Pe Ben Oilfield Services, 2017 ABQB 678

Court of Queen’s Bench of Alberta Citation: Pe Ben Oilfield Services

(2006) Ltd v Arlint, 2017 ABQB 678 Date: 20171106 Docket: 1701 00455 Registry: Calgary Between: Pe Ben Oilfield Services

(2006) Ltd. Applicant - and - Melissa Mabel Arlint and the Workers' Compensation Board of Alberta Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ I. Overview [ 1 ] The Applicant, Pe Ben Oilfield Services

(2006) Ltd., seeks a single forum anti-suit injunction restraining the Respondents, Melissa Arlint and the Workers’ Compensation Board of Alberta (the “WCB”), from proceeding with a personal injury action commenced by Ms. Arlint against Pe Ben Ltd. in British Columbia. [ 2 ] For the reasons below, I find Pe Ben Ltd. has not met the requirements for an anti-suit injunction and dismiss the application. II. Background

[ 3 ] The facts are not in dispute. [ 4 ] On November 22, 2013, Ms. Arlint was driving near Dawson Creek, British Columbia. She alleges she stopped her vehicle and was rear-ended by a truck driven by Douglas Bishop. Mr. Bishop was employed by Pe Ben Ltd., which was also the registered owner of the truck. [ 5 ] Pe Ben Ltd. is an Alberta company carrying on business in Alberta and BC. It qualifies as an insured “employer” pursuant to Alberta’s Workers’ Compensation Act , RSA 2000, c W -15 ( Alberta WCA ). [ 6 ] At the time of the accident, both Ms. Arlint and Mr. Bishop were: (

a) Residents of Alberta working in the course of their employment in BC; and (b) “Workers” under the Alberta WCA . [ 7 ] Following the accident, Ms. Arlint applied to the Workers' Compensation Board of British Columbia (“WorkSafeBC”) for compensation for her injuries. Her claim was denied. Ms. Arlint then applied for and received compensation from the WCB in Alberta. [ 8 ] On November 19, 2015, Ms. Arlint commenced an action against Pe Ben Ltd. in the Supreme Court of British Columbia (the “BC Action”). She alleges the accident was caused by the negligence of Mr.

Bishop, which resulted in her suffering injuries and damages. [ 9 ] On January 11, 2017, Pe Ben Ltd. filed an originating application in this Court seeking an anti-suit injunction restraining the Respondents from continuing the BC Action. Ms. Arlint has agreed not to take any steps in the BC Action until this Court makes a determination on Pe Ben Ltd.’s application. Pe Ben Ltd. has not applied to the Supreme Court of BC to stay the BC Action. [ 10 ] The Applicant does not dispute that BC is the proper forum for the BC Action. Rather, Pe Ben Ltd. is applying for a single forum anti-suit injunction.

Such an injunction will not prevent the Supreme Court of BC from hearing the BC Action but, it will prevent the Respondents from continuing the BC Action or bringing a similar action in another jurisdiction. [ 11 ] As explained by the Applicant in its Reply Brief at para 6: “…this Application is best understood as an attempt to preclude the Alberta WCB from proceeding with the action anywhere, as to do so would offend the Alberta WCB’s enabling legislation and amount to an abuse of process.” [ 12 ] To succeed with this application, Pe Ben Ltd. must establish that allowing the BC Action to proceed will cause it an injustice.

Pe Ben Ltd. submits the BC Action is unjust for two reasons: (

a) Ms. Arlint and the WCB are statute barred from continuing the BC Action, as well as commencing any similar action in another jurisdiction; and (

b) It would be inequitable to allow the WCB, as an equitable plaintiff in the BC Action, to circumvent its own enabling legislation by pursuing the BC Action or bringing a similar action in another jurisdiction. [ 13 ] Firstly, Pe Ben Ltd. submits that

section 23 of the Alberta WCA , when read in conjunction with

section 22 , prevents an Alberta resident from bringing an out-of-province civil action when the same action is statute barred in Alberta. This argument is premised on the 2005 amendments to the Alberta WCA , which replaced the concept of “subrogation” with “vesting” in

section 22: see Bill 15, Workers’ Compensation Amendment Act, 2005 , 1st Sess, 26th Leg, Alberta, 2005 (assented to 1 December 2005), SA 2005, c 48 [ 2005 Amendment ]. Further, Pe Ben Ltd. asserts that, because

section 22 vests Ms. Arlint’s cause of action in the WCB, both Ms. Arlint and the WCB are statute barred from bringing the BC Action. [ 14 ] Secondly, Pe Ben Ltd. submits that the WCB is an equitable plaintiff in the BC Action. Accordingly, pursuing the BC Action is contrary to the intended purpose and function of Alberta’s workers’ compensation scheme, and it would be unjust to allow the WCB to do in BC what it is prevented from doing in Alberta. [ 15 ] The Respondents submit that Pe Ben Ltd.’s

interpretation of sections 22 and 23 of the Alberta WCA are in error. The Respondents also submit

section 23 does not have extra-provincial effect and the BC Action is not statute barred. Further, the WCB is not an equitable plaintiff in the BC Action and, even if it was, there is nothing barring it from bringing the BC Action. Therefore, they contend there is no basis for an anti-suit injunction because the BC Action will not cause Pe Ben Ltd. to suffer any injustice. Conversely, restraining Ms. Arlint from continuing the BC Action would deprive her of her right to seek compensation through the BC courts. III.

