the purpose of industry custom pricing without the employer’s express agreement.

[90.4] Industry custom pricing does not apply to the employer for the purpose of establishing its 2008 premium rates because the cost relief option does not apply to the employer in that year. [ 176 ] This is an issue which may be described as one of mixed fact and law, and would attract the reasonableness standard of review, and as submitted by the WCB, the Appeals Commission’s Decision “demonstrates a clear line of analysis giv(ing) reasons which are sufficient to support the conclusions that they made.” [ 177 ] Even if the standard of review was found to be correctness, the simple answer to the issue of vested rights in this case is that the WCB expressly changed its policy to take away any vested rights to Cost Relief on participation in an ICP.

That assumes that Cost Relief was a vested right. [ 178 ] I need not determine that issue here. The Appeals Commission treated Cost Relief as a vested right in Challenger Geomatics Ltd v Workers’ Compensation Board , Decision No 2012-234, although in Workers’ Compensation Board , Decision No 2012-948 no vested right was found. [ 179 ] The WCB argued that any claim that Cost Relief is a vested right is founded on a misunderstanding as to how the WCB sets premiums. Premiums are based on an employer’s claims experience for the previous three years.

The current year’s experience does not come into consideration until the year following. There is a specific premium assessed for employers electing to purchase Cost Relief. That premium covers any part of costs which would otherwise have been assessed against the employer in the year Cost Relief is purchased. It is not like an “occurrence” insurance policy where all costs relating to a loss are covered by the policy in effect at the time of the occurrence. [ 180 ] This was described in the WCB’s witness at the hearing, Ken Vertz. Mr. Vertz testified on this issue at Volume III, pages 70-71 of the Record: MR.

VERTZ: Okay. So the levy paid on 2012, then, provides the opportunity to receive a refund on your 2012 premiums. And, as stated earlier, you paid your initial premium for 2012 based on an experience record, and if you were eligible for cost relief on pre-existing conditions, you could -- we could bring that case forward -- the employer could bring that case forward in 2013, 2014. We would adjust the experience record, and we would recalculate the premiums for 2012 after the fact.

So then the premium that we collect is less than what we originally had billed the employer, and so that’s what the levy does, is it makes a provision for that. We collect the 14.6 million, and that’s collected from all industries and employers that continue to use cost relief. Now, in theory, there’s 14.6 million available to pay refunds to employers to get cost relief after we initially set their rate for 2012. Now, they are going to get a refund on their 2012 premiums by getting cost relief on claims that occur in 2008, ‘9, and ‘10. That would be how you would get a refund on your 2012 premiums.

So the 14.6 million that we collect really anticipates that some employers are going to come forward, get cost relief on claims that are used to initially set their rate in 2012, and get a refund on their 2012 premiums. [ 181 ] It appears clear from this evidence that in order to obtain Cost Relief, the employer must continue to pay Cost Relief premiums. Once an employer has joined an ICP and is no longer able to purchase that type of coverage, the entitlement to purchase Cost Relief on an ongoing basis is lost.

In this case, any right to purchase Cost Relief in these circumstances was expressly taken away. [ 182 ] This argument strongly suggests that Cost Relief was not a vested right in the first place. Because I have found that the WCB was entitled to change its policies, and did so validly, any vested rights to Cost Relief (if they existed) were lost. [ 183 ] This ground of appeal also fails.

Conclusion [ 184 ] Challenger has failed to establish that the Appeals Commission’s Decision was unreasonable, where the standard of review was reasonableness, or that the Decision was wrong, where the standard of review was correctness. [ 185 ] Their appeal fails. [ 186 ] To answer the two basic questions on this review: Challenger is required to participate in the ICP Program for the surveying industry; and Challenger is not entitled to any Cost Relief for the 2012 WCB year. [ 187 ] If the parties cannot agree on costs, they may be spoken to, preferably in written submissions. [ 188 ] I am indebted to the parties for their able written and oral submissions on this interesting application.

Heard on the 12 th day of June, 2014. Dated at the City of Edmonton, Alberta, this 20 th day of November, 2014.

