West Fraser Mills Ltd. Petitioner And: Workers’ Compensation Appeal Tribunal, Wendy Ego, v. Workers’ Compensation Board of British Columbia, 2015 BCSC 1098

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2015 BCSC 1098 Date: 20150625 Docket: S136448 Registry: Vancouver Between: West Fraser Mills Ltd. Petitioner And: Workers’ Compensation Appeal Tribunal, Wendy Ego, and Workers’ Compensation Board of British Columbia Respondents Before: The Honourable Mr. Justice B.D. MacKenzie On judicial review from a decision of the Workers’ Compensation Appeal Tribunal dated July 9, 2013, WCAT Decision No. 2013-01952. Reasons for Judgment (In Chambers) Counsel for the Petitioner: D.J.

Jordan, Q.C. Counsel for the Respondent: Workers’ Compensation Appeal Tribunal J.T. Lovell and K.Z. Koles Counsel for the Respondent: Workers’ Compensation Board of British Columbia L.M. Courtenay and N. Bower Place and Date of Hearing: Vancouver, B.C. March 3-6, 2015 Place and Date of Judgment: Vancouver, B.C. June 25, 2015 Introduction [ 1 ] This is an application by the petitioner, West Fraser Mills Ltd., for judicial review of a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”). The petitioner is a forest company and holder of a forest license.

The respondents are administrative tribunals constituted under the Workers’ Compensation Act , R.S.B.C. 1996, c. 492 (“ WCA ”). According to the petitioner, the essence of this judicial review concerns the scope of authority granted to the Workers’ Compensation Board (“Board”) to promulgate regulations and impose administrative penalties. Background [ 2 ] On April 16, 2010, a tree faller was struck by a

section of a rotting dead fir tree and sustained fatal injuries. He was at that time logging at a work location within the area of a forest license owned by West Fraser Mills. The faller was not an employee of West Fraser Mills, however. He was working for a contractor hired by West Fraser Mills to “trap tree” fall, a method to reduce beetle population levels, within the license area. [ 3 ] A Board occupational safety officer investigated the workplace fatality and issued an inspection report dated February 21, 2011.

In that report, the officer found West Fraser Mills in violation of ss. 26.2(1), 26.21(1), and 26.22.1(1) of the Occupational Health and Safety Regulation , B.C. Reg. 296/97 (“ Regulation ”). As a consequence of these violations, an administrative penalty was levied against West Fraser Mills on July 13, 2011. [ 4 ] West Fraser Mills requested a review of the February 21, 2011, violation and July 13, 2011 penalty orders.

On April 16, 2012, the Board confirmed the administrative penalty but varied the violation order, finding that West Fraser Mills had contravened s. 26.2(1), but not ss. 26.21(1) and 26.22.1(1) of the Regulation (the “Review Decision”). [ 5 ] On August 28, 2012, West Fraser Mills appealed the Review Decision to the WCAT, taking the position that the Board did not have the authority to pass s. 26.2(1) of the Regulation . Specifically, West Fraser Mills argued that the Board could not, by regulation, impose duties on an owner independent from the duties prescribed under s. 119 of the WCA .

Alternatively, West Fraser Mills argued it

had not violated the regulation. [6] West Fraser Mills also made the submission that s. 196(1) of the WCA, the administrative penalty provision, did not applybecause West Fraser Mills was only the owner of the forest license and not the actual employer of the faller. [7] On July 9, 2013, the WCAT upheld the Board’s determination that West Fraser Mills had violated s. 26.2(1) of the Regulation:WCAT-2013-01952. At para. 78 of its decision, the WCAT determined as follows: 78.

Section 26.2(3) specifically requires that the owner of the forestry operation must in its planning of the activities identify workactivities or conditions at the workplace where there is a reasonably foreseeable risk to workers. There is insufficient evidence that theappellant discharged its obligation to plan for the work to be performed at the second work location. I confirm the appellant was inviolation of

section 26.2(1) of the Regulation. [8] The WCAT also concluded, in response to West Fraser Mills’ jurisdictional argument respecting s. 26.2(1) of the Regulation,that the Board had not exceeded its statutory authority in passing this provision. [9] In addition, the WCAT found that it was appropriate for the Board to have imposed an administrative penalty. While theamount of the penalty was reduced, the WCAT rejected the argument that s. 196(1) of the WCA did not apply to West Fraser Mills as anowner.

The WCAT, at para. 98, concluded as follows: 98. [W]hen an owner is also an employer within the meaning of “employer” in the Act, and the worksite in question is a workplacefor the owner/employer’s workers, I find the Board has the authority to impose an administrative penalty against the owner/employer,even when the underlying violation is one related to the obligations of an owner. [10] West Fraser Mills now brings this petition for judicial review of the WCAT decision and seeks “a Declaration that the decision… be quashed.” Positions of the Parties [11] The grounds for this petition are twofold: first, West Fraser Mills submits the Board exceeded its statutory authority in passings. 26.2(1) of the Regulation; second, it submits that s. 196(1) of the WCA does not apply to West Fraser Mills as an owner. [12] With respect to the first ground, the petitioner originally challenged the WCAT’s finding that the Board had the statutoryauthority to pass s. 26.2(1) of the Regulation as incorrect, or alternatively, patently unreasonable.

In the event s. 26.2(1) of theRegulation was found valid, the petitioner also challenged the application of this regulation as patently unreasonable.

The petitioner nowproceeds solely on the basis of the vires of s. 26.2(1) of the Regulation and has abandoned its substantive challenge to the decisionupholding the violation order. [13] The WCAT, for its part, submits that if s. 26.2(1) of the Regulation is found invalid, the findings on the violation order andadministrative penalty should be set aside and remitted for a new decision, even though, for all practical purposes, it acknowledges therewould be no further hearing if the petitioner is successful. [14] Notably, the WCAT also submits that it lacked jurisdiction to consider the vires of the Regulation in the original appealdecision.

The parties are in agreement that the WCAT has no standing in this judicial review to speak to the vires of s. 26.2(1) of theRegulation. The WCAT has accordingly made no submissions on this issue. Instead, the Board was added as a party and has taken up thetask, focussing its submissions exclusively on the vires question. [15] To this end, West Fraser Mills challenges the extent of the Board’s role in this litigation.

