Workplace, Health Safety v. Compensation Commission (Applicant), 2003 NLSCTD 41

Newfoundland and Labrador Supreme Court Trial Division Citation: Workplace Health, Safety and Compensation Commission (Nfld. and Lab.) v. Mason et al.

Date: 2003-04-01 Docket: 2002 01T1384; 2002 01T1468; 2003 NLSCTD 41 Between: Workplace, Health Safety and Compensation Commission (Applicant) and John Mason (First Respondent) and Workers’ Compensation Review Division (Second Respondent) and Westower Communications Ltd. (Party Intervener) Sandra Winsor (Applicant) and Workers’ Compensation Review Division (First Respondent) and Workplace Health, Safety and Compensation Commission (Second Respondent) and Westower Communications Ltd. (Party Intervener) Goulding, J.

Counsel: Rebecca Phillipps, for the Workplace Health, Safety and Compensation Commission; Jacqueline Penney, for the Workers’ Compensation Review Division; Donald Anthony, for Sandra Winsor; Janie Bussey and Michael Harrington, for Westower Communications Ltd. Introduction [ 1 ] Goulding, J.: The applicants, Sandra Winsor and the Workplace Health Safety And Compensation Commission, seek a judicial review of two decisions of the Chief Review Commissioner, Eric Gullage, dated December 19, 2001, which considered whether David Winsor (deceased spouse of Sandra Winsor) and John Mason were workers under

section 2(z)(ii) of the Workplace Health Safety and Compensation Act, R.S.N. 1990, c. W-11. [ 2 ] The Chief Review Commissioner found that David Winsor and John Mason were undergoing training and orientation for employment with Westower Communications Ltd. when Winsor fell from a tower and was fatally injured. Therefore, he considered Winsor and Mason to be workers as defined by the Act. he reversed the previous decisions of the Commission which had held that the men were not being trained but were on a job interview. Issues 1.

What is the appropriate standard of review to be applied by a Review Commissioner when reviewing a decision of the Commission? 2. What is the appropriate standard of judicial review to be applied by this Court in its review of the Commissioner’s award, i.e., patent unreasonableness, reasonableness simpliciter or correctness? 3. Applying this standard of review, should the commissioner’s decisions be quashed and the decisions of the Commission be upheld?

Background [ 3 ] On March 3, 2000, John Mason, David Winsor and Stephen O’Brien attended at the office of Westower for an interview for employment as communication tower riggers. [ 4 ] Mason, Winsor and O’Brien were shown some techniques for using equipment and safety harnesses by the foreman, Kevin Byrne. They then travelled to the tower site to test their ability and comfort with climbing and working at heights. They climbed the tower under the instruction of Kevin Byrne. Upon the descent, Winsor fell 65 feet from the tower and ultimately succumbed to his injuries.

Sandra Winsor made a claim to the commission for dependency benefits. John Mason also made a claim for benefits as he was suffering from post-traumatic stress disorder having witnessed the fatal fall. On October 4, 2000, their claims for compensation were

denied by the intake adjudicator on the basis that Winsor and Mason were in the process of recruitment at the time of the accident and therefore, were not workers under the Act. [ 5 ] Subsequently Westower appealed the decisions and hearings took place before Kathy Lewis-Field who upheld the decisions of the Commission. Westower appealed again to the Review Division. Hearings were conducted on September 7, 2001 and October 29, 2001 concerning Mason and Winsor respectively and on December 19, 2001, the Review Commissioner overturned the Commission’s decisions.

The Decisions Of The Commission [ 6 ] Lewis-Field concluded that there was no bona fide formal training program administered on March 3, 2000 to the three men. She found that the only element of training present was that believed to be necessary to get the men ready for the test of climbing the tower. She was satisfied that the nature of their attendance at Westower was for the purpose of pre-employment testing to determine if they were suitable candidates to participate in an actual on the job training program with the employer.

Lewis-Field stated: “The company indicates that these were not employees as they had not successfully passed their pre-employment testing and were not yet assigned to an on the job training program. This would not be done until the successful outcome of their pre-employment testing.” [ 7 ] She continued in her decision that the Act is clear in that coverage is extended only in cases where there is a contract of service or apprenticeship or the person is a learner as a preliminary to employment. Lewis-Field concluded that to read more than this into the Act would be inappropriate.

