2011 NBCA 76, 2011 NBCA 76

COURT OF APPEAL OF NEW BRUNSWICK 13-11-CA VSL CANADA LTD. APPELLANT VSL CANADA LTÉE APPELANTE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION, DENNIS DUGUAY, FLORENT McGRAW, PAUL EMILE ROBICHAUD, ALDERIO ROUSSELLE, BILLY JOE ROUSSELLE, JACQUES ROUSSEL AND MARC ROUSSELLE RESPONDENTS COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL, DENNIS DUGUAY, FLORENT McGRAW, PAUL EMILE ROBICHAUD, ALDERIO ROUSSELLE, BILLY JOE ROUSSELLE, JACQUES ROUSSEL ET MARC ROUSSELLE INTIMÉS VSL Canada Ltd. v.

Workplace Health Safety and Compensation Commission and Duguay et al., 2011 NBCA76 VSL Canada Ltée c. Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et Duguay et autres, 2011 NBCA 76 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Robertson The Honourable Justice Quigg CORAM : L’honorable juge en chef Drapeau L’honorable juge Robertson L’honorable juge Quigg Appeals Tribunal under the Workplace Health, Safety and Compensation Commission Act : October 13, 2010 Tribunal d’appel constitué en vertu de la

Loi sur la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : le 13 octobre 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard and Judgment rendered: May 18, 2011 Appel entendu et jugement rendu : Le 18 mai 2011 Reasons delivered: September 8, 2011 Motifs déposés : Le ​​​​​​ 8 septembre 2011

Reasons for judgment by: The Honourable Chief Justice Drapeau Motifs de jugement : L’honorable juge en chef Drapeau Concurred in by: The Honourable Justice Robertson The Honourable Justice Quigg Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Quigg Counsel at hearing: For the appellant: James F. LeMesurier For the respondent Commission: Matthew R. Letson The respondent Aldério Rousselle appeared in person. No one appeared for the respondents Dennis Duguay, Florent McGraw, Paul Emile Robichaud, Billy Joe Rousselle, Jacques Roussel and Marc Rousselle.

Avocats à l’audience : Pour l’appelante : James F. LeMesurier Pour la Commission intimée : Matthew R. Letson L’intimé Aldério Rousselle a comparu en personne. Personne n’a comparu pour les intimés Dennis Duguay, Florent McGraw, Paul Emile Robichaud, Billy Joe Rousselle, Jacques Roussel et Marc Rousselle. THE COURT The appeal is dismissed without costs.

The Appeals Tribunal did not commit reversible error: (1) in determining the individual respondents were in the course of employment when the employer-provided vehicle in which they were commuting to the job site left the public highway and rolled on the roadside; and (2) in confirming the Commission’s acceptance of the follow-up claims under the Workers’ Compensation Act . LA COUR Rejette l’appel sans dépens.

Le Tribunal d’appel n’a pas commis d’erreur justifiant l’infirmation de sa décision (1) en déterminant que chacun des intimés était « au cours de l’emploi » lorsque le véhicule fourni par l’employeur, dans lequel ils se rendaient au lieu de travail, a quitté la route publique et a capoté sur le bas-côté et (2) en confirmant l’acceptation par la Commission des demandes d’indemnisation présentées sous le régime de la

Loi sur les accidents du travail . The judgment of the Court was delivered by DRAPEAU, C.J.N.B.

I. Introduction [1] Dennis Duguay, Florent McGraw, Paul Emile Robichaud, Aldério Rousselle, Billy Joe Rousselle, JacquesRoussel and Marc Rousselle were injured while commuting to work in a vehicle provided for that purpose by their employer, VSLCanada Ltd. After their claims for benefits were accepted by the Workplace Health, Safety and Compensation Commission, VSLappealed, unsuccessfully, to the Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act,S.N.B. 1994, c. W-14 (the “WHSCC Act”).

VSL now appeals against the Appeals Tribunal’s decision to confirm the Commission’sacceptance of the claims. [2] It is axiomatic that the following two distinct requirements must be met for an accident to be compensableunder the Workers’ Compensation Act, R.S.N.B. 1973, c. W-13 (the “WC Act”): it must have arisen “out of” and “in the course” ofemployment. In its written submission, VSL rightly conceded the injury-causing accident arose “out of” the claimants’ employment.

Thesole issue on appeal is whether the Appeals Tribunal committed reversible error in determining the accident happened “in the course of”employment. [3] By virtue of VSL’s concession, it is presumed the accident also arose “in the course of” the claimants’employment unless there is “evidence to the contrary”: s. 7(2) of the WC Act. VSL contends there is such evidence and, consequently,that the Appeals Tribunal’s reliance on the statutory presumption was unjustified at law.

VSL further submits the Appeals Tribunalcommitted reversible error by: (1) failing to give effect to this Court’s decision in Workmen’s Compensation Board v. Boissonneault(1977), (NB CA), 18 N.B.R. (2d) 621, [1977] N.B.J.

No. 182 (C.A.) (QL), which, in VSL’s submission, compelleddisallowance of the claims; (2) finding VSL was in care and control of the vehicle at the time of the accident, a state of affairs thatbrought into play a Commission Policy by which workers are considered in the course of employment while transported to the job site ina vehicle provided by the employer; and (3) making palpable and overriding errors in its assessment of the factual record. [4] After hearing from counsel for VSL, the Court dismissed the appeal, with reasons to follow.

In abridged form,my reasons for concurring in that disposition are: (1) the presumption under s. 7(2) is engaged since there is no evidence tending tocontradict or refute the hypothesis that the claimants were in the course of employment at the time of the accident;

(2) Boissonneault isdistinguishable on the facts and, therefore, not controlling of the case at hand; and (3) the fact that VSL provided the vehicle to conveythe claimants to the job site is sufficient to put the vehicle in its care and control for the purposes of the Commission Policy mentionedabove. In my respectful judgment, the Appeals Tribunal did not make any material error of law, principle or fact in dismissing VSL’sappeal.

Confirmation of the Commission’s allowance of the claims is, indeed, the appropriate outcome (whether the presumption unders. 7(2) of the WC Act is applied or left out of the equation) once it is accepted the accident occurred while the claimants were commutingto the worksite in a vehicle provided for that purpose by their employer. II. The Legislative and Policy Context [5] The decision under appeal can only be fully appreciated after acquiring an elementary acquaintance with thekey provisions of the WC Act and the Commission’s policies pertaining to the “in the course of employment” requirement. A.

Pertinent legislation (1) “In the course of” [6] Pursuant to s. 7(1) of the WC Act, it is a condition precedent to benefits entitlement that the injury-causingaccident arose “out of” and “in the course of” the claimant’s employment. The provision reads:

7(1) When personal injury or death is caused to a worker by accident arising out of and in the course of his employment in an industry within the scope of this Part, compensation shall be paid to that worker or his dependents, as the case may be, as hereinafter provided, unless the accident was, in the opinion of the Commission, intentionally caused by him, or was wholly or principally due to intoxication or serious or wilful misconduct on the part of the worker and did not result in the death or serious and permanent disability of the worker. 7(1) Lorsqu’un travailleur subit une lésion corporelle ou décède par suite d’un accident survenant du fait et au cours de son emploi dans une industrie entrant dans le champ d’application de la présente Partie, une indemnité doit être payée à ce travailleur ou aux personnes à sa charge, selon le cas, comme il est prévu ci-après, sauf si l’accident a été, de l’avis de la Commission, intentionnellement causé par le travailleur ou dû totalement ou principalement à l’ivresse ou l’inconduite grave ou volontaire du travailleur et s’il n’a pas provoqué la mort ni une invalidité grave et permanente du travailleur.