While the petitioner does not object tothe Board appearing and arguing the vires question, it submits that the Board may not rely on an affidavit of Gerald Massing, a lawyeremployed by the Board, as evidence in support of the Board’s position that the regulation is intra vires. Attached to that affidavit areexhibits, adduced to explain, among other things, the reasons behind the passage of s. 26.2(1) of the Regulation.

The petitioner submitsthat a tribunal is not permitted to supplement reasons for its decision by filing affidavit evidence, and takes the view that this material,filed and relied upon by the Board, is inadmissible. The petitioner also submits that the arguments of the Board relying on thesematerials should be struck for transgressing tribunal impartiality. [16] In my view, the petitioner’s submission appears to conflate the decisions of the Board and the WCAT with the separate questionof whether s. 26.2(1) of the Regulation is ultra vires.

It is the position of the petitioner that the Board is limited to the “matters addressedin the decision of the Review Division” in litigating the vires question. However, the substantive decision of the Review Division is notunder review, and even if it were, it is not clear how an

interpretation of s. 26.2(1) from the Review Decision would be relevant to thevires question. The intention of the Legislature in delineating the scope of authority to pass regulations is not derived from anadministrative decision but from the

interpretation of the enabling statute. Indeed, as the petitioner points out, “the regulation is eitherauthorized or it is not” according to this

interpretation. [17] The petitioner’s position that the Board’s affidavit material “goes to the heart of the merits” of the matter is similarly unclear,given the nature of the matter is the vires of the regulation and not an adjudicative decision of the Board. There is no “decision” toreview on the merits in determining whether s. 26.2(1) is ultra vires: Canadian Council for Refugees v. Canada, 2008 FCA 229, atparas. 51-63.

Rather, as defined under s. 1 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, at issue is not the exercise of astatutory power of decision, but a statutory power, namely, whether the impugned regulation is intra vires the enabling statute underwhich it was promulgated by the Board. [18] The petitioner cites Henthorne v. British Columbia Ferry Services Inc., 2011 BCCA 476, and Northwestern Utilities Ltd. v.Edmonton (City), (SCC), [1979] 1 S.C.R. 684, in support of its position that the Board’s reliance on the affidavit ofMr.

Massing violates the prohibition on a tribunal addressing the merits of a decision under review. The Board, in reply, submits thatthese cases do not involve challenges to an administrative agency acting in a legislative capacity and are inapplicable to the particular

circumstances of this case. The Board also submits that 18320 Holdings Inc. (c.o.b. Automotive Training Centres) v. Thibeau , 2014 BCCA 494 , a recent decision of our Court of Appeal on tribunal standing, is instructive. According to the court in that case, at stake on the question of tribunal standing are two fundamental values. The first is the need to maintain tribunal impartiality. The second is the need for fully informed adjudication before a reviewing court.

The court identified several factors as relevant to the question of whether a tribunal has standing to argue the merits of a decision under review: 52. The need to maintain tribunal impartiality will generally be more important, and it will be less likely to be appropriate for a tribunal to argue the merits, if:

a) the tribunal is strictly adjudicative in function, rather than also inquisitorial or investigative ( Leon’s Furniture at paras. 20-21);

b) the matter will be referred back to the tribunal for reconsideration if the petitioner is successful; or,

c) the tribunal seeks to make arguments on review which are not grounded in, or which are inconsistent with, the published reasons for its decision ( Children’s Lawyer at para. 42); 53. On the other hand, the need to facilitate fully informed adjudication will generally be more important, and it will be more likely to be appropriate for a tribunal to argue the merits, if:

a) there is no other respondent able and willing to defend the merits ( Pacific International Securities at para. 41);

b) there is a challenge to the legality of procedural policies or guidelines that have been formally adopted by the tribunal;

c) a detailed analysis of matters within the specialized expertise of the tribunal is necessary and the court is unlikely to be able to comprehend or analyze those matters without the assistance of counsel for the tribunal. [ 19 ] As I have noted, the issue here is not the decision of the Board to promulgate the impugned regulation, with reasons for the decision for the court to review. Instead, at issue is the standalone question of whether s. 26.2(1) of the Regulation is ultra vires . In this regard, the Board, which has the authority to make regulations, is not strictly adjudicative in function.

The Board’s role in this petition is exclusively concerned with its function in making regulations and the vires of s. 26.2(1) of the Regulation . Having regard to the totality of the circumstances, I am satisfied that the Board, as the only respondent to the jurisdictional question, has standing to defend the validity of s. 26.2(1) of the Regulation . [ 20 ] I am also satisfied Mr. Massing’s affidavit is admissible and does not transgress the principle of tribunal impartiality in these circumstances. Determining whether subordinate legislation is vires raises questions of statutory

interpretation. The modern approach to statutory

interpretation generally contemplates the consideration of extrinsic evidence: Castillo v. Castillo , 2005 SCC 83 at para. 23 . I agree with the petitioner that background reports and consultative processes from the affidavit of Mr. Massing are not “coextensive” with the Legislature’s intention, and that it would be improper to construe the language of the WCA with the aid of this evidence. At the same time, I note that the language of both the enabling statute and the impugned regulation must be interpreted in deciding the vires question.

Portions of the affidavit may provide context to the circumstances leading up to the passage of s. 26.2(1) of the Regulation , and may therefore be of some assistance in characterizing the impugned regulation. Although the evidence may ultimately be of limited weight, I am unable to conclude Mr. Massing’s affidavit is inadmissible for the narrow purpose of interpreting s. 26.2(1) of the Regulation . [ 21 ] The petitioner also contests the role of the WCAT in these proceedings. Again, the petitioner does not take issue with the standing of the WCAT but challenges the scope of its participation.

The petitioner does not object to the WCAT making submissions on the appropriate standard of review. Objection is taken, however, to the submissions of the WCAT, which, in the petitioner’s submission, simply emphasize the reasonableness of the decision. The petitioner submits that this is “partisanship in its clearest form.” [ 22 ] Having regard to the Thibeau factors referenced above, I note that the WCAT, unlike the Board, is strictly adjudicative in function, and the matter, if successful, would be referred back to the WCAT for reconsideration.

On the other hand, the WCAT is the only respondent defending the administrative penalty decision, and the need for fully informed adjudication weighs in favour of allowing the WCAT’s submissions on this substantive issue. The court retains discretion on this point. While I am alive to the concerns of the petitioner, and agree that transgressions of the fundamental principle of impartiality should not be endorsed, I do not view the WCAT’s submissions as rising to a level of partiality that outweighs the assistance provided by the WCAT in litigating this judicial review.