Issues [ 16 ] The primary question before this Court is whether the Applicant has met the test for the granting of an anti-suit injunction. To make this determination, I must address the following issues: 1) What are the requirements for a single forum anti-suit injunction? 2) Is the BC Action statute barred by

section 23 of the Alberta WCA ?

3) Is it unjust to allow Ms. Arlint and/or the WCB to proceed with the BC Action? IV. Analysis 1. What are the Requirements for a Single Forum Anti-Suit Injunction? [17] The Applicant is seeking a single forum anti-suit injunction restraining the Respondents from proceeding with the BC Action.In the alternative, the Applicant seeks to sever Ms. Arlint’s interests from those of the WCB by declaring any WCB benefits she hasalready received to be a deductible collateral benefit. A.

Single Forum versus Alternative Forum Anti-Suit Injunctions [18] This Court may grant an anti-suit injunction at the request of a defendant named in a foreign proceeding: see AmchemProducts Inc v British Columbia (Workers' Compensation Board), (SCC), [1993] 1 SCR 897, 1993 CarswellBC 47(SCC) [Amchem].

However, such an injunction should not be granted lightly, as this Court must be wary of interfering with proceedingsin other jurisdictions: Amchem at para 61. [19] There are two types of anti-suit injunctions—single forum and alternative forum: see Janet Walker and Jean-Gabriel Castel,Canadian Conflict of Laws, 6th ed (Markham: LexisNexis Butterworths, 2005) (loose-leaf updated 2016, release 57, volume 1) at 13-17to 13-20. An alternative forum injunction focuses on determining the most appropriate jurisdiction for an action to be heard.

A singleforum injunction focusses on whether an action should be restrained from being heard at all. [20] Alternative forum injunctions are well established in Canadian law. However, this Court is not aware of any Canadiandecision that has adopted the single forum injunction. [21] The Supreme Court in Amchem at paras 55-61 outlined the two-step test for determining whether an alternative foruminjunction should be granted. The Amchem test can be summarized as follows: (

a) The domestic court must determine if, based on the relevant factors, the foreign forum is the most appropriate forum to hearthe action; and (

b) If the domestic court finds there is a more appropriate forum, it must determine the justice or injustice to all parties inallowing the action to proceed in the foreign forum. [22] Prior to applying for an anti-suit injunction, the applicant should seek and be denied a stay of proceedings in the foreignforum: Amchem at paras 56-57. In this case, Pe Ben Ltd. has not applied for a stay in BC.

However, I will assume for the purposes ofthis application that the Supreme Court of BC would likely have denied Pe Ben Ltd.’s application to stay the BC Action. [23] The Amchem test does not apply to single forum injunctions (as forum non conveniens is not a relevant consideration).Therefore, the Applicant asks this Court to adopt the legal analysis for single forum injunctions that has developed under English law:see Airbus Industrie GIE v Patel, [1999] 1 AC 119, [1998] UKHL 12 [Airbus]; Midland Bank plc v Laker Airways Ltd, [1986] QB689, [1986] 1 All ER 526 (CA); South Carolina Insurance Co v Assurantie Maatschappij “De Zeven Provincien” NV, [1987] AC 24,[1986] 3 All ER 487 (HL). [24] In Airbus at 138-39, the House of Lords outlined the English test for a single forum injunction: ...

As a general rule, before an anti-suit injunction can properly be granted by an English court ... comity requires that the English forumshould have a sufficient interest in, or connection with, the matter in question to justify the indirect interference with the foreign courtwhich an anti-suit injunction entails. In an alternative forum case, this will involve consideration of the question whether the English court is the natural forum for theresolution of the dispute.

The proper approach in such cases was considered in some depth by Sopinka J. in Amchem Products Inc. v.British Columbia (Workers’ Compensation Board) (SCC), [1993] 1 S.C.R. 897... In a single forum case this approach, as I have pointed out, can have no application. In such a case it may however be possible toestablish a sufficient connection with the English forum.

In particular this may, as the Midland Bank case suggests, involve considerationof the extent to which the relevant transactions are connected with the English jurisdiction or it may ... involve consideration of thequestion whether an injunction is required to protect the policies of the English forum.

The general principle which I have outlined above is, I understand, consistent with the approach adopted by the Supreme Court ofCanada in the Amchem Products case... [25] The reasoning in Airbus modified the first step in the Amchem test to reflect the unique nature of single forum injunctions.Therefore, when combined with the reasoning in Amchem, the Airbus test can be summarized as follows: (

a) The domestic court must determine if there is a sufficient connection between itself and the action; and

(

b) If there is a sufficient connection, the domestic court must determine the justice or injustice to all parties in allowing the action toproceed in the foreign forum. [26] In the present case, the second step in the Airbus test is more appropriately a determination of the justice or injustice inallowing the BC action to proceed in any forum. [27] The Applicant’s first brief did not specify that it was seeking a single forum injunction. It subsequently submitted that analternative forum injunction is not applicable based on the facts.

