2012 NBCA 82, 2012 NBCA 82

COURT OF APPEAL OF NEW BRUNSWICK 16-12-CA CHRISTOPHER LEBLANC APPELLANT CHRISTOPHER LEBLANC APPELANT - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL INTIMÉE LeBlanc v. Workplace Health, Safety and Compensation Commission, 2012 NBCA 82 LeBlanc c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2012 NBCA 82 CORAM: The Honourable Justice Richard The Honourable Justice Bell The Honourable Justice Quigg CORAM : L’honorable juge Richard L’honorable juge Bell L’honorable juge Quigg Appeal from a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission: June 16, 2011 Appel d’une décision du Tribunal d’appel de la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 16 juin 2011 History of Case: Historique de la cause : Decision under appeal: Decision Number – 20116033 June 16, 2011 Décision frappée d’appel : Numéro de la décision – 20116033 Le 16 juin 2011 Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: May 14, 2012 Appel entendu : Le 14 mai 2012

Judgment rendered: September 20, 2012 Jugement rendu : Le 20 septembre 2012 Reasons for judgment by: The Honourable Justice Quigg Motifs de jugement : L’honorable juge Quigg Concurred in by: The Honourable Justice Richard The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Richard L’honorable juge Bell Counsel at hearing: For the appellant: Alcide A. Léger For the respondent: Basile Chiasson, Q.C. Avocats à l'audience : Pour l’appelant : Alcide A. Léger Pour l’intimée : Basile Chiasson, c.r. THE COURT The appeal is allowed with costs of $2,500.

LA COUR L’appel est accueilli avec dépens de 2 500 $. English version of the judgment of the Court was delivered by QUIGG, J.A. I. Introduction [ 1 ] The issue on appeal is whether the appellant, Christopher LeBlanc, suffered an injury that arose out of and in the course of his employment. If so, he is entitled to compensation benefits under the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13. However, the Appeals Tribunal upheld the Commission’s determination that Mr.

LeBlanc was not acting in the course of his employment at the time of the accident, and thereby concluded the Commission’s decision to deny him benefits was justified. In my view, the Appeals Tribunal erred in its determination. II. Background [ 2 ] On March 5, 2008, Mr. LeBlanc, a long-haul truck driver with over 20 years experience, was injured while in the process of loading a truck equipped with a sleeping unit, owned by his employer. The precise circumstances are as

follows. Mr. LeBlanc received a telephone call at home from his company’s dispatch unit requiring him to undertake a long-haul trip to Ontario. He completed his mandatory pre-trip inspection, started his unit and began the process of stocking his unit with supplies. As there had been a snow storm the night before, Mr. LeBlanc also cleaned the snow off the unit. On his fourth trip to the unit, he slipped and fell when he was approximately five feet from the driver’s door. Mr. LeBlanc fell to one knee, holding a kitbag which weighed approximately 30 pounds in his right hand and two pillows in his left hand.

As a result, Mr. LeBlanc injured his back. All of this occurred while he was in the driveway of his home. [ 3 ] According to Mr. LeBlanc, he completed loading the vehicle and then proceeded to his employer’s terminal to pick up the trailer to be attached to his truck. When Mr. LeBlanc entered the terminal, the dispatcher realized Mr. LeBlanc was in pain and offered to attach the trailer to the unit. Mr. LeBlanc accepted the offer and went to advise the terminal manager of his accident. Mr. LeBlanc then commenced his trip, thinking he would be able to work through the pain and that it would eventually dissipate.

During the trip, Mr. LeBlanc’s condition deteriorated to the point that he called his employer to request a replacement driver and went to the hospital. Mr. LeBlanc has not returned to work since. Pursuant to his employer’s instructions, Mr. LeBlanc applied to Assumption Life for short-term disability insurance benefits and the application was granted. In February 2009, Assumption Life determined Mr. LeBlanc did not qualify for long-term disability as per the existing contract with his employer. [ 4 ] The only source of income available to Mr.

LeBlanc was disability benefits payable under the Canada Pension Plan, which recognized his injury as a debilitating one. While the Workplace Health, Safety and Compensation Commission (the Commission) accepts that Mr. LeBlanc was injured, it nevertheless denied his claim for benefits on the following basis: [TRANSLATION] On September 29, 2009, the Commission denied the Appellant’s claim, informing him that [TRANSLATION] “. . . the claim does not meet the test of a just claim that should be allowed, nor does it meet the other conditions for entitlement.

He [the Appellant] was also informed that the claim was refused pursuant to s. 16 and s. 7(1) of the Workers’ Compensation Act (the “ Act ”) and policies 21-106 Accident Reporting and Application for Benefits, 21-100 Conditions for Entitlement – General Principles, and 21-104 Conditions for Entitlement – Tests of Time, Place and Activity.” ( Decision of the Appeals Tribunal , p. 2) [Appellant’s brief, para. 13] [ 5 ] Mr. LeBlanc appealed the Commission’s decision to the Appeals Tribunal.

A hearing was held on November 15, 2010, and a decision issued on June 16, 2011, upholding the Commission’s decision to deny the claim for compensation. In its decision, the Appeals Tribunal states: [TRANSLATION] In the decision rendered on June 16, 2011, the Appeals Tribunal states: [TRANSLATION] “. . . the Appellant’s employment commences when he arrives at the terminal rather than at his home.

The Appeals Board concludes that the fall that occurred on March 5, 2008, took place at the Appellant’s residence; consequently, neither his employer nor the Commission should be held responsible for the Appellant’s injuries. This decision is also based on the reasons provided earlier. The Appeals Board has also reviewed s. 7(1) of the Act and has determined that the accident did not arise out of and in the course of employment.” ( Decision of the Appeals Tribunal , pp. 19-20) [Appellant’s brief, para. 15] Ultimately, the Appeals Tribunal decided that Mr.