Issues [ 23 ] Even though the petition limits the relief sought to quashing the WCAT decision, and West Fraser Mills has not pleaded for a declaration that s. 26.2(1) of the Regulation be found invalid, the parties appear content to proceed on the vires question, and agree that if the impugned regulation is ultra vires , then the decision of the WCAT cannot stand. The petitioner gave notice pursuant to s. 8(4) of the Constitutional Question Act , R.S.B.C. 1996, c. 68, that it intended to argue that s. 26.2(1) of the Regulation is invalid.

The Attorney General of British Columbia, having received such notice, responded by letter, stating that it did not intend to file a petition response or appear on the basis that its submissions would be duplicative of the submissions set out in the petition response of the Board. [ 24 ] Accordingly, given the parties’ respective positions, the two principal issues that must be determined in this petition are as follows: 1. Whether s. 26.2(1) of the Regulation is ultra vires ; and 2.

Whether the decision of the WCAT to uphold the administrative penalty imposed on the petitioner was incorrect or patently unreasonable. The Vires of the Regulation

Standard of review and legal test [25] The petitioner submits that the standard of review to be applied to the vires issue is correctness, in accordance with s. 58(2)(c)of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (“ATA”). The petitioner submits that this jurisdictional question concerning s.26.2(1) of the Regulation is constitutional in nature which results in the application of s. 58(2)(

c) of the ATA.

Section 58 of the ATAprovides: 58.

(1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be anexpert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection (1) (

a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it hasexclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable, (

b) questions about the application of common law rules of natural justice and procedural fairness must be decidedhaving regard to whether, in all of the circumstances, the tribunal acted fairly, and (

c) for all matters other than those identified in paragraphs (

a) and (b), the standard of review to be applied to thetribunal's decision is correctness. [26] As a result, the jurisdictional question would appear to fall under s. 58(c), attracting a standard of review of correctness. In thisregard, the petitioner submits that when determining whether the impugned regulation is ultra vires, the standard of review must be oneof correctness. I agree. The question of the vires of subordinate legislation will always be reviewed on a standard of correctness:Canadian Council for Refugees, at para. 57; United Taxi Drivers' Fellowship of Southern Alberta v.

Calgary (City), 2004 SCC 19 atpara. 5. [27] Furthermore, where the Legislature delegates to an administrative tribunal the authority to pass regulations, those regulationsmust not be inconsistent with the objective of the enabling statute or the scope of the tribunal’s statutory mandate: Katz Group CanadaInc. v. Ontario (Health and Long-Term Care), 2013 SCC 64. The parties are in agreement that this is the appropriate legal test to beapplied. [28] As the court noted in Canadian Council for Refugees, at para. 54, citing Jafari v.

Canada (Minister of Employment andImmigration), (FCA), [1995] 2 F.C. 595 at 602 (F.C.A.), “The essential question for the court always is: does thestatutory grant of authority permit this particular delegated legislation?” The following principles identified at paras. 25-28 in KatzGroup Canada are relevant to answering this question: 1. Regulations are presumed valid. The burden is on challengers to demonstrate invalidity, and, where possible, a regulationis construed harmoniously with its enabling statute to render it intra vires. 2. The modern approach to statutory

interpretation is to be applied to both the impugned regulation and the enabling statute.Both are to be construed in a broad and purposive manner. 3. The policy and practical merits of the subordinate legislation are not to be considered in the assessment of vires. It islikewise inappropriate to consider political, economic, social or partisan factors. 4. Regulations must be “irrelevant”, “extraneous” or “completely unrelated” to the statutory purpose to be found ultra vireson the basis of inconsistency with statutory purpose, and regulations will only be struck down on this basis in “an egregious case.” [29] With respect to the

interpretation of statutes, the Legislature has provided direction under s. 8 of the

Interpretation Act, R.S.B.C.1996, c. 238, which states: 8. Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction andinterpretation as best ensures the attainment of its objects. [30] Similarly, at common law, the modern contextual approach to statutory

interpretation is captured in the following axiom,routinely cited and applied by the courts: “[T]he words of

an Act are to be read in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: see Merk v.International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70 at para. 18. It isthrough this contextual approach that the impugned regulation and enabling statute are to be read in determining the vires question.

Discussion [31] On this first issue, the thrust of the petitioner’s argument is that the WCA does not permit the Board to impose, by regulation,duties on an owner “independent” from those set out in s. 119 of the WCA.

The petitioner submits that s. 119 of the WCA prescribes “all”of the duties of owners, and that s. 26.2(1) of the Regulation impermissibly imposes further duties. [32] In response, the Board submits that the WCA authorizes the Board to make regulations that impose duties independent from thegeneral duties of owners under s. 119, provided these regulatory obligations do not conflict with the general duties under s. 119 and areotherwise authorized by the Board’s empowering provisions to make regulations.

The Board further submits that, in any event, thespecific duties imposed under s. 26.2(1) of the Regulation fall squarely within the general duties under s. 119 of the WCA. [33] Based on these submissions, two issues arise: first, it must be determined whether s. 26.2(1) of the Regulation actually imposesobligations “independent” or outside of those set out in s. 119 of the WCA, an assumption upon which the petitioner’s argument rests. If

so, it must be determined whether the WCA authorizes the making of such independent obligations, or whether, as the petitioner submits, the obligations under s. 26.2(1) of the Regulation must be “specifically grounded” in the general duties of s. 119 of the WCA to be vires . The overarching question remains whether the impugned regulation is properly authorized by its enabling legislation. The Board’s power to make regulations [ 34 ] Division 17 of

Part 3 of the WCA expressly confers, on both the Lieutenant Governor in Council and the Board, the power to make regulations under ss. 224 and 225 respectively. Section 225(1) provides: 225.

(1) In accordance with its mandate under this Part, the Board may make regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment. [ 35 ] As the language of s. 225(1) provides, regulations must be passed “in accordance” with the Board’s mandate under

Part 3 of the WCA , which specifically concerns the occupational health and safety of workers. The Board’s mandate in

Part 3 is expressly set out in s. 111: 111.