As authority for this proposition, the Applicant cites Lincoln GeneralInsurance Co v Insurance Corp of British Columbia, 2001 CarswellOnt 1730 (SCJ), aff’d 163 OAC 188, (OntCA). [28] The Respondents do not object to the availability of single forum anti-suit injunctions in Canada. Instead, they assert only thatPe Ben Ltd. has not met the requirements for an alternative forum injunction. 2. Is the BC Action Statute Barred by

Section 23 of the Alberta WCA? [29] The Applicant asks this Court to find that sections 22 and 23 of the Alberta WCA are to be read together. This

interpretationresults in

section 23’s statutory bar applying extra-provincially and prevents the Respondents from continuing with the BC Action. Suchan analysis is a matter of statutory

interpretation and requires a consideration of the relevant sections of the Alberta WCA. [30] The Applicant draws its

interpretation of sections 22 and 23 from the “historic trade-off” that underpins workers’compensation schemes in Canada: see Pasiechnyk v Saskatchewan (Workers' Compensation Board), [1997] 2 SCR 890, at paras 25-27 (SCC) [Pasiechnyk]. The “trade-off” is that employers fund the WCB’s no-fault scheme in exchange for immunityfrom liability when a worker suffers work-related injuries. For example,

section 23 of the Alberta WCA bars Ms. Arlint fromcommencing her action against Pe Ben Ltd. in Alberta. [31] The Applicant submits

section 22, which now defines “action” as those both inside and outside of Alberta, vests Ms. Arlint’sBC cause of action in the WCB. This vesting makes the WCB an equitable plaintiff in the BC Action. Further, the

section 22 definitionof “action” applies to

section 23. Thus, Ms. Arlint and the WCB are barred from continuing the BC Action. [32] The Applicant concedes that its

interpretation of

section 23 may result in that

section having some extra-provincial effect.However, based on a pith and substance analysis,

section 23 is saved by the necessarily incidental/ancillary effects doctrine. [33] The Respondents reject Pe Ben Ltd.’s

interpretation. They submit sections 22 and 23 are not intended to be read together;therefore, the statutory bar does not have any extra-provincial effect. As evidence of its

interpretation, the Respondents point to thedefinition of “action” in section 22(1), which is explicitly limited in scope to only sections 22 and 22.1. In addition, the Respondentssubmit sections 22 and 23 are primarily intended to define the relationship between the worker and the WCB, and not between theworker and/or WCB and the employer. [34] In support of their

interpretation of sections 22 and 23, the Respondents also rely upon passages in the Alberta Hansardrelating to the 2005 Amendment: see Alberta, Legislative Assembly, Alberta Hansard, 26th Leg, 1st Sess (March 1 to December 1, 2005)at 127, 546, 1638-39, 1869 (Mr. Webber and Mr. Herard). These passages appear to contradict Pe Ben Ltd.’s argument regarding thelegislative intent behind replacing subrogation with vesting in

section 22. [35] Further, the Respondents’ submit that workers’ compensation schemes are provincial in scope, not inter-provincial ornational. Therefore, Pe Ben Ltd. is only entitled to immunity from liability in Alberta. A. The Workers’ Compensation Scheme in Alberta [36] Workers’ compensation schemes are statutory no-fault insurance systems intended to replace the tort system whencompensating workers for work-related injuries. The history, purpose, and function of Canada’s various workers’ compensation schemeshave been detailed by the courts: see e.g.

Pasiechnyk. [37] In Alberta, the provincial workers’ compensation scheme is operated by the WCB. This scheme is entirely funded throughpremiums paid by employers like Pe Ben Ltd. [38] The Alberta’s workers’ compensation scheme generally functions as follows: (

a) Employers pay premiums to the WCB and, in exchange, they are insured against liability for work-related injuries. (

b) When a worker suffers a compensable injury, the worker may claim no-fault benefits from the WCB. (

c) If the WCB insures the responsible party,

section 23 of the Alberta WCA bars any action when the conduct of the responsibleparty causes or contributes to the injury of the worker in the course of their employment. (

d) If a non-WCB party injures a worker, the worker’s cause of action against the non-WCB party is vested in the WCB pursuant tosection 22 of the Alberta WCA. The WCB may commence an action against the party responsible for the worker’s injuries in the name ofthe worker. This action is intended to, among other things, recover the value of the benefits paid to the injured worker. [39] The parties do not dispute

section 23 is applicable in Alberta. Rather, they disagree over whether its statutory bar appliesextra-provincially. [40] The parties also disagree over the implications of an injured worker’s cause of action “vesting” in the WCB. Prior to the 2005

Amendment ,

section 22 “subrogated” the rights of the worker’s cause of action to the WCB. [ 41 ] The relevant portions of sections 22 and 23 of the current Alberta WCA are as follows: Action vests in the Board 22(1) In this

section and

section 22.1, (a) "action" means a cause of action and all rights of recovery of a claimant, whether inside or outside Alberta, against any person or persons, in respect of or arising out of the personal injury to or the death of a worker; (b) "claimant" means a worker, a worker's legal personal representative or a worker's dependants; (c) "compensation costs" means the present and future costs, as determined by the Board, of all benefits paid or payable to or on behalf of a claimant under this Act including, without limitation, all disability, medical aid and vocational rehabilitation benefits.