The expressions “out of” and “in the course of” are not synonymous. They articulate distinct requirements and each must be met for an accident to qualify under s. 7(1) .

Generally speaking, the first requirement is met where there is some nexus between the employment and the injury while the second is satisfied if the accident occurs at a time and place consistent with the claimant’s employment and while he or she is actually working or engaged in an activity associated with the employment (the tests of “time”, “place” and “activity” under the Commission Policy on point). [ 7 ] That said, an accident that arises out of a claimant’s employment commonly occurs in the course of his or her employment, and vice versa .

It is undoubtedly that experience-steeped understanding of employment’s essential nature which led the Legislature to recognize the presumption found in s. 7(2) of the WC Act : 7(2) When the accident arose out of the employment, in the absence of any evidence to the contrary, it shall be presumed that it occurred in the course of the employment, and when the accident occurred in the course of employment, in the absence of any evidence to the contrary, it shall be presumed that it arose out of the employment. 7(2) Lorsque l’accident s’est produit du fait de l’emploi, en l’absence de preuve contraire, il est présumé s’être produit au cours de l’emploi et lorsque l’accident s’est produit au cours de l’emploi, en l’absence de preuve contraire, il est présumé s’être produit du fait de l’emploi. [ 8 ] Nevertheless, where there is evidence which contradicts or refutes the hypothesis that the accident arose in the course of a claimant’s employment, the presumption under s. 7(2) is neutralized.

In that event, the Commission must weigh all the evidence and determine whether the accident did, as a matter of fact and on a balance of probabilities, arise in the course of employment.

Section 7(2.1) deals with that scenario: 7(2.1) Where there is any evidence that an accident did not arise […] in the course of the employment, the Commission shall weigh all the evidence before it and determine, on a preponderance of evidence, whether the accident arose […] in the course of the employment […]. 7(2.1) Lorsqu’il existe une preuve qu’un accident ne s’est pas produit […] au cours de l’emploi, la Commission doit prendre en considération toutes les preuves devant elle et décider, selon la prépondérance des preuves, si l’accident s’est produit […] au cours de l’emploi […]. [ 9 ] As noted in my introductory remarks, VSL concedes the accident arose out of the claimants’ employment.

It follows the accident also arose in the course of their employment unless there is evidence to the contrary. VSL contends the record reveals ample rebutting evidence and that, consequently, the Appeals Tribunal committed reversible error of law in giving effect to the statutory presumption. B. Commission Policies

(1) Policy 21-100 (“Conditions for Entitlement – General Principles”) [ 10 ] The following are some of the excerpts of Policy 21-100 referenced in the record: PURPOSE The purpose of this policy is to outline the decision-making principles for determining entitlement to compensation. […] GLOSSARY […] Evidence to the contrary – any information that may suggest the accident did not arise out of and in the course of employment. […] Presumption – finding of a basic fact gives rise to existence of presumed fact, until presumption is rebutted. (Adapted from Black’s Law Dictionary) POLICY STATEMENTS 1.0 General When workplace injuries occur, WorkSafeNB uses a three-step process to determine if an accident is compensable: • Step 1 – WorkSafeNB determines if a claim is eligible to be adjudicated for compensation (pre-adjudication). • Step 2 – if the claim is eligible for adjudication, WorkSafeNB gathers information related to the claim on which to make a decision. • Step 3 – WorkSafeNB uses

section 7 of the WC Act to determine if the accident “arose out of and in the course of employment”. […] 3.2 Information Related to The Accident Arising in the Course of Employment WorkSafeNB gathers information related to the test of time, place and activity to determine if an accident arose “in the course of employment” . The injury must be shown to have arisen within the time and space boundaries of the employment, and in the course of an activity whose purpose is related to the employment.

To satisfy this test, WorkSafeNB gathers information to determine if: • The injury occurred at a time that is consistent with when the worker typically performs the employment or at a time that the worker has been asked to perform activities for the employment; • The injury occurred at a location which is consistent with the place of employment or the employers’ premises; and • The activity being performed at that time and in that place was for the purpose or benefit of the employer’s business or related to the employer’s business.

WorkSafeNB accepts that an accident arose in the course of employment when all three of these tests have been met. […] 4.2 Presumption Clause Section 7(2) of the WC Act contains a provision called a presumption, which is used when there is no evidence to contradict that an injury either arose “out of the employment” or “in the course of employment”. During adjudication, if the information shows that the accident arose out of the employment, WorkSafeNB must presume that it occurred in the course of employment, unless there is evidence to the contrary.

Similarly, if information shows that the accident occurred in the course of employment, then WorkSafeNB must presume that it arose out of the employment, unless there is evidence to the contrary. When information shows that one of these tests has been met, and there is no evidence to the contrary regarding the other test, then WorkSafeNB accepts the claim.

(2) Policy 21-104 (“Conditions for Entitlement – Test for Time, Place and Activity”) [ 11 ] Here are some of the excerpts of Policy 21-104 mentioned in the record: PURPOSE The purpose of this policy is to further define the criteria used to identify if an accident meets the tests of time, place and activity. As outlined in Policy 21-100 Conditions for Entitlement – General Principles, WorkSafeNB applies these three tests, along with other information (e.g., medical information) when deciding if an accident arose out of and in the course of employment.

GLOSSARY Care and Control – power or authority to manage, direct, restrict, regulate, govern, administer, or oversee. (adapted from Black’s Law Dictionary). POLICY STATEMENTS

1.0 General [...] WorkSafeNB determines if the accident occurred in the course of employment by gathering information to show that: • The accident occurred at a time that is consistent with when the worker typically performs the employment or at a time when the worker has been asked to perform activities for the employment (section 1.1); and • The accident occurred at a place that is consistent with the place of employment or the employer's premises (section 1.2) […] 1.1 Test of “Time” When gathering information to determine if the accident occurred in the course of employment, WorkSafeNB must be satisfied that the accident happened at a time that is consistent with when the injured worker is normally working. (pp. 69-70) 1.2 Test of “Place” […] Therefore, an injury is generally considered to have occurred in the course of employment when: […] • The worker is at the scene specifically because of the employment. (p. 71) […] 1.3 Test of “Activity” To determine if an accident arose out of the employment, WorkSafeNB must gather information to determine if the activity being performed at that time and in that place was for the purpose or benefit of the employer's business or related to the employer's business.

These activities may be: […] Informal - the activities are related to the employment, but are not part of the normal tasks or assigned work. (p. 72) […]

2.0 Special Circumstances Sometimes it is difficult to determine if an activity is work related, or if the accident occurred at a place that is considered the employer's premises. […] […] Where an accident occurs at a location other than on the employer's premises, WorkSafeNB must consider whether the worker was exposed to the risk because of the employment or as a member of the general public. 2.5 Work-related Travel […] Workers are considered to be in the course of employment while being transported to and from the employer's premises or job site in a vehicle under the care and control of the employer. […] 2.9 Parking Lots and Private Roads [...] Workers are considered to be on the employer's premises while using [...] [a] remote, public road segment that essentially serves as a private road (but is not owned by the employer) to the employer's worksite.