(1) In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work. [ 36 ] Section 111(2)(

a) contemplates the making of regulations to carry out the Board’s mandate: 111.

(2) In carrying out its mandate, the Board has the following functions, duties and powers: (

a) to exercise its authority to make regulations to establish standards and requirements for the protection of the health and safety of workers and the occupational environment in which they work … [ 37 ] As provided in s. 111(1), the Board’s mandate is prescribed in accordance with the purposes of

Part 3. The purposes of

Part 3 are set out in s. 107 of the WCA : 107.

(1) The purpose of this

Part is to benefit all citizens of British Columbia by promoting occupational health and safety and protecting workers and other persons present at workplaces from work related risks to their health and safety. [ 38 ] The WCA is benefits-conferring legislation, and

Part 3 in particular has as its purpose the promotion and protection of occupational health and safety. Regulations passed by the Board under

Part 3 must be in accord with this purpose. Moreover, without limiting the general purpose set out in s. 107(1), s. 107(2) identifies the specific purposes of

Part 3 as follows: 107. (2) (

a) to promote a culture of commitment on the part of employers and workers to a high standard of occupational health and safety, (

b) to prevent work related accidents, injuries and illnesses, (

c) to encourage the education of employers, workers and others regarding occupational health and safety, (

d) to ensure an occupational environment that provides for the health and safety of workers and others, (

e) to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party's authority and ability to do so, (

f) to foster cooperative and consultative relationships between employers, workers and others regarding occupational health and safety, and to promote worker participation in occupational health and safety programs and occupational health and safety processes, and (

g) to minimize the social and economic costs of work related accidents, injuries and illnesses, in order to enhance the quality of life for British Columbians and the competitiveness of British Columbia in the Canadian and world economies. [ 39 ] The Board’s statutory mandate therefore contemplates the making of regulations concerning occupational health and safety and the maintenance of reasonable standards for the protection of the health and safety of workers and their occupational environment.

The language of s. 225(1), which authorizes the Board to make regulations that “it considers necessary or advisable,” provides some indication that the Legislature intended to confer discretion on the Board in determining what regulations are required to fulfill this mandate and advance the purposes of the WCA . [ 40 ] Specific categories of regulations are identified in s. 225(2) which, without limiting the generality of s. 225(1), provides: 225. (2) [T]he Board may make regulations as follows: (

a) respecting standards and requirements for the protection of the health and safety of workers and other persons present at a workplace and for the well-being of workers in their occupational environment; (

b) respecting specific components of the general duties of employers, workers, suppliers, supervisors, prime contractors and owners under this Part; … (

i) respecting any other matter for which regulations, other than regulations of the Lieutenant Governor in Council,

are contemplated by this Act. The Board says these provisions provide the necessary restraint in promulgating regulations, as a regulation must not be inconsistent with or contrary to these provisions in order to be intra vires. [ 41 ] Section 230(2) of the WCA further elaborates on the authority and applicability of regulations made under

Part 3: 230.

(2) Regulations under this Part may do one or more of the following: (

a) be made applicable to employers, workers, suppliers and any other persons working in or contributing to the production of an industry; (

b) be different for different workplaces, industries, activities, persons, things or categories of any of these; (

c) delegate a matter to, or confer a discretion on, the Board, an officer or another person. The language of s. 230(2) indicates the Legislature intended to permit the making of regulations that apply broadly or differentially. Regulations are also permitted to delegate or confer discretion. The impugned regulation [ 42 ]

Part 26 of the Regulation is a comprehensive regime regulating occupational health and safety in the forestry industry.

Section 26.2(1) of the Regulation , the impugned provision in this litigation, provides: 26.2.

(1) The owner of a forestry operation must ensure that all activities of the forestry operation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to the Board. The plain language of s. 26.2(1) of the Regulation indicates that it applies in the differential manner described under s. 230(2) (

b) of the WCA . It is limited in application to a specific industry, forestry, and limited further to specific entities contributing to that industry, owners of a forestry operation. [ 43 ] A "forestry operation," which is referenced in s. 26.2(1), is expressly defined as a “workplace” in s. 26.1: 26.1. “ forestry operation ” means a workplace where work is done in relation to silviculture or harvesting trees, including constructing the means of access and transporting the harvested trees to a facility where they are processed or from which they are exported. [ 44 ]

Section 26.2(1) requires an owner to plan and conduct “all activities” of its forestry operation “in a manner consistent” with the Regulation , as well as “with safe work practices acceptable to the Board.” The latter requirement, by implication, delegates broad authority to the Board with respect to the identification of safe work practices in a forestry operation. [ 45 ] The petitioner, however, submits that the WCA expressly differentiates the general duties of owners, employers, and other entities common to a workplace, and the health and safety of “workers” is the obligation of an employer. The petitioner submits that the purpose of

Part 3 of the WCA , as set out in s. 107(1) , is intended to protect workers in “contracts of service,” and that, absent clear statutory language to the contrary, an employer’s duties and obligations extend only to its own employees. The petitioner cites British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia , 2014 BCCA 353 at para. 46 (“ BC Hydro ”), and submits that this Court of Appeal decision is “dispositive” of the matter. [ 46 ] The issue in BC Hydro concerned the reporting obligations imposed on employers under ss. 172-176 in Division 10 of

Part 3 of the WCA . The Board found BC Hydro in violation of s. 172(1)(

a) for failing to report an accident, despite the fact that BC Hydro was not the employer of the injured worker but rather simply the owner of the worksite. In finding this decision unreasonable, the court stated the following at para. 47:

Section 119 sets out the general duties of owners. These do not include a duty to report an accident. Yet, as the chambers judge observed, the Review Officer relied primarily on incidents of ownership to find that BC Hydro had a “significant connection” to the worksite and incident and thus had an obligation to report the accident to the Board under s. 172(1)(a). [ 47 ] Respectfully, I am unable to agree that BC Hydro is dispositive of the case at bar. The court there was not confronted with a challenge to the vires of subordinate legislation but with a decision of the Board interpreting its home statute. The case dealt solely with s. 172(1)(

a) of the WCA and whether the Board’s

interpretation of that provision was reasonable in the context and scheme of the legislation. [ 48 ] While the petitioner notes that the WCA specifically distinguishes between the duties of employers and owners, there is no suggestion that the duties imposed under the impugned regulation are properly the duties of an employer under s. 115 rather than an owner under s. 119 .