(2) This

section (

a) applies to accidents that occur on or after the date this

section comes into force; (

b) does not apply in respect of an action that the Board has divested itself of under

section 22.1.

(3) Notwithstanding any other Act, if an accident happens to a worker entitling a claimant to compensation under this Act, any action of the claimant in respect of that accident vests in the Board. ... Circumstances removing cause of action 23(1) If an accident happens to a worker entitling the worker or the worker's dependants to compensation under this Act, neither the worker, the worker's legal personal representatives, the worker's dependants nor the worker's employer has any cause of action in respect of or arising out of the personal injury suffered by or the death of the worker as a result of the accident (

a) against any employer, or (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer or worker that caused or contributed to the injury arose out of and in the course of employment in an industry to which this Act applies.

(2) In an action to which

section 22 applies, a defendant may not bring third party or other proceedings against any employer or worker whom the plaintiff may not, by reason of this

section bring an action against, but if the court is of the opinion that that employer or worker, by that employer's or worker's fault or negligence, contributed to the damage or loss of the plaintiff, it shall hold the defendant liable only for that portion of the damage or loss occasioned by the defendant's own fault or negligence. [ 42 ] The relevant portions of sections 22 and 23 of the pre- 2005 Amendment Alberta WCA are as follows: Subrogation by Board 22(1) If an accident happens to a worker entitling the worker or the worker’s dependants to compensation under this Act and the circumstances of the accident are such as to also entitle the worker, the worker’s legal personal representatives or the worker’s dependants to an action against some person other than an employer or worker in an industry to which this Act applies in respect of the personal injury to or death of the worker, the Board is subrogated to the rights of the worker, the worker’s legal personal representatives or the worker’s dependants in respect of that cause of action.

(2) Where a worker referred to in subsection (1) or the worker’s dependant receives compensation under this Act in respect of the personal injury suffered by the worker, the worker or the worker’s legal personal representative or the dependant has the same right to recover the cost of that compensation from the person referred to in subsection (1) as the worker or the worker’s legal personal representative or the dependant would have if the worker or dependant had been required to pay the whole cost of the compensation the worker or dependant received, and the Board is subrogated to the rights of the worker or the worker’s legal personal representative or the dependant in respect of that cause of action. ...

Circumstances removing cause of action 23(1) If an accident happens to a worker entitling the worker or the worker’s dependants to compensation under this Act, neither the worker, the worker’s legal personal representatives, the worker’s dependants nor the worker’s employer has any cause of action in respect of or arising out of the personal injury suffered by or the death of the worker as a result of the accident (

a) against any employer, or (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer or worker that caused or contributed to the injury arose out of

and in the course of

(2) In an action taken pursuant to section 22(4)(

b) and arising out of injury to or death of a worker, a defendant may not bring third partyor other proceedings against any employer or worker whom the plaintiff may not, by reason of this

section bring an action against, but ifthe court is of the opinion that that employer or worker, by that employer’s or worker’s fault or negligence, contributed to the damage orloss of the plaintiff, it shall hold the defendant liable only for that portion of the damage or loss occasioned by the defendant’s own faultor negligence. [43] It is noteworthy that there is little substantive difference between the current and pre-2005 Amendment

section 23. B. Extra-Provincial Application of Workers’ Compensation Legislation [44] Historically, the courts in Canada have declined to give extra-provincial effect to the statutory bar in the Alberta WCA andother comparable workers’ compensation legislation. [45] For example, in Glavin v Ryder Truck Rental Ltd, 51 DLR (4th) 389, 1988 ABCA 147 [Glavin], our Court ofAppeal dealt with issues similar to those currently before this Court.

The main issue in Glavin at para 1 was “whether the provisions ofthe Workers Compensation Act of British Columbia (c. 437, R.S.B.C. 1979) are applicable in Alberta so as to affect the rights of theplaintiff, a resident of Alberta, in claiming damages for injuries resulting from a motor vehicle accident which occurred in Alberta.” [46] The defendants in Glavin opposed the plaintiff’s action on essentially the same grounds as Pe Ben Ltd. now opposes the BCAction.

Specifically, the defendants argued the action was statute barred in Alberta by the BC WCA because the plaintiff had alreadyaccepted compensation from WorkSafeBC. The defendants also asserted that WorkSafeBC was the true plaintiff in the action becausethe plaintiff’s claim was subrogated to WorkSafeBC after accepting compensation under the BC WCA. [47] The Court of Appeal at para 14 held that the BC WCA could not prevent Alberta residents from enforcing their rights outsideof BC.