The Decision Of The Chief Review Commissioner [ 8 ] The Review Commissioner heard further evidence and questioned the witnesses during the hearings. He found that all witnesses attested to the fact of the three individuals being on the employer’s premises, the office location and tower while in a training and testing process.

He considered that this fact would put them in the category of persons who are subjected to the hazards of an industry for the purpose of undergoing training or probationary work. [ 9 ] He considered the testimony of Jerome Flynn, the co-owner of Westower who stated: “Workers who are interviewed and then put through the process as described in the tower location are considered as almost certainly being employed subject to suitability and the recommendation of the foreman.” [ 10 ] The Review Commissioner reasoned that the Commission’s position that testing does not meet the definition of worker was not in accordance with the intention of the Act.

His review of s. 2(z)(ii) did not show that testing, which in this instance also included training, would preclude the worker from coverage under the Act. [ 11 ] He relied on Flynn’s testimony and found that “hiring was imminent” and “it is understandable that they would not be told they were hired since the possibility existed that they would be apprehensive about the procedures involved in climbing towers including the inherent risk”. [ 12 ] He noted that the foreman described the job duties, exposed them to sections of the tower and the procedures to be followed while climbing.

He concluded that: “There was within the context of training and was followed up by the physical movement up the tower stopping at several points to review the necessary safety and other precautions taken.” Standard of review to be applied by a Review Commissioner when reviewing a decision of the Commission? [ 13 ]

Section 26 of the Act empowers the Review Division to conduct a review of Commission decisions. It provides: “26(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act, the regulations and policy established by the commission under subsection 5(1) as they apply to (

a) compensation benefits and rehabilitation services and benefits.” [ 14 ] In Workers’ Compensation Commission (Nfld.) v. Breen et al. (1997), 1997 CanLII 14639 (NL CA) , 149 Nfld. & P.E.I.R. 335; 467 A.P.R. 335 (Nfld. C.A.) at para. 30 (Nfld.

C.A.) Green, J.A., as he then was, stated: “I believe what Orsborn, J., was asserting was the unassailable proposition that a review commissioner acting within his or her jurisdiction who concludes that the Commission in fact acted in accordance with the Act, Regulations and policy, cannot substitute his or her own opinion just because he or she believes it to be a better or preferred solution.

As long as the Commission does not contravene the Act, Regulations and policy, the Commission’s solution, even though not regarded by the review commissioner as the best solution, must stand.” [ 15 ] In Workers’ Compensation Commission (Nfld.) v. Jesso et al. (2001), 2001 NFCA 49 (CanLII) , 206 Nfld. & P.E.I.R. 276; 618 A.P.R. 276 (Nfld.C.A.), at para. 18, (Nfld. C.A.) Cameron, J.Α., examined the powers of the Review Division in reviewing the Commission’s decisions as follows:

“However, the Legislature created the Review Division to interfere - albeit in limited circumstances. Not only is there the absence of indications that the Legislature intended that the review be less than a full review, the term ‘review’ itself prima facie directs a wider approach. In Saskatoon (City) v. Plaxton, Loewen & Wiebe, 1989 CanLII 4433 (SK CA) , [1989] 2 W.W.R. 577 (Sask. C.A.), Cameron, J.Α., noted: ‘“Review” is occasionally taken in popular use as meaning little more than a first instance “look over” or “examination”.

In its legal sense, of course, it usually means more than that, as implying a formal, second instance, “re-examination” or “reconsideration” with a view to revision or re-determination if something be found wrong or lacking.”‘ [ 16 ] Cameron, J.Α., concluded (at paragraph 22): “In

summary, the current scheme, established by the Act, makes it the role of the Review Division to ensure that the Commission properly applies the Act, regulations and policy. There is no privative clause operative respecting the Review Division’s review of the decisions of the Commission, nor are there other indices that the standard of review should be other than correctness. Further, it would seem that if the standard of review of a review commissioner were patent unreasonableness that would create needless duplication of tasks as that is the standard applied by the courts.