Robert A. Graesser J.C.Q.B.A. Appearances: Liza J. Wold Bryan & Company for the Appellant Dale P. Wispinski for the Appeals Commission Manoj Gupta for The Workers’ Compensation Board

Appendix I [54] The policy provides that “Cost relief will only be given if the answer to all four of the following questions is ‘yes’.” The corollary of this statement is that when the answer to all four of the questions is yes; cost relief is given. [55] A claims adjudicator, in reference to each claim, decided that the policy criteria had been met for cost relief on a back claim and awarded the employer cost relief.

It was not argued that the decisions of the two claims adjudicators were incorrect and therefore we do not examine the facts underpinning the claims. [56] The specific policy provisions related to cost relief on a back claim limits the discretion of the Board in applying the cost relief policy. We find that when policy uses the phrase “cost relief may be considered” it refers only to the adjudicative discretion of the Board to decide, in the first instance, whether the eligibility criteria have been satisfied. In our view the word “may” in this

interpretation is used in its ordinary sense to express the “possibility” that cost relief will be granted after inquiry in relation to established criteria — not to reserve a unilateral and unconditional discretion in favour of the Board to decide whether it will apply the policy or not (i.e. even when all the criteria are satisfied). [57] In reaching this conclusion we are influenced by the following discussion in Sullivan & Dreidger Construction of Statutes, 4 th ed. at pages 58 and 59: “There are many cases in which the courts have found that the power conferred by ‘may’ is coupled with a duty once all the conditions for the exercise of the power have been met.

In Brown v. Metropolitan Authority , for example, the Nova Scotia Court of Appeal ruled that Sackville’s Metropolitan Authority was obliged to pay the claimant under the following provision of the Community of Sackville Landfill Compensation Act: 8.1 Upon receipt of a claim documented to its satisfaction, the Authority may pay an amount to a person who is... [an] occupier of a real... property located in the Community of Sackville on account of damages suffered by that person arising out of the operation of the Landfill Site.

The Authority argued that the words ‘may pay’ conferred entitlement to pay, but not obligation. Responding to this argument Pugsley J.A. wrote: There was, in my opinion, no discretion left to the Authority to impose any further conditions before being required to pay compensation to (the claimant). It is the duty of the Authority not to act in such a manner as to frustrate the policy and objects of the Act, and in my opinion, the position taken by the Authority in this case would do just that.

The Authority has confused what is a very clear distinction between a power coupled with a duty and a complete discretion ( Julius v. Bishiop of Oxford …) [58] On the same logic, we find that once the policy criteria for cost relief have been established; there is a duty on the WCB to exercise its power to award cost relief. Policy 05-02,

Part II Application 3: Back Injuries, Question 3 clearly establishes that cost relief will be given if the four criteria identified in that

section are satisfied. [59] We find that, in relation to Policy 05-02,

Part II ApplicatIon 3: Back injuries: Question 3, the WCB has confused the concept of an unconditional discretion with that of conditional discretion coupled with a duty. To find otherwise — to find that cost relief is subject to the sole unconditional discretion of the WCB, regardless of whether policy criteria are met, would result in unintended consequences. The legitimate expectation of employers arising from the clear language of the policy criteria, and the longstanding practice of the WCB would be defeated.

The uncertainty created would be out of step with one of the overarching purposes of policy which is to provide certainly to the rights and obligations of those it affects. [60] In relation to each claim under consideration in this appeal, a claims adjudicator found the policy criteria for cost relief on a back injury had been met and that it was appropriate incremental costs related to the prolonged disability period in each case be relieved from the employer’s experience record.

Once this decision was reached by the claims adjudicator, the employer became entitled to cost relief and had a vested right to this entitlement. [61] Pursuant to Policy: 07-02

Part II, Question 9 cost relief adjustments affecting an employer’s experience rating are only available for a maximum of four years following the year in which the accident occurred. As the accidents giving rise to the underlying claims occurred in 2004, the employer is entitled to cost relief for the years 2005, 2006, 2007 and 2008. [62] These findings lead us to the conclusion that the employer is entitled to cost relief in 2008 for both claims pursuant to Policy 05-02.

If the employer is otherwise entitled to cost relief, does Policy 07-02 eliminate its entitlement? [63]

Section 113 of the Act is relied upon by the WCB as authority for the proposition that it may eliminate cost relief granted pursuant to Policy 05-02 in order to adopt the cost relief option in connection with ICP. The WCB characterizes ICP as a system of rate modification. [64] It argues that: “Legislation and policy grant the WCB considerable flexibility in creating and implementing pri

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