The Court also declined to determine whether subrogation made WorkSafeBC the real plaintiff in the action. [48] Two elements of Glavin are different from the facts before this Court. First, Glavin involved the application of BC legislationto an Alberta resident in Alberta. Conversely, this Court is dealing with the application of Alberta legislation to an Alberta resident inBC. Second, Glavin involves the concept of subrogation instead of vesting. [49] Cowley v Brown Estate, 147 DLR (4th) 282, 1997 ABCA 198 [Cowley], further clarified the law surrounding extra-provincial application of provincial legislation.

The facts in Cowley are distinguishable from this case, but what is relevant is that ourCourt of Appeal at paras 26, 30, and 39 clarified the principles from Glavin: ... The issue in Glavin involved the application of B.C. law to deny an Alberta resident his rights arising from a cause of action inAlberta.

This Court decided only that "one province cannot enact legislation affecting the rights of a resident of another province arisingout of a cause of action in such other province." ... [The issue in Cowley is not one] where the foreign law seeks to affect law dealing with liability in tort, as were the earlier Albertadecisions or to remove rights granted to residents of Alberta by Alberta law. There is no conflict with Alberta law...

Saskatchewan law isthe only law which can be applied and must be recognized by the Alberta Court where medical and hospitalization costs were incurred inSaskatchewan by Saskatchewan residents. ... I conclude that this Court should recognize the Saskatchewan legislation which governs the relationship between the Minister and thebeneficiary, and establishes their respective rights. The rights of the respondents are not affected by the application of the Saskatchewanlegislation. The Saskatchewan legislation is not in conflict with laws in force in Alberta.

Moreover, had the appellants been Albertaresidents, the respondents would have been liable for the medical costs incurred as a result of the accident. [50] The reasoning in Glavin, as clarified in Cowley, confirms that workers’ compensation legislation may not have extra-provincial effect if it creates a conflict of laws or compromises the rights of a non-resident outside of Alberta. The issue remains,however, whether the Alberta WCA can compromise the rights of an Alberta resident outside of Alberta.

The existing case law suggeststhat it cannot. [51] The decision of the Supreme Court of BC in Byers v Higgen, 80 BCLR (2d) 386, (BC SC) [Byers], isanalogous to the facts and issues currently before this Court. Byers involved an Alberta worker who was injured in BC and receivedcompensation from the WCB in Alberta. The worker then brought a personal injury action in BC against the defendant, who was definedas an “employer” pursuant to the Alberta WCA. [52] The defendant in Byers opposed the plaintiff’s action on almost exactly the same grounds as Pe Ben Ltd. now opposes the BCAction.

However, the Supreme Court of BC rejected those arguments, finding that the Alberta WCA could not bar an Alberta residentfrom bringing an action in BC. [53] Courts in other provinces have similarly rejected the argument that workers’ compensation legislation can prevent a workerinjured in an out-of-province accident from bringing an action in the jurisdiction where they were injured: see e.g.

MacDougall v NovaScotia (Workers' Compensation Appeals Tribunal), 2010 NSCA 92 [MacDougall]; Rowan Cos v DiPersio, (NSCA), 96 NSR (2d) 181, 1990 CarswellNS 61 (NS CA); Cudmore v Tabin, 32 Sask R 105, (Sask QB); Desharnais vCanadian Pacific Railway, [1942] 4 DLR 605, (Sask CA) [Desharnais]. Although the facts and issues in many ofthese decisions are distinguishable from this case, the same basic concept and understanding of workers’ compensation legislation

generally remains true. [54] There is at least one instance where a court has barred an out-of-province personal injury action after a worker acceptedworkers’ compensation benefits. In Spencer v Mansour's Ltd, 2000 NSCA 59 [Spencer], a New Brunswick worker was injured whilemaking a delivery in Nova Scotia.

The worker received benefits in New Brunswick and then attempted to bring an action in Nova Scotia.The Nova Scotia Court of Appeal held that the worker was barred from bringing the action pursuant to Nova Scotia’s Workers’Compensation Act, SNS 1994-95, c 10 [Nova Scotia WCA]. [55] Spencer is distinguishable from the facts before this Court because, among other things, the action was barred pursuant tolegislation in the jurisdiction where it was commenced (i.e. Nova Scotia). It was not barred due to the legislation where the workerreceived his benefits (i.e. New Brunswick).

Specifically, the plaintiff in Spencer was found to be a “worker” pursuant to the Nova ScotiaWCA and, therefore, statute barred from bringing an action in both Nova Scotia and New Brunswick. Here, Pe Ben Ltd. concedes thatMs. Arlint is not a “worker” pursuant to the BC WCA. [56] The existing case law does not support the Applicant’s position that

section 23 is intended to have extra-provincial effect. Thisconclusion is acknowledged by the Applicant, which referred this Court to many of the relevant decisions, including Glavin, Byers, andDesharnais. Nevertheless, the Applicant still attempts to distinguish these cases on the grounds that they did not involve provisionscontaining the concept of vesting (which was added to the Alberta WCA as part of the 2005 Amendment). In other words, the Applicantargues that the legal analysis is fundamentally altered due to the replacement of subrogation with vesting in

section 22. C. Subrogation versus Vesting [57] In Balancing Pool v TransAlta Corp, 2013 ABCA 409 at para 17, our Court of Appeal outlined the principles of statutoryinterpretation that are applicable in this case: Courts have long adopted Driedger's modern principle as the method to follow for statutory

interpretation: "..the words of

an Act are tobe read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Actand the intention of Parliament": E.A Driedger, Construction of Statutes, 2nd Ed (Butterworths: Toronto, 1983) at 87; see for example:Rizzo & Rizzo Shoes Ltd., Re, (SCC), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 (S.C.C.); Bell ExpressVu Ltd.Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 (S.C.C.); ATCO Gas & Pipelines Ltd. v.