Instead, the petitioner makes the general contention that s. 26.2(1) of the Regulation creates new duties for owners, and thereby overrides the “clear intentions” expressed by the Legislature in differentiating the different duties imposed on employers, workers, owners, and others under ss. 115 to 121 of the WCA . [ 49 ] As a preliminary observation, I note that there is nothing in the language of s. 119 to indicate that the duties set out in s. 119 (

a) to (

c) provide a complete code of an owner’s duties or are otherwise exhaustively defined.

Section 119 of the Act prescribes three general duties of owners: 119. Every owner of a workplace must (

a) provide and maintain the owner's land and premises that are being used as a workplace in a manner that ensures the health and safety of persons at or near the workplace,

(

b) give to the employer or prime contractor at the workplace the information known to the owner that is necessary to identify and eliminate or control hazards to the health or safety of persons at the workplace, and (

c) comply with this Part, the regulations and any applicable orders. Notably, the language of s. 119(

c) provides a general duty of compliance. The term “regulation” is defined in s. 106 of the WCA as meaning “a regulation under this Part made by the Board or by the Lieutenant Governor in Council.”

Section 119(c), when read together with s. 106 , applies to regulations made by the Board and imposes a duty on an owner to comply with those regulations.

Section 122 of the WCA , like s. 225(2) (b), contemplates the imposition of specific obligations by means of regulation. It provides: 122. A specific obligation imposed by this Part or the regulations does not limit the generality of any other obligation imposed by this Part or the regulations. [ 50 ] Moreover, as already noted, ss. 111(2)(

a) and 225(1)(

a) authorize the Board, in carrying out its mandate, to make regulations to establish “standards and requirements for the protection of the health and safety” of workers and their workplace. Section 225(1)(

b) specifically authorizes the Board to make regulations “respecting specific components of the general duties … of owners under this Part.”

Section 106 of the WCA defines an “owner” to include “a licensee or occupier of any lands or premises used or to be used as a workplace.” That

section then defines a “workplace” as “any place where a worker is or is likely to be engaged in any work,” and the Regulation , as noted, defines a “forestry operation” as a workplace. [ 51 ] In my view, the provisions of this Part, when read together in their schematic context, do not support the petitioner’s contention that the Legislature intended to limit the duties of owners under s. 119 of the WCA to preclude the duties imposed by s. 26.2(1) of the Regulation . On the contrary, these provisions authorize the duties outlined under s. 26.2(1).

When these provisions are read collectively, it follows that an owner has a duty to comply with obligations imposed by regulation made by the Board. As a result, I find that such regulations, and the obligations they impose, are intra vires provided they are not otherwise inconsistent with the purposes of the WCA or the Board’s statutory mandate. [ 52 ] Both s. 26.2(1) of the Regulation and s. 119 of the WCA impose duties on an owner respecting its land being used as a workplace.

Section 119(

a) imposes a duty in the provision and maintenance of an owner’s land and premises.

Section 119(

b) imposes an informational duty, consistent with the planning duty under s. 26.2(1) of the Regulation , which concerns hazards to the health and safety of persons at a workplace.

Section 26.2(3) of the Regulation elaborates on the planning required under the section: 26.2.

(3) The planning required under this

section must (

a) include identification of any work activities or conditions at the workplace where there is a known or reasonably foreseeable risk to workers, (

b) be completed before work commences on the relevant activity, and (

c) be documented at the time of planning. [ 53 ] While s. 26.2(1) of the Regulation does not expressly reference the duties under s. 119 of the WCA , this does not in itself lead to the conclusion that s. 26.2(1) is not “specifically grounded” in s. 119 . As a result, I am unable to agree with the petitioner that the obligations set out in s. 26.2(1) of the Regulation are sufficiently “independent” from the general duties set out in s. 119 of the WCA such that the impugned regulation is ultra vires .

In my view, duties respecting the planning and conducting of a forestry operation are neither inconsistent with nor even necessarily independent from the general duties of owners under s. 119. [ 54 ] Even if the duties imposed by the impugned regulation fall outside the general duties of s. 119(

a) and (b), I would conclude that the WCA authorizes such duties in any event. As the Board points out, s. 119 (

c) contemplates duties prescribed by regulation beyond those set out in s. 119 (

a) and (b). Provided such regulatory duties are not inconsistent with the purpose of the WCA or the Board’s statutory mandate, and I would add, provided those duties are not inconsistent with the general duties of s. 119, an owner must comply with them. [ 55 ] I am unable to agree with the petitioner that the health and safety of workers is exclusively the obligation of an employer. While the duties between employers and owners may differ, the WCA clearly contemplates that both bear responsibility for occupational health and safety.

Given the language of the impugned regulation and the WCA , I am satisfied that s. 26.2(1) of the Regulation may be construed harmoniously with the WCA , and s. 119 in particular, in a manner which renders the subordinate legislation intra vires . [ 56 ] The petitioner has the burden to establish the invalidity of the impugned regulation.

While I agree with the general statement of the petitioner that the Board may not pass any regulation it chooses, regardless of the intent of the Legislature, the petitioner has failed to demonstrate that the impugned regulation is contrary to legislative intention or is otherwise inconsistent with the purposes of the WCA . Rather, I agree with the Board that the petitioner’s position is simply unsupported by the language of the impugned regulation and its enabling legislation.

As argued by the Board, accepting the position of the petitioner would indeed render the Board’s regulation-making power under s. 225 superfluous. [ 57 ] In the result, the petitioner has failed to establish that s. 26.2(1) of the Regulation is invalid. The application to have the decision of the WCAT quashed on the basis that the regulation at issue is ultra vires is dismissed. Administrative Penalty Standard of review [ 58 ] I now turn to the issue of the administrative penalty. The petitioner’s position on this point is relatively straightforward.

It submits that only the actual employer of the deceased worker can be penalized under s. 196(1) .

[59] On this question, the parties disagree over the standard of review to be applied. The petitioner submits that the application of theadministrative penalty provision against it as an owner engages a true question of jurisdiction or vires reviewable on a standard ofcorrectness. Conversely, the WCAT submits that the appropriate standard of review is patent unreasonableness pursuant to s. 58(2)(

a) ofthe ATA. [60] In Lavender Co-Operative Housing Association v.