In this situation, the use of the road must be necessary to access the worksite, the worker must be making reasonable and permitted use of the access route, and the accident must result from a hazard of the route. III. Factual and Procedural Background [ 12 ] The facts are relatively straightforward, and substantially uncontested. [ 13 ] VSL is in the business of fabricating and installing concrete reinforcing steel, the latter commonly called “rebar work”. VSL operates throughout Canada and the U.S.A.

In New Brunswick, its base of operation is in Saint John, but job sites “can be located anywhere within the province […], from the center of the largest cities to a more rural or isolated location” (p. 16 of the Statement of Facts). [ 14 ] At the time of the accident, VSL was engaged in work at the Caribou Mines Wind Farm Project site, which lies in a remote uninhabited part of Restigouche County in northern New Brunswick. To access that site, workers had to travel a total of approximately 70 kilometers, first over Highway 180 and then over a secondary dirt road.

Highway 180 is a chip-sealed public roadway widely known as the “Road to Resources” precisely because it provides access to resource extraction sites in remote uninhabited areas of Gloucester and Restigouche Counties. Both sides advised the Appeals Tribunal a 4 x 4 was needed to reach the job site (pp. 91-91 of the Statement of Facts). [ 15 ] Shortly before 8:00 a.m. on October 22, 2008, the individual respondents boarded a rented all-wheel-drive utility vehicle provided by VSL to transport them, as well as work-related tools and equipment, to the Caribou Mines worksite.

En route to the worksite from the pre-arranged departure point (the Tim Hortons outlet situated at the Bathurst end of the Road to Resources), the vehicle left the roadway and rolled after hitting the shoulder. The accident took place before reaching the secondary road leading to the Caribou Mines worksite. At the time, the vehicle, which was insured under a policy of insurance issued to and paid for by VSL, was operated by a foreman designated by VSL as the “driver” in the “long term” rental agreement it had previously executed.

As a result of the accident, the occupants, including the driver, were injured and, in due course, each claimed workers’ compensation benefits.

[ 16 ] The formal terms and conditions of the individual respondents’ employment were defined by the collective agreement between VSL and the International Association of Bridge, Structural Ornamental and Reinforcing Iron Workers, Local Union 842. Under that agreement, workers were entitled, depending on the distance between their “address of record” and the job site, to either a travel or a room and board allowance, but they were not paid for travel to work.

The normal hours of work from Monday to Friday consisted of eight hours, between 7 a.m. and 4 p.m. [ 17 ] Nothing in the collective agreement obligated VSL to provide its workers with transportation to any job site. That said, given the poor condition of the primary and secondary access roads and the remote location of the Caribou Mines worksite, it was indisputably in VSL’s best interest to provide its workers with commuting transportation.

In fact, some of the individual respondents had warned VSL they were not prepared to risk damage to their private vehicles by travelling to the Caribou Mines job site and would not work there if VSL did not provide “a way to get to that site” (p. 91 of the Statement of Facts). As well, common sense dictates there are significant advantages flowing from workers travelling together and arriving at the job site at the same time.

Finally, while VSL did not require its workers to travel to the job site in the vehicle it provided for that purpose, they were expected to do so. [ 18 ] On October 27, 2008, VSL submitted to the Commission a completed Form 67 (“Report of Accident or Industrial Disease”) in which it did not answer the question of whether the accident occurred on its “premises or job site”, but described the “work area” as “on route to [job site]”.

In the accompanying letter, VSL stated that it did not believe the “accident is compensable under the Workers Compensation Act , as it occurred on a public highway while the individuals were travelling to the worksite, prior to regular working hours”. VSL emphasized it was filing the Form 67 “out of an abundance of caution in all of the circumstances”. [ 19 ] By letter dated November 7, 2008, the Commission advised VSL the individual respondents’ claims had been accepted based upon a consideration and application of Policy 21-104 (“Conditions for Entitlement – Test for Time, Place and Activity”).

As will emerge, the key provision of Policy 21-104 is paragraph 2.5 (“Work-related Travel”). [ 20 ] VSL then turned to the Appeals Tribunal, contending the claims should have been disallowed because the accident did not arise “out of” and “in the course of” employment, having regard primarily to the following propositions: (1) the accident occurred while the workers were travelling on a public road and had not yet reached the job site; (2) their job (as described in the collective agreement between the claimants’ union and VSL) did not expressly include travelling to job sites and they were not remunerated for time spent on the road to the worksite; and (3) the vehicle, which was provided “gratuitously” by VSL, was not under its care and control at the time of the accident. [ 21 ] At the hearing on May 19, 2010, the issue before the Appeals Tribunal was none other than the sustainability of the Commission’s “acceptance of the claim[s]” (p. 3 of the Statement of Facts).

The Appeals Tribunal heard extensive representations by counsel for VSL and a workers’ advocate, both with respect to the law and the facts, as well as unsworn explanatory statements by a VSL representative and several claimants. No objection was then voiced regarding the composition of the Appeals Tribunal or the procedure it followed in gathering “evidence”, and none was raised before this Court. [ 22 ] On October 13, 2010, the Appeals Tribunal dismissed VSL’s appeal. It provided the following

summary of its reasons for decision: The Appeals Panel concludes, based on subsection 7(1) of the Act , that this accident occurred out of and in the course of employment of the seven claimants injured in the October 22, 2008, motor vehicle accident on route 180. The Panel supports its decision on the criteria of time, place and activity detailed in policy 21-104 and cited earlier. As for the application of subsection 7(2) of the Act , the Panel agrees that the appellant did not bring forth “evidence to the contrary” to convince the Panel that the tests of time and place had not been met in accepting this claim.

As a result, the Panel denies this appeal since the information in the Appeal Records and that presented at the hearing showed, in

summary, the following: • The appellant had rented vans for employees to travel to and from as well as on the worksite in question. The vans for the transportation of employees and equipment thus became part of this “employer’s premises” [policy 21-104]. • Those claimants living at home joined those living at the hotel at a pre-determined place and time to travel to that worksite on October 22, 2008, in that rented van.

• The accident occurred on Wednesday, October 22, 2008, at 0800 hours [document E-1]. Eight o’clock in the morning is considered “a time that is consistent with when the injured worker is normally working” [policy 21-104]. • The accident occurred while traveling in the said van on route 180 at kilometer 41.4 traveling west [document E-1].

The distance/road required to be traveled is considered as the only and the most direct route to reach that job site and that qualifies for “being in the course of employment” [policy 21-104]. • The road was slippery and snow covered [document E-1], and those claimants were “exposed to the risk because of the employment” and not “as a member of the general public” on that day at that time.

Therefore, those workers were “at the scene specifically because of the employment” with the appellant at the assigned job site [policy 21-104]. • The appellant expected the claimants to use the rented van for their transportation and that of the equipment to that particular job site. The tasks of operating the vehicle and being passengers in it become activities related to their employment.