Alberta (Energy & Utilities Board), 2006SCC 4, 263 D.L.R. (4th) 193 (S.C.C.) at para 37. [58] Alberta is not the only jurisdiction that has incorporated vesting in its workers’ compensation legislation. Several Canadianjurisdictions also allow an injured worker’s cause of action to vest in its workers’ compensation board: see e.g.

Manitoba’s The WorkersCompensation Act, RSM 1987, c W200, s 9 [Manitoba WCA]; Nova Scotia WCA, s 30; Yukon’s Workers’ Compensation Act, SY 2008, c12, s 51; Nunavut’s Workers’ Compensation Act, SNu 2007, c 15, s 64; Northwest Territories’ Workers’ Compensation Act, SNWT2007, c 21, s 64. [59] In Kowalchuk v Adduri, 2001 MBCA 7 at paras 23-24 [Kowalchuk], the Manitoba Court of Appeal considered the effect ofreplacing subrogation with vesting in the Manitoba WCA: It is also to be observed that until 1930, The Workmen's Compensation Act, S.M., C.A., 1924, c. 209, emulated the legislation common toother jurisdictions in Canada by giving the board subrogation rights with respect to payments made.

In 1930, the Manitoba Act wasamended to provide that an application having been made and approved, the right of action of the workman became "vested" in theboard. There is every reason to believe that the legislature would not have changed the wording had it not intended a change in the meaning. AsLord MacMillan wrote in D.R. Fraser & Co. v. Minister of National Revenue (1948), (UK JCPC), [1949] A.C. 24(Canada P.C.), at 33: When an amending Act alters the language of the principal statute, the alteration must be taken to have been made deliberately.

Specifically, the legislature intended that when a worker applied for and received compensation, any right of action pertaining to thepayment of compensation would be owned by the board in absolute terms. The legislature intended to control and limit legal actions byinjured workers against third parties. There is no obligation, of course, upon the worker to apply for and accept compensation, but havingdone so, the worker has no authority to proceed with a third party claim other than as authorized by and with the concurrence of theboard.

The difference between vesting and subrogation is very real. [60] I accept the reasoning in Kowalchuk —there is a difference between vesting and subrogation. However, that conceptualdifference alone does not validate the Applicant’s position. Rather, as the Manitoba Court of Appeal also made clear in the abovepassage, this Court must consider the intention of the legislature when it replaced subrogation with vesting. [61] The Respondents provided evidence of the legislature’s intent in replacing “subrogation” with “vesting” in the 2005Amendment by referring the Court to the Alberta Hansard at 1638-39:1869: Mr.

Webber: [on November 15] ... Vesting of these actions with the WCB remains. Subrogation is the wrong legal term given thedegree of control the courts say the WCB has. The word “subrogation” has prompted a small segment of the legal profession to challengethe WCB’s position in order that those lawyers can charge higher legal fees. The word “vesting” clarifies the intent of

section 22 of theWorkers’ Compensation Act when taken as a whole, even in its preamended form. It removes ambiguity and stops the injured workerfrom being a pawn when a lawyer wants to charge higher fees than the WCB allows. So vesting remains, Mr. Chairman; however, therehave been considerable efforts to reinforce the rights of the worker and to reinforce the checks and balances that the WCB will beobliged to follow within such a framework. ...

Also, Mr. Chairman, there was concern that even though the Alberta Court of Appeal upheld the ultimate control and legitimate interestthat the WCB has in these third-party actions in the current act, measures needed to be taken to ensure that the WCB treated the injuredworker like a partner that would be consulted throughout the process and prior to any settlement... ... Mr. Herard: [on November 23] ... The word “vesting” makes clear the intent of

section 22 of the Workers’ Compensation Act whentaken as a whole. However, there has been a great deal of effort to reinforce the rights of the worker and to guarantee the checks andbalances that WCB will need to follow with such a framework. I think it’s a very reasonable compromise that the processes to befollowed in terms of client consultation, selection of legal counsel, and the like will be put into regulation, where the government retainssome checks and balances over the process. ... [62] The reasoning behind replacing subrogation with vesting described in the above passages is consistent with the Respondents’argument.

Section 22’s basic purpose and function was intended to remain largely the same before and after the 2005 Amendment. Itappears vesting was added to

section 22 merely to clarify the amount of control the WCB maintains over an injured worker’s personalinjury action. [63] However, this Court cannot rely on Hansard evidence alone in conducting its statutory

interpretation. I am cognizant ofRothstein J.’s warning in Canadian National Railway v Canada (AG), 2014 SCC 40 at para 47: This Court has observed that, while Hansard evidence is admitted as relevant to the background and purpose of the legislation, courtsmust remain mindful of the limited reliability and weight of such evidence (Rizzo & Rizzo Shoes Ltd., Re, (SCC),[1998] 1 S.C.R. 27 (S.C.C.), at para. 35; R. v. Morgentaler, (SCC), [1993] 3 S.C.R. 463 (S.C.C.), at p. 484; Sullivan,supra, at pp. 608-14).