Ford, 2011 BCCA 114 at para. 43, the court remarked that determining theappropriate standard of review under the ATA is a simple three step inquiry: 43. 1. determine which legislative provisions, if any, apply; 2. if s. 58 or 59 of the ATA apply, determine which type of question is at issue; and 3. apply the mandated standard of review. [61] Firstly, s. 254 of the WCA provides the WCAT with exclusive jurisdiction to review appeals from Board decisions, and s. 255requires that all decisions of the WCAT are final and not subject to review by a court.

By virtue of the privative nature of ss. 254 and 255of the WCA, s. 58 of the ATA applies and the court is to consider the WCAT an expert tribunal over all matters in which it has exclusivejurisdiction. [62] Secondly, the question at issue concerns the

interpretation of s. 196(1) of the WCA and its application to the petitioner. In myview, this question invokes issues of statutory

interpretation. I agree with the WCAT that

interpretations of its home statute are questionsof law and s. 58(2)(

a) of the ATA applies accordingly. As a result, the

interpretation of s. 196(1) by the WCAT must not be interferedwith unless it is patently unreasonable. [63] This conclusion is supported by the approach to standard of review at common law. In McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67 at paras. 21-22, the court summarized the prevailing approach to standard of review: [21] Since Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, this Court has repeatedly underscored that "[d]eferencewill usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will haveparticular familiarity" (para. 54). Recently, in an attempt to further simplify matters, this Court held that an administrative decisionmaker's

interpretation of its home or closely-connected statutes "should be presumed to be a question of statutory

interpretation subject todeference on judicial review" (Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011]3 S.C.R. 654, at para. 34). [22] The presumption endorsed in Alberta Teachers, however, is not carved in stone. First, this Court has long recognized that certaincategories of questions -- even when they involve the

interpretation of a home statute -- warrant review on a correctness standard(Dunsmuir, at paras. 58-61). Second, we have also said that a contextual analysis may "rebut the presumption of reasonableness reviewfor questions involving the

interpretation of the home statute" (Rogers Communications Inc. v. Society of Composers, Authors and MusicPublishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 16). [64] The petitioner acknowledges that true questions of jurisdiction are narrow and exceptional: Alberta (Information and PrivacyCommissioner) v. Alberta Teachers' Association, 2011 SCC 61 at para. 39. In addition, the courts must be cautious not to “brand asjurisdictional, and therefore subject to broader curial review, that which may be doubtfully so": Canadian Union of Public Employees,Local 963 v.

New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 at 233, cited in Dunsmuir, at para. 35. AsRothstein J. cautioned in Alberta (Information and Privacy Commissioner), any administrative decision that involves the

interpretation ofthe decision-maker’s home statute “involves the determination of whether [the decision-maker] has the authority or jurisdiction to dowhat is being challenged on judicial review” (para. 34). [65] In Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 59, the court said this about true jurisdictional questions: 59. “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.

In other words,true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority todecide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or toconstitute a wrongful decline of jurisdiction. [66] With these principles guiding my determination in the present case, I am unable to agree with the petitioner that the impositionof an administrative penalty against it as an owner engages a true question of jurisdiction or vires, reviewable on a standard ofcorrectness.

Given the presence of a privative clause, the nature of the question concerning the

interpretation of the tribunal’s homestatute, and having regard to the purpose of the WCAT and its expertise with the very question at issue, I am satisfied the appropriatestandard of review is patent unreasonableness pursuant to s. 58(2)(

a) of the ATA. The WCAT decision [67] When the penalty was imposed by the Board, s. 196(1) of the WCA provided as follows:

(1) The Board may, by order, impose an administrative penalty on an employer under this

section if it considers that: (

a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses, (

b) the employer has not complied with this Part, the regulations or an applicable order, or (

c) the employer's workplace or working conditions are not safe. [68] The reasons of the WCAT with respect to the

interpretation of s. 196(1), and whether this provision applies to the petitioner, are

set out in paras. 79-97 of its decision. The WCAT first considered the arguments of the petitioner on this issue at paras. 79-80: [79] The appellant argues that section 196(1) of the Act does not apply to the appellant as an owner of a forestry operation, noting that the ability of the Board to impose an administrative penalty is on an employer .

The express use of the defined term “employer” cannot be construed as providing the Board with the authority to impose an administrative penalty on an owner. [80] The appellant challenges the findings of WCAT panel in WCAT-2006-01337 , a WCAT noteworthy decision relied upon by the review officer in reaching her decision that the Board had the jurisdiction to impose an administrative penalty on the appellant as an owner. The appellant submits that the panel’s conclusion that the defined term “employer” necessarily includes the defined term “owner” is inconsistent with

section 12 of the

Interpretation Act . “Owner” is not part of the conventional meaning of “employer”, and the fact that the definition of employer in

section 1 of the Act is not exhaustive does not mean that a separately defined term in the Act can also fall within the scope of “employer.” The appellant further submits that penalty orders under

section 196 of the Act are only available to those who assume the function of employer with regard to that workplace. [Emphasis in original.] [ 69 ] The WCAT began its

interpretation of s. 196(1) of the WCA by considering the definition of “employer” under the WCA . That term is defined in s. 106 of

Part 3 as follows: 106. In this Part and in the regulations under this Part: … “employer” means (

a) an employer as defined in

section 1, (

b) a person who is deemed to be an employer under

Part 1 or the regulations under that Part, and (

c) the owner and the master of a fishing vessel for which there is crew to whom

Part 1 applies as if the crew were workers, but does not include a person exempted from the application of this Part by order of the Board. [ 70 ] The WCAT also considered the definition of employer, defined in s. 1 of the WCA as follows: 1.

In this Act: … “employer” includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry. [ 71 ] The WCAT, at para. 83, noted that there is no dispute that the petitioner was the owner of the forest license at the time of the accident and an employer within the meaning of the WCA .

The WCAT identified the issue as whether West Fraser Mills can be subject to an administrative penalty under s. 196(1) of the WCA in its role as an owner of the forest license, rather than in its role as an employer. [ 72 ] The WCAT turned to two previous WCAT decisions that considered whether an owner can be deemed an employer for the purposes of s. 196(1) . The WCAT disagreed with the first decision on this issue, which determined that the term “employer” necessarily includes an owner by virtue of s. 108(1) of the WCA .