Common sense suggests that the whole raison d’etre of the Review Division is to act as a watch dog over the Commission in respect of those matters listed in s. 26(1). I conclude that the standard of review to be applied by the Review Division is correctness.

In other words, a review commissioner is, for matters within his or her jurisdiction, free to re-examine the evidence, interpret the Act , regulations and policy and, if he or she finds that the Commission has not correctly interpreted the Act, regulations or policy, substitute the decision which he or she considers to be proper or remit the matter to the Commission. This does not mean that a review commissioner can change policy which has been made by the Commission but only that it may interpret that policy differently than the commission does, provided of course the

interpretation of the review commissioner is not patently unreasonable.” [ 17 ] In Fitzpatrick v. Workers’ Compensation Review Division (Nfld.) et al. (2001), 2001 CanLII 33798 (NL SC) , 207 Nfld. & P.E.I.R. 272; 620 A.P.R. 272 (Nfld. T.D.), at para 51 (Nfld. T.D.) Justice Handrigan citing Jesso , supra, commented on the correctness standard to be applied by a Review Commissioner when reviewing a Commission decision: “... The use of ‘correctness’ as a standard of review signifies that little deference should be shown to the decision maker.

As a result it was open to Gullage to look carefully at Candow’s decision to see if it was ‘right’ and if he found that it was not ‘right’, he was at liberty to change it and substitute his own decision for it. He was free to interpret and apply existing policies of the Commission, its legislation and regulations, according to his own view of their meaning and scope.” [ 18 ] I find that the appropriate standard of review to be applied by the Review Commissioner when reviewing the Commission’s decision equates with the standard of correctness.

Standard Of Review By The Courts [ 19 ] In Workers’ Compensation Commission (Nfld.) et al. v. Chamberlain et al. (1999), 1999 CanLII 19019 (NL CA) , 172 Nfld. & P.E.I.R. 51; 528 A.P.R. 51 (Nfld. C.A.) at para. 21 (Nfld. C.A.), Cameron, J.Α., stated: “There is no single approach to judicial review of the decisions of tribunals. Further, in spite of the acceptance of the idea of deference for decisions of administrative tribunals the pendulum has continued to swing between curial deference and interference by courts, albeit on the basis of preservation of rule of law.

The Supreme Court of Canada has developed a strategy to be used by courts in determining the essential question in such cases: ‘Did the legislator intend the question to be within the jurisdiction conferred on the tribunal’.

If it was intended that the question be within the jurisdiction of the tribunal, the court would not interfere unless the decision was patently unreasonable.” [ 20 ] The patently unreasonable test is a high standard of review, and that the Review Division has the right to make serious errors, as long as it does not act in a manner so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and therefore demands intervention by the Court upon review. (See Paccar of Canada Ltd. v.

Canadian Association of Industrial, Mechanical and Allied Workers, Local 14, 1989 CanLII 49 (SCC) , [1989] 2 S.C.R. 983; 102 N.R. 1; 62 D.L.R.(4th) 437; 89 C.L.L.C. 14,050; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181, at para. 32.) [ 21 ] The Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America, Local 579 v.

Bradco Construction Ltd., 1993 CanLII 88 (SCC) , [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, at para. 41 expressed the patently unreasonable test in the following words: “Once it has been determined that curial deference to a particular decision of a tribunal is appropriate, the tribunal has the right to be wrong, regardless of how many reviewing judges disagree with its decision. A patently unreasonable error is more easily defined by what it is not than by what it is.

This court has said that a finding or decision of a tribunal is not patently unreasonable if there is any evidence capable of supporting the decision even though the reviewing court may not have reached the same decision ...” [ 22 ] In Director of Investigation and Research, Competition Act v.

Southam Inc. et al., 1997 CanLII 385 (SCC) , [1997] 1 S.C.R. 748; 209 N.R. 20; 144 D.L.R.(4th) 1, at paras. 56-57 the Supreme Court of Canada, in developing what it referred as the third standard, (reasonableness simpliciter), distinguished that unreasonableness which could be classified as “patent” as follows: “I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal’s decision is patently unreasonable.