Hansard references may be relied on as evidence of the background and purpose of the legislation or, in somecases, as direct evidence of purpose (Canada (Attorney General) v. Mowat, 2011 SCC 53, [2011] 3 S.C.R. 471 (S.C.C.), at para. 44, perLeBel and Cromwell JJ.). Here, Hansard is advanced as evidence of legislative intent. However, such references will not be helpful ininterpreting the words of a legislative provision where the references are themselves ambiguous (Placer Dome Canada Ltd. v.

Ontario(Minister of Finance), 2006 SCC 20, [2006] 1 S.C.R. 715 (S.C.C.), at para. 39, per LeBel J.)... [64] Therefore, this Court must also look to the established jurisprudence interpreting sections 22 and 23 in order to confirm theirtrue purpose and function. D. Purpose and Function of Sections 22 and 23 of the Alberta WCA [65] Both the Court of Queen’s Bench and our Court of Appeal have previously interpreted the purpose and function of thepre-2005 Amendment

section 22. [66] In Gutierrez v Jeske, 2003 ABQB 647 at paras 60, 64-65, aff’d 2005 ABCA 110 [Gutierrez], Moen J. explained the purposeand function of

section 22 of the Alberta WCA: The clear legislative purpose of s. 22 as a whole is to protect the Board's ability to recover its subrogated interest, but at the same time,the legislation also maintains the worker's rights in the cause of action. As Justice Bielby noted in Hotte v. Royal Insurance Co. ofCanada (1991), (AB KB), 122 A.R. 1 (Alta. Q.B.) (rev'd on other grounds (1992), 1992 ABCA 29 , 125A.R. 1 (Alta. C.A.)), subrogation under the Act does not transfer the worker's claim or rights to the action. Therefore, s.22(4)(

b) must beinterpreted in a way that takes into account both purposes, and gives meaning to all of the language and terms. ... The Board cited numerous cases from other jurisdictions in which courts held that the effect of the board's subrogated interest was togive the board control of the action, to make it dominus litus, or as the Board argued here, to virtually vest the cause of action in theBoard. These cases are all distinguishable because they involve a different statutory structure in which the worker elects to either sue intort or to seek compensation under the workers compensation system.

None of these jurisdictions have a legislative provision comparableto s. 22, giving the worker the right to take an action, subject to the Board's consent and terms. In my opinion, this unique feature of the Alberta legislation is significant, and indicates a different legislative intention within thesubsection governing subrogation. However, the overall legislative intent in both Alberta and the other "election-type" jurisdictions issimilar. Under either approach the legislation provides a worker with the ability to bring an action herself.

The other jurisdictionsseparate the worker's right to take an action from the compensation system; here they exist together. In fact, in the election jurisdictionsthe jurisprudence clearly indicates that the board is dominus litus unless and until the election is set aside; see for example Marmion v.Golf, [1991] B.C.J. No. 4015 (B.C. S.C.). In the absence of a provision within the compensation scheme giving a worker the right tobring an action, it is reasonable to infer that the board is dominus litus.

But that inference is negated by the clear statutory language in s.22 giving the worker rights to bring an action herself and to retain counsel. [67] Our Court of Appeal in Gutierrez at paras 8-9 confirmed Moen J.’s

interpretation of

section 22: The

section specifically contemplates the worker bringing an action for damages against a third party not covered by the Act. That rightis subject to the Board's consent on terms satisfactory to the Board. The

section subrogates the worker's right of action to the Board. Itspurpose is twofold, to allow the worker to bring the action and to protect the Board's legitimate interest in the action. The

section givesthe Board significant control over the prosecution of the action, including the requirement that it approve any settlement. It also providesthat the Board may take an action in the name of the worker without the worker's consent and may settle a claim without the worker'sconsent. In other words, s. 22 gives the Board considerable control over the action.

However, that control does not eliminate the worker's right of action under s. 22 ... [ 68 ] The

interpretation of

section 22 in Gutierrez is consistent with the rationale behind the 2005 Amendment cited in the Alberta Hansard at 1638-39, 1869. I also note the wording in

section 23 is effectively the same as before the 2005 Amendment . Accordingly, sections 22 and 23 appear to have generally the same purpose and function now as they did prior to the 2005 Amendment . The addition of vesting appears to merely reinforce that the WCB retains control over an injured worker’s ability to commence and advance a civil action: see Palmquist v Ziegler , 2010 ABQB 337 at paras 310-12 . E. The BC Action is Not Statute Barred by