The second decision cited by the WCAT, WCAT-2009-01363 , appears to have been more persuasive, and the WCAT considered that panel’s

interpretation of s. 196(1) extensively in its reasons.

That panel interpreted s. 196(1) as not limited to situations where the breach by the employer concerned the safety of its own workers, concluding that the Board had the authority to impose an administrative penalty on an employer even though the penalty was issued in relation to the employer’s breach of its duties as an owner. [ 73 ] The WCAT agreed with the panel in WCAT-2009-01363 and found that an administrative penalty may be imposed on the petitioner, notwithstanding that the penalty was issued for a breach where it was acting in the capacity of an owner: [94] In the present appeal, I am unable to agree with the appellant that an administrative penalty can only be imposed on an employer under s. 196(1) of the Act when the employer assumed the function of an employer with regard to its own workers at its workplace.

Such a finding would be contrary to the use and application of the word employer in

Part 3 of the Act. Indeed, the Court of Appeal in Petro- Canada found that the definition of employer in

Part 3 of the Act is broad and does not result in redundancy were it to include owners as employers, or entities that have dual obligations under the Act. This is recognized in

section 123 of the Act, which provides that persons may be subject to obligations in relation to more than one role. Subsection (2) provides that if a person has two or more functions under

Part 3 of the Act in respect of one workplace, the person must meet the obligations of each function. [ 74 ] The Court of Appeal decision referenced by the WCAT is Petro-Canada v. British Columbia (Workers’ Compensation Board) , 2009 BCCA 396 , which the WCAT reviewed at paras. 92-93 of its reasons. The WCAT also noted, at para. 91, that a worker employed by West Fraser Mills attended at the worksite where the contractor and faller were performing the work, and found that the area of the forest license was therefore a workplace for the petitioner’s workers.

The WCAT considered the petitioner’s degree of knowledge and control over the workplace as relevant to the petitioner’s obligations as both an employer and an owner to workers on that workplace. [95] In the facts of this case the appellant is both an owner and an employer as defined by the Act. As set out above, I have found that the appellant as an owner of the forest license had sufficient degree of knowledge and control over the workplace to be able to ensure the health and safety of workers at the worksite locations.

The appellant’s obligation in that regard is not limited to the health and safety of its own workers. As both an employer and as an owner, the appellant’s duty extends to ensure the health and safety of all workers and to

take sufficient precautions for the prevention of work related injuries. [ 75 ] Turning specifically to the petitioner’s obligation as an owner, the WCAT confirmed that the petitioner was in breach of its obligation under s. 26.2(1) of the Regulation . The Board concluded that this breach provided the basis for finding that the petitioner had “failed to take sufficient precautions for the prevention of work related injuries” pursuant to s. 196(1) (

a) of the WCA : [96] The appellant as an owner had an obligation to ensure the activities of the forestry operation were planned and conducted in a manner consistent with the Regulation and with safe work practices acceptable to the Board. I have found the appellant failed to meet this obligation. The appellant is an employer within the meaning of the Act. I agree with the panel in WCAT-2009 - 01363 that section 196(1) (

a) provides authority to impose an administrative penalty on an employer/owner. The violation by the appellant of

section 26.2(1) of the Regulation provides the basis for finding the appellant failed to take sufficient precautions for the prevention of work related injuries. This provides the basis for imposing an administrative penalty on an employer, as set out in section 196(1)(

a) of the Act. I find the Board had the authority to impose an administrative penalty against the appellant, the owner of the forest license, in the circumstances of these appeals where the owner was also an employer within the meaning of the Act and the worksite in question was a workplace for the appellant’s worker. [ 76 ] As a result, the WCAT concluded that the Board has the authority to impose an administrative penalty on an owner, provided the owner is also an employer under the WCA and the “worksite in question is a workplace for the owner/employer’s workers” (para. 98).

As the petitioner was found to be an employer and the area of the forest license was found to be a workplace, the WCAT concluded that the Board had the authority to impose an administrative penalty under s. 196(1) of the WCA for the violation of s. 26.2(1) of the Regulation . Discussion [ 77 ] As noted, the WCAT concluded that the petitioner, as an owner of a workplace in which it employs workers, was in breach of its obligation under s. 26.2(1) of the Regulation and thus liable to an administrative penalty under s. 196(1) .

In support of this conclusion, the WCAT relied on the definition of “employer” under the WCA and applied this definition to the petitioner. The WCAT interpreted the language of s. 26.2(1) of the Regulation and s. 196(1) of the WCA , and reasoned that a violation of s. 26.2(1) provided a basis to find that the petitioner “failed to take sufficient precautions for the prevention of work related injuries or illnesses” under s. 196(1) (a).

The WCAT was untroubled by the fact that the Board found the petitioner had failed to take sufficient precautions required of an owner, despite s. 196 referring only to an “employer”. [ 78 ] In support of its position on this review, the petitioner relies on BC Hydro for the proposition that the WCA expressly distinguishes between employers and owners, and delineates separate duties for each.

With respect, I do not view the administrative penalty scheme under s. 196 to be analogous to the accident reporting and investigation scheme at issue in BC Hydro , which prescribes “a sequential series of obligations on an employer to not only report a serious injury accident, but to investigate it, to prepare an incident investigation report in accord with a legislated protocol, and to take corrective measures” ( BC Hydro , at para. 50 ). [ 79 ] At the same time, the WCAT’s

interpretation in this case is not so straightforward as in Petro-Canada . Justice Groberman in that case confirmed that the language of s. 115 of the WCA , “which specifically fixes an employer with responsibilities for the safety of employees at a worksite who are not its own workers” (para. 44), applies to any employer within the meaning of the WCA where the employer’s work is carried on at the workplace. However, s. 196(1) does not contain the specificity of s. 115(1)(a)(ii), which clearly provides that an employer has obligations to other workers at its workplace.