An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to

the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference. “The difference between ‘unreasonable’ and ‘patently unreasonable’ lies in the immediacy or obviousness of the defect. If the defect is apparent on the face of the tribunal’s reasons, then the tribunal’s decision is patently unreasonable. But if it takes some significant searching or testing to find the defect, then the decision is unreasonable but not patently unreasonable. As Cory, J., observed in Canada (Attorney General) v.

Public Service Alliance of Canada, 1993 CanLII 125 (SCC) , [1993] 1 S.C.R. 941, at p. 963, ‘in the Shorter Oxford English Dictionary “ patently”, an adverb, is defined as “openly, evidently, clearly”‘. This is not to say, of course, that judges reviewing a decision on the standard of patent unreasonableness may not examine the record. If the decision under review is sufficiently difficult, then perhaps a great deal of reading and thinking will be required before the judge will be able to grasp the dimensions of the problem. ...

But once the lines of the problem have come into focus, if the decision is patently unreasonable, then the unreasonableness will be evident.” [ 23 ] The failure of a tribunal to take relevant and material matters into consideration or basing the decision on irrelevant or extraneous evidence may make the resulting decision patently unreasonable. In Osmond v. Workers’ Compensation Commission (Nfld.) (2001), 2001 NFCA 21 (CanLII) , 200 Nfld. & P.E.I.R. 202; 603 A.P.R. 202 (Nfld.

C.A.), at para. 85, Green, J.Α., as he then was, stated: “Thus, improper treatment of the evidence by a statutory tribunal may amount to an error of law or jurisdiction in at least the following circumstances: (

i) where the decision reached by the decision-maker is not based on any evidence that is rationally connected to the principles that are determinative of the issue; (ii) where, upon an examination of the record, the evidence that is rationally connected to the principles that are determinative of the issue, viewed reasonably, is incapable of supporting the tribunal’s findings of fact; (iii) where it is apparent from the record or from the reasons of the tribunal that the tribunal failed to consider evidence that could have had a material effect on the outcome of the case, or based its decision on irrelevant evidence extraneous to the issue under consideration; (iv) where the decision is otherwise patently unreasonable. “To that extent, therefore, a review of the record before the tribunal in question is justified for the purpose of determining whether an error of law was committed in the same way as it would on an application for judicial review.” [ 24 ] I find that the standard of review to be applied by this Court in its review of the Commissioner’s decisions is patent unreasonableness.

The legislation intended the issue of qualification for compensation benefits to be within the jurisdiction of the Review Commissioner who is protected by a broad probative clause. Were the Review Commissioner’s Decisions Patently Unreasonable [ 25 ] The Workplace Health Safety and Compensation Act, R.S.N. 1990, C.

W-ll, the Act, s. 2(z)(ii), states that a: “Worker includes a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of the industry for the purpose of undergoing training or probationary work, specified or stipulated by the employer as a preliminary to employment.” [ 26 ] The Workers’ Compensation legislation in the Provinces of Alberta and Nova Scotia expand the meaning of learner to include a person undergoing testing , training or probationary as a preliminary to employment. (Emphasis added) [ 27 ] Where a legislative provision specifically refers to one or more items but is silent with regard to comparable items, it must be presumed that the silence is deliberate and intentional.

As our legislature omitted the word “testing”, it clearly did not contemplated Workers’ Compensation coverage for persons involved in the testing stage with an employer. [ 28 ] However, the Review Commissioner found that Winsor and Mason were involved in both testing and training at Westower’s office and at the tower site on March 3, 2000.

Further, he concluded that Westower intended to hire the men for immediate positions in the United States should they received a favourable evaluation from the foreman, Kevin Byrne. [ 29 ] The issue then, is whether on an examination of the record, the evidence is capable of supporting the Review Commissioner’s findings of fact. It is not the function of this Court to weigh the evidence and determine whether it would have reached the same conclusion. [ 30 ] There is no record of the two day hearing before Lewis-Field but her decisions refer briefly to the evidence.

Lewis-Field wrote that Kevin Byrne indicated that he was with Mason and Winsor on that day “for the purpose of training, advising them how to put on their belts, which he referred to as safety equipment and to climb a structure safely”. She noted that Mason stated that Byrne “showed them around the building, familiarized them with the site and nature of the work they would be doing, showed them an outside structure lying on the ground, gave them a tool belt to put on and also gave them some brief instructions concerning the use of the tool belt”.