Section 23 of the Alberta WCA [ 69 ] I find that the BC Action is not statute barred by

section 23 of the Alberta WCA . [ 70 ] The wording of

section 22 explicitly states that its definition of “action” is only applicable to sections 22 and 22.1. Further, the Hansard evidence and the reasoning in Gutierrez supports the Respondents’ position that the inclusion of “vesting” in

section 22 was never intended to alter the extra-provincial applicability of

section 23 . [ 71 ] I am also not persuaded by the Applicant’s

interpretation of the “historic trade-off.” It is well established that this trade-off does not operate inter-provincially: see e.g. MacDougall at para 43 . Alberta and BC each have their own workers’ compensation schemes. Alberta employers pay into the Alberta scheme in exchange for immunity from liability in Alberta. That immunity does not extend to BC. If this Court were to accept the Applicant’s

interpretation of sections 22 and 23, and thereby unilaterally impose the “historic trade-off” inter-provincially, it would create the same type of conflict of laws rejected in Glavin and Byers . 3. Is it Unjust to Allow Ms. Arlint and/or the WCB to Proceed with the BC Action? [ 72 ] The Applicant argues that it would be unjust to allow Ms. Arlint and the WCB, as equitable plaintiff, to proceed with the BC Action. I am not persuaded by the Applicant’s arguments and I find there is no injustice in allowing the Respondents to continue the BC Action. [ 73 ] The Applicant submits it would be unjust to allow Ms.

Arlint to proceed with the BC Action because the Applicant may be liable for tort damages in BC as well as have to pay increased premiums in Alberts due to the accident. [ 74 ] The Applicant was unable to adduce any evidence of an increase in its WCB premiums as a result of the accident. The accident occurred in November 2013, Ms. Arlint received her WCB benefits sometime thereafter, and this application was heard in June 2017. With more than three years having passed since the accident, there has been ample opportunity for the Applicant to demonstrate a noticeable (or potential) rise in its premiums.

Further, I agree with the reasoning of the Court in Byers at para 11 , which found that any increase in WCB premiums, if Pe Ben Ltd.’s premiums did in fact increase, would likely be shared across a larger group of employers. [ 75 ] I am also not persuaded by the argument that Ms. Arlint should forgo any further compensation in BC because the WCB may recoup a portion of her tort award. I see no injustice in allowing the WCB, if it is in fact an equitable plaintiff, to use the BC Action to recover the value of the benefits it paid to Ms. Arlint.

Nothing in the “historic trade-off” was intended to shield Pe Ben Ltd. from liability outside of Alberta. Conversely, one of the primary purposes behind including vesting in

section 22 was to allow the WCB to better recover the value of benefits paid to injured workers. There is nothing unjust about allowing the WCB to act in a manner that the legislature intended. [ 76 ] To be clear, I make no finding regarding whether the WCB is an equitable plaintiff in the BC Action. Such a determination is irrelevant on the facts before me. [ 77 ] In addition, I see that no-fault benefits paid to injured workers are intended to replace, but not necessarily reflect, the various heads of damages available in a personal injury action.

Therefore, it cannot be said that the WCB’s benefits have fully compensated Ms. Arlint for her injuries in the same way as a tort award. If anything, it would be unjust to arbitrarily deny Ms. Arlint her legal rights in BC. V. Conclusion [ 78 ] I find that the Applicant has failed to meet the requirements for an anti-suit injunction. [ 79 ] Regardless whether the applicable test is for a single forum or alternative forum injunction, the Applicant has failed to satisfy the second step in both the Amchem and Airbus tests.

There is no evidence that Pe Ben Ltd. will suffer any significant injustice if the BC Action is allowed to proceed. Conversely, granting an injunction will result in palpable injustice for Ms. Arlint and/or the WCB, who will be deprived of their legal rights in BC. [ 80 ]

Section 23 of the Alberta WCA does not bar Ms. Arlint from continuing the BC Action. She is entitled to exercise her legal right to seek tort compensation in BC. Pe Ben Ltd. clearly operates in BC and is capable of defending itself there against the BC Action. Further, there is also nothing barring the WCB, if it is an equitable plaintiff, from commencing or benefiting from the BC Action. The “historic trade-off” was never intended to apply across provinces.

Conversely, sections 22 and 23 were designed to allow the WCB to recoup the value of benefits-paid through the vesting of an injured worker’s cause of action. [ 81 ] I am also not persuaded by the Applicant’s arguments regarding alternative relief. There is no injustice that requires Ms. Arlint’s interests to be severed from those of the WCB. In other words, I see no justification for preventing either Alberta’s workers’ compensation scheme or BC’s tort system from operating as designed and intended.

As the Supreme Court in Amchem made clear, it is only appropriate to grant anti-suit injunctions in exceptional circumstances, and these are not such exceptional circumstances.

[ 82 ] The Parties may speak to costs within 45 days of the date of this decision. Heard on the 9 th day of June, 2017. Dated at the City of Calgary, Alberta this 6 th day of November, 2017. E.A. Hughes J.C.Q.B.A. Appearances: D. Corrigan, Q.C. / J. Kozak for the Applicant, Pe Ben Oilfield Services

(2006) Ltd. G. Coombs for the Respondent, the Workers’ Compensation Board of Alberta No Appearance for the Respondent, Melissa Mabel Arlint