Nor does s. 196(1) expressly provide that the Board may impose an administrative penalty where an employer breaches its obligations as an owner. Rather, as the

interpretation of the WCAT suggests, this result must be inferred from the general language of that provision. [ 80 ] As a result, whether the Legislature intended the administrative penalty scheme to apply to employers who violated their duties as owners is a question of statutory

interpretation. The petitioner submits that the

interpretation of the WCAT disregards the will of the Legislature, which only intended that penalties be imposed on the actual employer of a worker. The petitioner submits that the only reasonable

interpretation of s. 196(1) is that it applies only where an entity named in the WCA has assumed the function of an employer at a workplace, but not otherwise. In support, the petitioner cites McLean at para. 38 , where the Supreme Court of Canada said the following: [38] It will not always be the case that a particular provision permits multiple reasonable

interpretations. Where the ordinary tools of statutory

interpretation lead to a single reasonable

interpretation and the administrative decision maker adopts a different

interpretation, its

interpretation will necessarily be unreasonable — no degree of deference can justify its acceptance; see, e.g., Dunsmuir , at para. 75 ; Mowat , at para. 34. In those cases, the “range of reasonable outcomes” ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, at para. 4 ) will necessarily be limited to a single reasonable

interpretation — and the administrative decision maker must adopt it. [ 81 ] By implication, the

interpretation proposed by the petitioner is confined to imposing administrative penalties only where the underlying violation relates to an employer’s duties. The WCAT, in its decision, was of the view that this

interpretation was overly restrictive. In so finding, the WCAT relied on s. 123 of the WCA , which allows for one person to be subject to obligations in relation to more than one role, and the fact that the petitioner, as both an employer and an owner, was subject to the duties of each under the WCA . Moreover, the WCAT was satisfied that the petitioner had duties to ensure the health and safety of all workers on its forestry operation insofar as s. 26.2(1) of the Regulation required. [ 82 ] In my view, the

interpretation of the WCAT is an acceptable and rationally supportable outcome. Although the petitioner is correct to point out that s. 196(1) refers only to an employer, the provision does not expressly limit itself to an employer’s duties , as prescribed in s. 115 or otherwise. The language of the provision is more general. It refers to: (

a) precautions for the prevention of work related injuries; (

b) compliance with

Part 3 of the WCA , the regulations, or applicable orders; as well as (

c) safe workplaces and working conditions. The generality of these provisions cohere with the overall purpose and mandate of

Part 3 and its overarching concern with occupational health and safety. The WCAT was satisfied that the duties under s. 26.2(1) concerned “precautions for the prevention of

work related injuries” under s. 196(1), and that a breach of these duties could attract an administrative penalty. It found that a penalty wasappropriately imposed by the Board, given the petitioner’s status as both an employer and owner, as well as the petitioner’s degree ofknowledge and control over its forestry operation. [83] In applying the standard of review, I note the approach set out in Speckling v. British Columbia (Workers' CompensationBoard), 2005 BCCA 80 at para. 33, and recently confirmed in Vandale v. British Columbia (Workers' Compensation Appeal Tribunal),2013 BCCA 391 at para. 42: 42. 1.

The standard of review is that of patent unreasonableness: Canada (Attorney General) v. P.S.A.C. (1993), (SCC), 101 D.L.R. (4th) 673 (S.C.C.). 2. "Patently unreasonable" means openly, clearly, evidently unreasonable: Canada (Director of Investigation and Research)v. Southam Inc., (SCC), [1997] 1 S.C.R. 748. 3. The review test must be applied to the result not to the reasons leading to the result: Kovach v. British Columbia(Workers' Compensation Board) (2000), 2000 SCC 3 , 184 D.L.R. (4th) 415 (S.C.C.). 4.

The privative clause set out in s. 96(1) of the Act requires the highest level of curial deference: Canada Safeway v. B.C.(Workers' Compensation Board) (1998), (BC CA), 59 B.C.L.R. (3d) 317 (C.A.). 5. A decision may only be set aside where the board commits jurisdiction error. 6. A decision based on no evidence is patently unreasonable, but a decision based on insufficient evidence is not: DouglasAircraft Co. of Canada Ltd. v. McConnell, (SCC), [1980] 1 S.C.R. 245, and Board of Education for the City of Torontov.

Ontario Secondary School Teachers' Federation et al (1997), (SCC), 144 D.L.R. (4th) 385 (S.C.C.). [Emphasis added in Vandale.] [84] The court in Vandale also noted, at para. 41, that “a high degree of deference” is accorded to a tribunal on the standard of patentunreasonableness, and for a court to interfere, "the result must almost border on the absurd”: Voice Construction Ltd. v. Construction &General Workers' Union, Local 92, 2004 SCC 23 at para. 18. A patently unreasonable decision must be "so flawed that no amount ofcurial deference can justify letting it stand": Law Society of New Brunswick v.

Ryan, 2003 SCC 20 at para. 52. [85] It is not the role of this court to advance its own statutory

interpretation of s. 196(1) and arrive at an

interpretation that it regardsas correct. As the Court of Appeal cautioned in BC Hydro, it is the role of the administrative decision-maker to interpret its home statute,not a court on judicial review (para. 53). The question for a reviewing court is whether the

interpretation of the WCAT, and the decisionreached as a result of that

interpretation, is patently unreasonable. [86] In my view, a determination that an employer responsible for occupational health and safety may be subject to an administrativepenalty for failing, as an owner, to take sufficient precautions for the prevention of work-related injuries at its workplace, is not apatently unreasonable conclusion.

I am satisfied that the WCAT’s reasons, when considered as a whole, “are tenable as support” for thisconclusion: Law Society of New Brunswick, at para. 56. [87] Had the applicable standard of review been one of correctness, there may very well have been a different conclusion withrespect to the scope of s. 196(1). That, however, is not the standard of review on this issue.

The WCAT, with expertise and exclusivejurisdiction, decided that an administrative penalty was properly levied on the petitioner, an employer who had an obligation as an ownerto plan and conduct its workplace in a manner consistent with safe work practices. The WCAT found that the petitioner, in breaching thisobligation, failed to take sufficient precautions to prevent the tragic accident that befell the tree faller, and as a result decided that anadministrative penalty was appropriately imposed.

While there may have been another reasonable decision available, given the mandatedstandard of review, in my view the decision of the WCAT was not clearly irrational or outside the range of possible, acceptableoutcomes. [88] In the result, I am unable to conclude that the decision of the WCAT was patently unreasonable. Conclusion [89] The petition is dismissed. [90] The petitioner has been unsuccessful in this litigation but the respondents do not seek costs. The petitioner also sought costsagainst the Board for failing to adhere to the rules of tribunal impartiality, but was unsuccessful on this point as well.

There will be noorder for costs. “B.D. MacKenzie, J.” The Honourable Mr. Justice B.D. MacKenzie