The tests of time, place and activity have been met showing that the claimants were injured on October 22, 2008, in a motor vehicle accident, and this accident had arisen out of and in the course of their employment with the appellant. V. Analysis and Decision [ 23 ]

Section 34 of the WC Act invests the Commission with exclusive jurisdiction to determine whether an accident occurred in the course of a claimant’s employment: 34(1) Except as provided in sections 42.1 and 42.2, the Commission has exclusive jurisdiction to examine into, hear and determine all matters and questions arising under this Part and as to any matter or thing in respect to which any power, authority or discretion is conferred upon the Commission, and the action or decision of the Commission thereon shall be final and conclusive and shall not be open to question or review in any court, and no proceedings by or before the Commission shall be restrained by injunction or other process or proceeding in any court. 34(2) Without thereby limiting the generality of the provisions of subsection (1), such exclusive jurisdiction extends to determining: […] (

j) whether an accident arose out of and in the course of an employment within the scope of this Act. 34(1) Sauf dans les cas prévus aux articles 42.1 et 42.2, la Commission a compétence exclusive pour instruire, entendre et juger toutes les affaires et questions se rapportant à la présente

Partie et toute affaire ou chose à l’égard desquelles un pouvoir, une autorisation ou une discrétion est conférée à la Commission; l’action ou la décision de la Commission est alors définitive et péremptoire et n’est susceptible de contestation ou de révision devant aucun tribunal, et aucune procédure engagée par la Commission ou devant elle ne peut être entravée par injonction ou autre acte de procédure ou instance devant aucun tribunal. 34(2) Sans que cela limite le caractère général des dispositions du paragraphe (1), cette compétence exclusive s’étend à la détermination : […]

j) de la question de savoir si l’accident est survenu du fait ou au cours d’un emploi entrant dans le champ d’application de la présente loi. The Commission’s exclusive jurisdiction under s. 34 forecloses the substitution of a different conclusion on the issues within its purview

simply because the Court might take a divergent view of the record. However, it is trite law that s. 34 does not exclude appellateintervention based upon errors of law or jurisdiction (see Crothers v. Martin et al. (1982), (NB CA), 44 N.B.R. (2d)59, [1982] N.B.J. No. 392 (C.A.) (QL), per Stratton, C.J.N.B. for the Court at paras. 6-9).

That is so because s. 21(12) of the WHSCCAct provides a right of appeal for errors of that nature against any decision, order or ruling of the Appeals Tribunal: 21(12) Any decision, order or ruling of theAppeals Tribunal shall be final, subject onlyto an appeal to the Court of Appeal involvingany question as to its jurisdiction or anyquestion of law. 21(12) Toute décision du Tribunal d’appel estdéfinitive, sujet seulement à un appel devantla Cour d’appel concernant toute question decompétence ou de droit. [24] The object of the WHSCC Act and the WC Act as well as the jurisprudence emanating from this Court since theenactment of s. 21(12) militate strongly against a narrow

interpretation of the phrase “involving any question as to its jurisdiction or anyquestion of law”. After all, the Legislature granted the right of appeal on questions of law and jurisdiction, without any words oflimitation. The stakeholders, including employers and the working men and women of this Province, would be ill-served by reading intos. 21(12) restrictions on the broadly formulated right of appeal that would limit the range of permissible error-correcting intervention bythis Court. As Bell J.A. observed in Certainteed Gypsum Canada, Inc. v.

Workplace Health, Safety and Compensation Commission andDyer, 2011 NBCA 45, [2011] N.B.J. No. 168 (QL) “[g]iven that this matter comes to the Court by way of appeal rather than judicialreview it would be inappropriate to restrict questions of law as proposed in [Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190]”. The Legislature surely did not intend to afford illusory rights of appeal via the enactment of s. 21(12). [25] Correctness is the review standard for pure questions of law and jurisdiction while reasonableness is theapplicable review test for questions of mixed law and fact (see Gallant v.

Workplace Health, Safety and Compensation Commission(N.B.) (2000), (NB CA), 228 N.B.R. (2d) 98, [2000] N.B.J. No. 320 (C.A.) (QL) and City of Saint John v. TheWorkplace Health, Safety Compensation Commission and Rowe, 2008 NBCA 83, 338 N.B.R. (2d) 213, where Robertson J.A. referencessome of the other cases on the subject).

As will be seen, I conclude the Appeals Tribunal: (1) correctly determined the questions of lawsubmitted for its consideration, notably the meaning of the statutory expressions “in the course of […] employment” and “evidence tothe contrary”, the meaning of the expression “care and control” in paragraph 2.5 of Policy 21-104 and the applicability of Boissonneault;and (2) made reasonable determinations of the questions of mixed law and fact, including whether on the facts: (

a) the individualrespondents were in the course of employment; and (

b) VSL was in care and control of the vehicle at the time of the accident. [26] That said, and as can readily be discerned from the text of s. 21(12), the Legislature did not expressly providefor a right of appeal against errors of fact, even those of the palpable and overriding kind.

In my view, no such express conferral wasnecessary, particularly in light of s. 34(4) of the WC Act, which imposes upon the Commission the duty to base its decisions “upon thereal merits of the case” and s. 21(9) of the WHSCC Act, which does likewise for the Appeals Tribunal. [27] Appeals have been allowed, admittedly on relatively rare occasions, for factual errors on the part of theAppeals Tribunal.

The Court’s decisions in those instances must be read as giving effect to the often unstated view that the errorsreflected non-compliance with the law, specifically the statutory obligation to determine claims upon their real merits. As Larlee J.A.noted for a unanimous panel in Kelley v.

New Brunswick (Workplace Health, Safety and Compensation Commission, 2009 NBCA 30,345 N.B.R. (2d) 35, “a statutory body is confined to act in accordance with its lawful jurisdiction” (para. 10). [28] In short, once it is shown an error of fact was instrumental in the success or failure of an appeal to the AppealsTribunal, it cannot be said the outcome flowed from a statute-compliant exercise of jurisdiction, i.e. one based on the case’s real merits,hence the emergence of an appealable error within the ambit of s. 21(12) of the WHSCC Act (see Savoie v.

Workers’ CompensationBoard (N.B.) (1995), (NB CA), 163 N.B.R. (2d) 172, [1995] N.B.J. No. 228 (C.A.) (QL), at paras. 5 and 11).Whether the decision-vitiating error of fact constitutes an error of law or an error as to jurisdiction is an issue of no more than academicinterest: the bottom line is that the error opens the door to appellate intervention under s. 21(12). [29] Needless to say, findings of fact that played no significant role in shaping the outcome of the proceedingsbefore the Appeals Tribunal cannot give rise to appealable questions of law or jurisdiction.

For an error of fact to be a reviewable andreversible error under s. 21(12), it must be: (1) the result of a palpable and overriding error in the assessment of the information in therecord (see Fundy Linen Service Inc. v. Workplace Health, Safety and Compensation Commission, 2009 NBCA 13, 341 N.B.R. (2d) 286,per Robertson J.A., at para. 12, and, more recently, New Brunswick Power Generation Corporation v. Workplace Health, Safety andCompensation Commission and Dashwood, 2011 NBCA 47, [2011] N.B.J.