Having considered this evidence and conflicting evidence, Lewis-Field concluded “the only element of training present was that believed to be necessary to get the men read for the test of climbing the tower”. [ 31 ] In reviewing Lewis-Field’s decision, I find there was evidence at the hearing that some training had taken place, but in terms of assessing and weighing the evidence, she came to the conclusion that the training was “incidental to the testing” so it would not

qualify the claimants for coverage. [ 32 ] The Review Commissioner also heard evidence from Byrne and Mason during the hearings. There are transcripts of those proceedings. The evidence does not conflict with the evidence summarized by Lewis-Field but is considerably more detailed. Mason indicated that Byrne said if they were up to par, there was work for them. Byrne showed them safety harnesses, tool belts and climb ropes which they tried on. He discussed the safety techniques used on the job, including the use of bungy cords.

Byrne took them around the warehouse pointing out the sort of work the company performs. The training at the office lasted thirty to forty-five minutes. [ 33 ] At the tower site, the foreman spent ten minutes acquainting them with the tower and demonstrating the technique of tying on. Byrne then climbed ten to fifteen feet, tied on and waited for the men to climb to his level. He then instructed them on shifting over, the benefit of tying on an angled bar, giving them “the tricks of the trade”. The men climbed to thirty feet above ground at which time Byrne checked on them and instructed them on other matters.

Byrne then directed them to climb another twenty to thirty feet and he would descend and observe them. Further, Mason acknowledged at the hearing his previous written statement to the Commission that Westower had called him to see if he was available for training on March 3, 2000. [ 34 ] Kevin Byrne recalled that Jerome Flynn requested that he do an orientation and a climb to see what value the men would be. Byrne assisted them when they tried on the harnesses and belts and explained the right way to use the equipment. He took a langet and placed it around a beam and leaned back to show how it was used.

He took them through the warehouse, pointed out tower sections and old antennas to give a visual of some of the things the company installs. Byrne referred to it as an introductory or instruction period with some hands-on. At the tower site, he demonstrated the technique of belting off. He described the men as “learning procedures”. At about ten to fifteen feet above ground he gave some instruction, taking the langet and tying it around and asking them to look at what he was doing and to duplicate it. He referred to this being the “learning phase”.

He discussed the position of their feet and its importance and the different ways of putting on your langet. [ 35 ] If find that this evidence is capable of supporting the Review Commissioner’s finding that both testing and training occurred on March 3, 2000. His characterization of the evidence that it did involve training by the foreman, is not patently unreasonable. [ 36 ] The Review Commissioner outlined in his decision the reasons of Lewis-Field and the employer’s position, both of which detail the evidence taken at both review levels.

Therefore, the Review Commissioner was aware of the evidence that was accepted and relied on by Lewis-Field. It is difficult to find support for the applicants’ position that the Review Commissioner failed to consider relevant evidence that may have led to a different outcome. [ 37 ] The applicants further argued that this activity did not subject the men to the hazards of the industry. There is overwhelming evidence to the contrary. The men were taken to a tower site that Westower maintains. The major hazard in this industry is falling from a tower.

The men were exposed to this hazard and tragically, it resulted in the death of David Winsor. [ 38 ] The Review Commissioner found that the Commission did not follow the legislation appropriately. He found that the legislation does not preclude coverage for a learner who is undergoing training just because testing or evaluation is also involved. Indeed, it would not be unusual in any training process for a learner to be evaluated from time to time to determine if the concepts are being grasped. His finding is not patently unreasonable.

The legislation does not state that if testing is also involved in the training, then coverage would not be granted. Nor does it state that the training would have to be of any particular duration or any particular type. The purpose of a judicial review is not to review the Review Commissioner’s decision on its merits but rather, to determine whether such a decision is patently unreasonable given the statutory provisions governing the Commission and the Review Commission and the evidence adduced. The Review Commissioner’s

interpretation of learner is one that the legislation can reasonable bear. [ 39 ] The applications to quash the decisions of the Review Commissioner are denied with costs. Applications dismissed.