No. 166 (QL), per Green J.A., at paras. 8-9); (2) reflective ofa failure to consider material information or material admissions; or (3) the by-product of an

interpretation of the record that noreasonable person could adopt (see Brun v. New Brunswick (Workplace Health, Safety and Compensation Commission) (1996), (NB CA), 183 N.B.R. (2d) 172, [1996] N.B.J. No. 507 (C.A.) (QL), per Bastarache J.A., as he then was, at para. 10, andMorrell v. New Brunswick (Workplace Health, Safety and Compensation Commission) (1999), (NB CA), 213N.B.R. (2d) 201, [1999] N.B.J. No. 62 (QL), per Turnbull J.A., at para. 4). As will appear, I conclude none of the errors of fact VSLattributes to the Appeals Tribunal constitutes reviewable and reversible error within the ambit of s. 21(12).

[ 30 ] VSL argues the Appeals Tribunal committed reversible error: (1) by finding the accident arose in the course of employment, having regard to “the undisputed evidence that such accident occurred on NB Route 180, while the injured workers were en route to their workplace”; (2) in applying the presumption articulated in s. 7(2) despite evidence inconsistent with the hypothesis that the accident arose in the course employment and, correlatively, in failing to determine that question by reference to the whole of the evidence on point; (3) by finding the vehicle used in transporting the claimants became part of the “employer’s premises” within the meaning of Policy 21-104; (4) by basing its decision on a premise, namely that the accident “did not take place on a highway or public street or road”, which was unsubstantiated and, indeed, “contrary to the evidence on record”; and (5) by basing its decision on facts “for which there was no evidentiary basis”, specifically the facts to which reference is made in the following excerpts of the Appeals Tribunal’s decision: Route 180 is described as a tarred public back road which is a kind of short cut between two towns.

It is 131 kilometres long of which 95 per cent of that is completely in the woods with no electric or other services since nobody lives along that road. The surface of only the first ten kilometers at each end is better kept because of the people living in those sections; the rest is kept open all year round because people have to use that road to get to work. Besides that, that particular road is not much traveled especially during wintertime since it is icy. The claimants and the appellant have no choice but to travel on this road to get to that particular worksite.

The claimants also explained that it is not every vehicle that can travel all the way particularly after taking the crossing to get on the site and that is the reason they travel in the rented 4x4 van furnished by the appellant as they did on October 22, 2008. The Appeals Panel concludes that the facts in this case cannot be compared with those of other cases presented at the hearing since route 180 is not a highway nor a “public street or road” used continuously by all people to get from A to B in one direction or another.

The claimants had no choice but to use that road since it is the only way to get to the worksite located completely in the woods. Unfortunately, since that road is mostly used to get to work during the winter or when it snows, it is not as well kept as a highway. A.

Grounds (4) and (5): the nature and condition of Route 180, the Road to Resources [ 31 ] The short answer to ground (4) is that the Appeals Tribunal’s reasons for decision reveal it did accept Route 180 was a public roadway, albeit one that was not “used continuously by all people to get from A to B in one direction or another.” On that basis alone, ground (4) fails. But, there is another, more general answer: where, as here, workers are being transported to the worksite in a vehicle provided by their employer for that purpose, it is of no moment whether the accident took place on a private or public roadway.

I will return to that issue in short order. [ 32 ] As for ground (5), it may be that there is no direct information in the record to substantiate some of the Appeals Tribunal’s observations regarding the nature and condition of Route 180. That said, several of the observations to which VSL takes exception can be justified on the basis of inferences the Appeals Tribunal was reasonably entitled to draw.

More importantly, none of the contested observations relate to information that might properly weigh in the balance in a case such as this, namely one where the claimants were injured while en route to the worksite in a conveyance provided by the employer for that purpose. It may be opportune to recall that appeals are taken from the disposition prescribed in first instance, and not from the reasons offered in support. As the Court noted in Veno v.

United General Insurance Corporation , 2008 NBCA 39 , 330 N.B.R. (2d) 237 : It is the judgment that binds, not the supporting reasons, and while appellate review will almost invariably delve into the latter, the appeal is taken from the former. The reasons may be flawed, but the order may nonetheless be right. [para. 76] See, as well, J.D. Irving, Limited v.

Hughes and Astle , 2010 NBCA 23 , 358 N.B.R. (2d) 49 . [ 33 ] Assuming, without deciding, that the record does not provide foundational support for all of the features of the Appeals Tribunal’s description of Route 180 and that judicial notice cannot fill the gap, it remains that the pivotal finding – the claimants were injured on their way to work in a vehicle provided by the employer for that purpose – stands untainted by error. In my respectful judgment, that finding should compel the conclusion that the accident occurred in the course of employment in all but the most exceptional cases. B.

Ground (3): finding the vehicle used in transporting the claimants formed part of the “employer’s premises” [ 34 ] The Appeals Tribunal found the vehicle became part of VSL’s premises once it was occupied by the claimants.

That was so because VSL rented the vehicle “for employees to travel to and from as well as on the worksite”. Recall that paragraph 2.9of Policy 21-104 provides that, in defined circumstances, workers are deemed to be on the employer’s premises when using a “remote,public road segment that essentially serves as a private road (but is not owned by the employer) to the employer’s worksite”.

Thetriggering circumstances are; (1) travelling over the public road must be necessary to reach the worksite; (2) the use of the public roadmust be both permitted and reasonable; and (3) the accident must result from a road hazard. Each of those circumstances avails here.However, I take VSL’s point that the segment of Route 180 where the accident took place did not “essentially serve as a private road […]to the employer’s worksite”, a condition precedent to the application of paragraph 2.9. To my mind, that provision is not engaged in thecircumstances disclosed by the record.

Indeed, it appears to be primarily, if not exclusively, concerned with accidents that occur whilethe worker is commuting to and from the job site in a personal vehicle. [35] Where, as here, the worker is commuting to the job site in a vehicle provided by the employer, the Policyprovision directly on point is paragraph 2.5 (“Work-related Travel”).

It stipulates workers are considered to be in the course ofemployment while being transported to the job site in a vehicle under the care and control of the employer. [36] In my judgment, the Appeals Tribunal’s erroneous invocation of paragraph 2.9 served only to buttress itsconclusion that, having regard to paragraph 2.5, the accident occurred in the course of employment. It follows that the AppealsTribunal’s error falls into the inconsequential and, therefore, harmless category. C.

Grounds (1) and (2): the applicability of the presumption under s. 7(2) and the “in the course of employment” determination [37] These grounds of appeal bring into focus the meaning of two expressions found in the WC Act: “evidence tothe contrary” (s. 7(2)) and “in the course of” employment (s. 7(1)). The

interpretation of those expressions is informed by the followingprinciples. [38] The WC Act is indisputably remedial legislation. As such, by virtue of s. 17 of the

Interpretation Act, R.S.N.B.1973, c. I-13, its provisions must “receive such fair, large and liberal construction and

interpretation as best ensures the attainment of [its]object”. In MacLeod v. Workers’ Compensation Board of Prince Edward Island, [1983] P.E.I.J. No. 57 (P.E.I.S.C.App.Div.) (QL),Mitchell, J.A., later C.J.P.E.I., described the proper approach to the

interpretation of P.E.I.’s workers’ compensation legislation: The Workers' Compensation Act is obviously remedial legislation designed to protect workers and their dependents from the hardship ofeconomic loss sustained through injuries suffered by the worker in the course of his employment.

Section 9 of the

Interpretation Act,S.P.E.I. 1981, c. 18 provides that: 9. Every enactment shall be construed as being remedial, and shall be given such fair, large and liberal construction and

interpretation asbest ensured the attainment of its objects. Accordingly, the Workers' Compensation Act should be interpreted liberally so as to provide compensation for work-related injuries to asmany as can reasonably be seen to fall within its purview. Workers' Compensation Appeal Board v. Penney (1980), (NS CA), 38 N.S.R. (2d) 623; 69 A.P.R. 623 (S.C. App. Div.). [para. 15] See, to the same effect, Dowling v. Prince Edward Island (Workers' Compensation Board), [1994] P.E.I.J. No. 113 (C.A.) (QL) andJardine Transport Ltd. v. Workers’ Compensation Board, (1984) (NB CA), 56 N.B.R. (2d) 387, [1984] N.B.J.

No.257 (C.A.) (QL), at para. 16. Although, admittedly, the WC Act was never “intended to serve as a general compensation scheme thatembraces non-occupational injuries” (see D.W. v. New Brunswick (Workplace Health, Safety and Compensation Commission), 2005NBCA 70, 288 N.B.R. (2d) 26, Robertson J.A. for the Court), its provisions stand to be interpreted in a manner that, broadly speaking,favors inclusion rather than exclusion. [39] In Thibodeau v. Workers’ Compensation Board (N.B.) (1992), (NB CA), 129 N.B.R. (2d)271, [1992] N.B.J. No. 578 (C.A.) (QL), the Court echoed the views of Barry, C.J.K.B.D. in Fleck v.

Workmen’s Compensation Board(1934), (NB KB), 8 M.P.R. 33, [1933] N.B.J. No. 8 (QL), at p. 43, to the effect that the WC Act should “receive abroad and liberal construction, free from entangling technicalities which do not affect the merits of the case […]”. In Thibodeau, theaccident took place at a carpet installer’s home as he loaded work-related equipment into his truck. The Court summarized the salientfacts as follows: Mr. Thibodeau, a carpet installer, injured his back and knee as he was loading a roller used in his work into his truck. The accident

occurred at his home, where he kept tools and equipment, including the roller, necessary for his work. The accident happened atapproximately 8.00 a.m. Had the accident not taken place, he would have driven to his employer's store to pick up carpet before drivingto the customer's home to install the carpet. He was paid by piece work and not on an hourly basis. The Appeals Board determined that Mr. Thibodeau was a worker employed by Grand Falls Carpet Ltd. on January 2, 1991 when theaccident occurred, but that he was not acting in the course of his employment and, thus, not entitled to compensation.

It is our view that the Appeals Board, after finding Mr. Thibodeau to be a worker employed by Grand Falls Carpet, placed too muchemphasis on the basis of Mr. Thibodeau's remuneration and, thus, erred when it concluded that he was not acting in the course of hisemployment at the time he was injured. The fact that his tools and equipment were at his home rather than at his employer's store or atthe customer's residence is, in our opinion, immaterial.

They were necessary for him to perform his work and, thus, he was in the courseof his employment while loading them in the vehicle taking him to the job. [paras. 4-6] Clearly, only an expansive

interpretation of the “in the course of employment” requirement could yield reversal of the decision of theAppeals Board, as the Appeals Tribunal was then called. [40] Similarly, the claimant benefitted from a large and liberal construction of that requirement in Gallie v.Workplace Health, Safety and Compensation Commission (N.B.) (1996), (NB CA), 181 N.B.R. (2d) 7, [1996] N.B.J.No. 436 (C.A.) (QL).

In that case, the worker’s slip and fall close to, but nonetheless outside the employer’s premises was held to be acompensable accident. [41] Thus, in light of Thibodeau and Gallie, the individual respondents would likely have been entitled tocompensation benefits if injured while loading the work-related equipment and tools into the vehicle provided by VSL, or if injured as aresult of a slip and fall shortly after disembarking in close proximity to the job site. However, on VSL’s view of the law, the individualrespondents would be denied coverage for intervening roadway accidents.

One is left to wonder if the Court is not being invited toimport into what should be a speedy and uncomplicated process hair-splitting factual distinctions and the kind of “entanglingtechnicalities” which Barry, C.J.K.B.D. warned against in Fleck v. Workmen’s Compensation Board, at p. 43. [42] VSL contends the Appeals Tribunal could not rely on the presumption found in s. 7(2) because, in itssubmission, the record features evidence that runs contrary to the hypothesis that the accident arose in the course of employment. Withrespect, I disagree.

For evidence to be “evidence to the contrary” within the meaning of s. 7(2) it must tend to contradict or refute thepresumption. Put another way, the evidence must be inconsistent with the presumption to qualify as “evidence to the contrary” (seePotocan Mining Co. v. New Brunswick (Workers’ Compensation Board) (1993), (NB CA), 142 N.B.R. (2d) 140,[1993] N.B.J. No. 605 (QL), at para. 10, Hoyt, C.J.N.B.). Equivocal evidence will not suffice (see Dunham v. Workmen’s CompensationBoard (1967), (NB CA), 67 D.L.R. (2d) 726, [1967] N.B.J. No. 11 (S.C. App.

Div.) (QL)). [43] In VSL’s submission, the following constitutes evidence to the contrary: the claimants’ remunerated rebarwork did not commence before the Caribou Mines job site; each could have travelled to the job site in his personal vehicle; although theclaimants were commuting to the job site at the time of the accident, it occurred on a public highway. With respect, that evidence,whether considered individually or cumulatively, is not inconsistent with the hypothesis that the accident arose “in the course ofemployment”, a formula that is both broad and general.

In making that point, I can do no better than reproduce the observations ofCromwell J.A., as he then was, in Puddicombe v. Workers’ Compensation Board (N.S.), 2005 NSCA 62, [2005] N.S.J. No. 137 (QL): The first is that the statutory requirement [that the accident arise out of and in the course of employment] is phrased in very broad andgeneral terms. It must be applied in an array of situations. The number of situations is as large as the number of types of jobs which maybe done and the types of injures which may be suffered. The number is virtually limitless.

The standard must be applied, for example, tothe case of a waitress injured while swimming on the employer’s premises on a break (see New Brunswick (Workers/Workmen’sCompensation Board) v. Canadian Pacific Railway Co. Noell, (SCC), [1952] 2 S.C.R. 359), a worker living inemployer-provided premises in a remote area and who is injured when he slips in the shower (Winnipeg (City) v. Manitoba (Workers’Compensation Board), (MB CA), [1998] 3 W.W.R. 378; [1997] M.J. No. 645 (Q.L.) (C.A.)), a sailor who dies of aperforated ulcer while on board his ship at sea (Canada Steamship Lines Inc. v.

Antenucci (1991), (QC CA), 37Q.A.C. 113; [1991] A.Q. No. 640 (Q.L.) (C.A.)) and a worker who is injured by a medical caregiver while seeking medical attention fora previous workplace injury (Keddy v. New Brunswick (Workplace Health, Safety and Compensation Commission) (2002), 2002 NBCA24 , 247 N.B.R. (2d) 284; [2002] N.B.J. No. 91 (Q.L.) (C.A.)). As a result of the generality of the statutory language and the array of situations to which it must be applied, Courts have generallydespaired of reducing the “arising out of and in the course of employment” requirement to a set of rules or even firm guidelines.

Therequirement has been said to have produced “... a bewildering vagueness in

interpretation and conflict in judicial application.” (Noell at p.

368) It has been said that the “atmosphere of legal subtlety” which has grown up around the judicial

interpretation of this requirementmay “... defeat the obvious purpose of the Legislature ...” to afford a simple and speedy method of claiming compensation. (Noell, p.368). As Viscount Haldane wisely observed in Charles R. Davidson & Co. v.

M’Robb, [1918] A.C. 304 at 316 (H.L.), in applying thestatute to particular facts, efforts should be directed “... to giving effect to broad principles with freedom in applying them to individualcircumstances ...” rather than trying to search “... for guidance from mere apparent analogies with the particular facts of previous cases,analogies which rarely embody the full truth.” More recently, the House of Lords approved the remarks of Sir John Donaldson, M.R. inNancollas v.

Insurance Officer, [1985] 1 All E.R. 833 (C.A.) at 840 pointing out that it is not possible to lay down firm rules or evenguidelines for the application of this requirement other than the need to look “... at the factual picture as a whole and [to reject] anyapproach based on the fallacious concept that any one factor is conclusive.” (See Smith (Administratrix of Machin) v. Stages, [1989]H.L.J. No. 30 at para. 45) The second aspect of the problem is that the “arising out of and in the course of employment” requirement must be applied in theparticular context of workers’ compensation law.

Divorced from that context, the requirement that the injury be “in the course ofemployment” could be viewed as being concerned simply with the employee’s contractual duties. The requirement that the injury “ariseout of employment” could be viewed as a matter of whether the work caused the injury. However, it is generally accepted that suchapproaches are too narrow and inappropriate given the workers’ compensation context in which the provision must be interpreted.

So, for example, it has been held that the phrase “in the course of employment” does not simply refer to things done pursuant to acontractual duty, but also to things reasonably incidental to the performance of the contractual duty: see e.g. Noell. As Lord Denning,M.R. put it with customary panache in R. v. Industrial Injuries Commissioner, [1966] 1 All E.R. 97 (C.A.) at 102: This idea that a duty is necessary is all wrong. It does not stand with the decision of the House of Lords itself in Armstrong, Whitworth &Co. v. Redford, [1920] All E.R.

Rep. 316, where there was no duty on the young woman to go to and from the canteen, yet she was heldto be in the course of her employment. Nor does it stand with the decision of the Court of Appeal in Knight v. Howard Wall, Ltd., [1938]4 All E.R. 667, where a boy, who was having his midday meal in a canteen, was injured by a dart. There was no obligation on him to gothere. Yet it was held to be in the course of his employment.

In Harris’s case Lord Atkin made it clear that a duty is not necessary, [1938]4 All E.R. at pp. 835, 836: “There are many things done which the workman is not obliged to do, for he is given a complete discretion as to what to do and where(within limits) to do it - as, for instance, in the case of gamekeepers, and often gardeners. Accidents happen to workmen when takingtheir meals or in other respects not pursuing for the moment their employment.” Nevertheless it is in the course of the employment ....

Similarly, courts have rejected the simple transfer of common law causation principles to the “arising out of employment” requirement.In remarks approved by the Supreme Court of Canada, Donald, J.A. said in Kovach v. British Columbia (Workers’ CompensationBoard), (BC CA), [1999] 1 W.W.R. 498; [1998] B.C.J. No. 1245 (Q.L.) (C.A.); 2000 SCC 3 , [2000] 1S.C.R. 55: No single theory of causation can be said to be infallible or universally applicable. What works for a tort system may be unsuitable for ano fault scheme. It all depends on the policy goals of the system.

The third aspect of the problem is that it is one that lies at the root of the entire statutory scheme. The “arising out of and in the course ofemployment” requirement is not only the test for recovery of benefits under s. 10 of the WCA, but also a key element of whether the barof civil proceedings under s. 28 applies. Thus, the requirement is at the very centre of the historic trade off of the employee’s no faultbenefits for the right to sue and the employer’s freedom from civil actions for the obligation to contribute to the accident fund. AsSopinka, J. observed in Pasiechnyk v.

Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890 at915, this issue relates intimately to the purposes and structure of the workers’ compensation system. I would conclude that the nature of the problem before the Tribunal informs the standard of review analysis as follows. It suggests thatthe broad principles to be deduced from the statutory requirement are matters of general law, but that these guiding legal principles mustof necessity be of a highly general character. Courts should be leery of attempting to rule this area at anything other than the level ofgeneral principle.

History does not bode well for success in generating detailed rules or guidelines. Beyond those general, guidingprinciples, the application of the “arising out of and in the course of employment” requirement is a fact-driven exercise which must beundertaken in light of the broad policies and purposes of the workers’ compensation system. When WCAT is operating in that sphere, thenature of the exercise supports a measure of deference to that highly specialized tribunal. [paras. 24-30]

[Emphasis added.] [44] It is settled law that the expression “in the course of employment” embraces more than just the performance ofthe tasks described in the employment contract; it includes activities that are adjunctive or incidental to the worker’s contractual duties(see Williams v. Bill Williams Pty. Ltd., [1971] 1 N.S.W.L.R. 547 at p. 555, per Mason, J.A). Travel to the job site may not have formedpart of the claimants’ formal contractual duties, but it indisputably was an activity reasonably incidental to their performance (see NewBrunswick (Workers/Workmen's Compensation Board) v.

Canadian Pacific Railway Co., (SCC), [1952] 2 S.C.R. 359and Thibodeau). Additionally, the activity in question was clearly “in furtherance of the employer’s business” (see Kinney v. Workmen’sCompensation Board (1972), (NB CA), 4 N.B.R. (2d) 705, [1972] N.B.J. No. 81 (C.A.) (QL), aff’d [1973] S.C.J. No.7 (QL)).

The evidence which VSL proffers as “evidence to the contrary” is not, in my view, inconsistent with the disputed presumption.There being no evidence to the contrary, the Appeals Tribunal cannot be faulted for concluding that, once it was established the accidentarose out of the claimants’ employment, it was presumed to have occurred in the course of employment by operation of s. 7(2) of the WCAct. [45] That said, I would nonetheless unhesitatingly uphold the Appeals Tribunal’s ultimate disposition without resortto the presumption under s. 7(2).

In sum, it is my view that commuting to the job site in the circumstances revealed by the record was anincident or adjunct of the claimants’ employment and, as such, the activity is captured by the expression “in the course of […]employment” found in s. 7(1) of the WC Act. [46] In the common law world, it has long been accepted that a worker may well be in the course of his or heremployment while on the way to work. As Latham, C.J., noted in Davidson v.

Mould, [1944] HCA 10, 69 C.L.R. 96, there is ampleauthority for the view “that the words ‘course of employment’ do not mark a period beginning and ending with the actual hours ofwork”. More recently, in Garth Dee, Nick McCombie and Gary Newhouse, Workers’ Compensation in Ontario (Toronto: Butterworths,1987), the authors assert, at p. 71, that an accident arises out of and in the course of employment “where a worker is injured while goingto or from work in a conveyance under the control and supervision of, or chartered by, the employer”.

Note that supervision and controlare not relevant considerations where, as here, the employer has chartered the conveyance. In Terence G. Ison, Workers’ Compensation in Canada, 2nd ed. (Toronto: Butterworths, 1989), the author states, at p. 29, that “if an employer provides the transport […] commuting is in the course of employment”. See, as well, Douglas G. Gilbert and L.A.

Liversidge, Workers’ Compensation in Ontario, 3rd ed.(Aurora, Ont.: Canada Law Book Inc., 2001), at p. 23. [47] Mindful of the importance of certainty in this area of the law and the need to simplify and expedite thedetermination of claims for compensation under the WC Act, I would hold that whenever workers are injured while commuting to workin a vehicle provided by the employer for that purpose, the Commission can only very exceptionally conclude the employer did not have“care and control” within the meaning of paragraph 2.5 of Policy 21-104.

As a rule that admits of few, if any, exceptions, theCommission must, on those facts, determine the injury-causing mishap arose out of and in the course of employment.

That rule, which Ionly very reluctantly decline to declare absolute, should foster helpful certainty in this area of the law, one that, let us be plain, is fertileterrain for protracted and ruinous litigation often driven by hair-splitting factual distinctions and “entangling technicalities”. [48] Policies 21-100 and 21-104 are working tools devised to assist in the practical application of theunquestionably nebulous phrase “arising out of and in the course of employment”.

Although there is nothing inherently objectionableabout Commission policies, they must be formulated, interpreted and applied in a manner that is harmonious with the WC Act, asinterpreted by this Court. As Mitchell, J.A. observed in Dowling, an administrative body such as the Commission lacks the mandate toalter the WC Act “by its own policy initiative”. Commission policies that “advance the aims of the legislation are permissible but theCommission cannot usurp the function of the Legislature by making policy which has the effect of altering the statute” (para. 7).

Thoseobservations fully accord with the views on point expressed in D.W. v. Workplace Health, Safety and Compensation Commission and ViaRail Canada Inc. at para. 25, per Robertson J.A. for the Court. [49] Paragraph 2.5 of Policy 21-104 is key: it states that workers are considered to be in the course of employmentwhile transported to and from the employer’s job site in a vehicle under the “care and control” of the employer. The quoted expression isdefined very broadly in Policy 21-104 as the “power or authority to manage, direct, restrict, regulate, govern, administer, or oversee”.

Solong as the Commission applies liberally the “care and control” test and gives effect to the rule articulated in paragraph 47 of thesereasons, I would consider paragraph 2.5 harmonious with the required large and liberal

interpretation of the phrase “arising out of and inthe course of” found in s. 7(1) of the WC Act and, therefore, unobjectionable. [50] VSL had “care and control” of the motor vehicle in which, at the time of the accident, the claimants were beingtransported to the Caribou Mines job site. In those circumstances and in accordance with paragraph 2.5 of Policy 21-104, the accidentarose in the course of the claimants’ employment.

The fact that the motor vehicle was operated by the VSL foreman designated by it as a“driver” under a “long term” rental agreement and the fact that the vehicle was insured under a policy of insurance issued to VSL simplymake even more compelling the already persuasive case for “care and control”.

[ 51 ] Finally, as mentioned, VSL also argues disallowance of the claims was mandatory by virtue of this Court’s decision in Boissonneault . Not surprisingly, the Commission’s response does not rest upon s. 34(4) of the WC Act , which states the Commission “is not bound to follow strict legal precedent”. I suspect the Commission eschewed reliance upon that provision because it does not target decisions of this Court interpreting the WC Act .

If it were otherwise, the Commission’s statutory obligation to determine claims upon their “real merits” would be a trompe l’oeil : after all, at bottom, the disregard of interpretative decisions of this Court effectively entails a disregard of the provisions of the WC Act whose meaning those decisions identify.

That said, while I readily agree that a decision, ruling or order of the Appeals Tribunal at odds with an interpretative decision of this Court is not statute-compliant – Gallie is exactly on point – I cannot accept Boissonneault applies to the case at bar. [ 52 ] In my respectful judgment, that decision, rendered more than four decades ago, is very much a product of its particular record, which bears no more than superficial resemblance to the one assembled for our consideration.

Suffice it to spotlight one distinguishing feature: in Boissonneault , the worker was commuting to work in his own personal vehicle when the accident occurred. The general rule is that, in those circumstances, the accident does not arise out of and in the course of employment (see Dee, McCombie and Newhouse, Workers’ Compensation in Ontario , at p. 71, Ison, Workers’ Compensation in Canada , at pp. 29-31, and Gilbert and Liversidge, Workers’ Compensation in Ontario , at pp. 23-24).

There are several exceptions to that rule, and I would wrap up the discussion on topic by noting the Court in Boissonneault went out of its way to make the point that the record at its disposal did not allow it to find: (1) “Mr. Boissonneault’s home was his base from which it was his duty to work”, (2) “Mr. Boissonneault was being paid for travel time between his home and his employer’s garage at Dalhousie where his work for the day would commence”; and (3) “there was any duty on Mr. Boissonneault to use his own car to travel to and from work when he did not have the use of his employer’s truck”.

The outcome might have been different had any of those facts been established. Additionally, the following features of the decision also bear mention: (1) the Court distinguished Blee v. London & North Eastern Railway Co. , [1937] 4 All E.R. 270 on the grounds that, in that case, “it was either admitted or established that the workman was being paid from the time he left his home on the way to the place of the emergency when he was injured, which fact appears to have been critical to the decision”; and (2) the Court opined that, if the accident happened while Mr.

Boissonneault was driving his employer’s truck to his home or from his home to work, “a strong case could have been made that he was doing something which was part of his contract of service”. VI. Conclusion and Disposition [ 53 ] The Appeals Tribunal did not commit an error of law or jurisdiction in upholding the Commission’s acceptance of the claims filed by the individual respondents. In settling upon that outcome, both bodies correctly determined the injury-causing roadway accident arose “in the course of employment” within the meaning of s. 7(1) of the Workers’ Compensation Act .

Since the accident inarguably arose out of the claimants’ employment, a proposition rightly conceded by VSL, it is presumed the accident occurred in the course of employment unless there is “evidence to the contrary”: s. 7(2) of the WC Act. There is no such evidence and, consequently, VSL’s objection to the application of the statutory presumption must be overruled. Moreover, paragraph 2.5 of Commission Policy 21-104, by itself, compelled acceptance of the claims.

That Policy provision specifies that a worker is considered in the course of employment when injured while being transported to the job site in a vehicle under the care and control of his or her employer. That is precisely the context within which the underlying injury-causing accident took place.

For the reasons summarized hereinabove and fleshed out in the preceding text, I would dismiss the appeal. [ 54 ] Although s. 23(9) of the Workplace Health, Safety Compensation Commission Act invests the Court with the power to make an order of costs in a proceeding such as the present one, it is a power that, historically, has been exercised rather sparingly. The individual respondents are all self-represented and the Commission’s written submission does not make the case for an award of costs in its favour. In the circumstances, I would make no order of costs. ____________________________________ J.

ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK WE CONCUR: ____________________________________

J.T. ROBERTSON, J.A. ____________________________________ KATHLEEN A. QUIGG, J.A.