LeBlanc’s accident did not occur while he was acting in the course of his employment. III. Issues [ 6 ] Mr. LeBlanc submits the Appeals Tribunal erred in law or in mixed law and fact by: (

a) Determining that Mr. LeBlanc’s employment commenced when he arrived at his employer’s terminal and not when he undertook the mandatory pre-inspection in his driveway and loaded the unit with the necessities he required while undertaking a long haul load. As

a result, the Appeals Tribunal decided he was not in the course of his employment when the accident occurred; and (

b) Not correctly applying the principles enunciated in Thibodeau v. Workers' Compensation Board (1992), (NBCA), 129 N.B.R. (2d) 271, [1992] N.B.J. No. 578 (QL),wherein a worker’s accident occurred in his driveway when he was loading histools onto his employer’s truck, and this Court held the worker was injured while in the course of his employment. IV. Standard of Review [7] The New Brunswick jurisprudence clearly establishes that decisions of the Appeals Tribunalinvolving questions of law, including questions of jurisdiction, are to be reviewed on the correctness standard.

The same standard alsoapplies to questions involving a breach of the fairness duty. Questions of mixed law and fact are reviewed on the standard ofreasonableness, as are questions of fact. However, when it comes to questions of fact, the review standard is often expressed in terms ofthe civil standard of “palpable and overriding error”. Finally, it is to be noted that a palpable and overriding error of fact qualifies as anerror of law, (see The City of Saint John v. The Workplace Health, Safety and Compensation Commission of New Brunswick and Rowe,2008 NBCA 83, 338 N.B.R. (2d) 213; Fundy Linen Service Inc. v.

Workplace Health, Safety and Compensation Commission, 2009NBCA 13, 341 N.B.R. (2d) 286; 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); Canada Post Corporation v. Workplace Health, Safety andCompensation Commission of New Brunswick, 2012 NBCA 18, [2012] N.B.J. No. 50 (QL); Keddy v.

Workplace Health, Safety andCompensation Commission, Region 3 Hospital Corporation and Anne Brown, 2002 NBCA 24, 247 N.B.R. (2d) 284; Brun v.Commission de la santé, de la sécurité et de l’indemnisation des accidents du travail (N.-B.) (1996), (NB CA), 183N.B.R. (2d) 172, [1996] N.B.J. No. 507 (C.A.) (QL); VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission andDuguay et al., 2011 NBCA 76, 376 N.B.R. (2d) 292; Stewart v. Workplace Health, Safety and Compensation Commission, 2008 NBCA45, 331 N.B.R. (2d) 278; New Brunswick Power Generation Corporation v.

Workplace Health, Safety and Compensation Commissionand Dashwood, 2011 NBCA 47, 374 N.B.R. (2d) 230; LeBreton v. Workplace Health, Safety and Compensation Commission, 2012NBCA 52, [2012] N.B.J. No. 205 (QL)). [8] In my view, this case raises two issues for which the review standard is correctness:specifically, the issues are whether the Appeals Tribunal properly applied this Court’s decision in Thibodeau; and whether the Tribunalimproperly imported tort law principles into the analytical framework to be applied when determining whether an injury arose out of andin the course of employment. V.

Statutory Framework [9] Mr. LeBlanc appeals pursuant to a statutory right of appeal contained in the Workplace Health,Safety and Compensation Commission Act, S.N.B. 1994, c. W-14. Pursuant to s. 7 of the Workers’ Compensation Act, it is a conditionprecedent to the payment of compensation benefits that the injury arose out of and in the course of the claimant’s employment:

COMPENSATION 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

(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. INDEMNISATION 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. 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. VI. Analysis [ 10 ] In my view, the Appeals Tribunal erred in failing to properly apply this Court’s decision in Thibodeau and by importing tort principles into the analysis. I shall deal with each issue in turn. A. Proper Application of the Thibodeau Decision [ 11 ] The Appeals Tribunal accepted that Mr.

LeBlanc’s actions were consistent with the necessary procedures and preparation to be undertaken by a truck driver prior to a long-haul trip: [TRANSLATION] The Appeals Board accepts the following as the preparation procedures for a long-haul trip: ▪ Truck drivers, including the Applicant, may, with the approval of their employer, keep their truck at home; ▪ It is agreed that snow and ice must be removed from the unit as soon as it is started, whether the vehicle is kept at the home of the employee or the employer’s terminal; ▪ Workers must carry out a detailed pre-inspection of their vehicle, which must run for a certain time prior to undertaking the trip.

These requirements established by the employer are both practical (the unit cannot be driven before it has warmed up) and mandatory;

▪ On March 5, 2008, ice and snow had to be removed from the truck. As it was a cold day, the vehicle had to run for approximately 30 minutes prior to setting out on the road; ▪ For trips lasting more than one day, employees must stock their truck so they can spend more than one day on the road. They must bring bedding, food, personal items, a change of clothes, and outdoor wear. They must also have their tools and other safety equipment. They must also ensure that everything in the vehicle is secured to prevent things from shifting or falling; ▪ Workers are paid for the pre-trip preparation of their unit.

However, they are paid only a nominal sum, not for the actual time spent to complete the task; ▪ Sometimes workers will leave for their trip directly from their home without stopping at their employer’s terminal. In the Applicant’s case, this usually happens when he is heading in the direction of [name of a city]. He does not make the detour from [name of a region] to [name of a city] to get to the terminal unless he has to pick up a trailer [adaptation of an excerpt of the document entitled “REFERENCE 1”]. [Decision of the Appeals Tribunal, pp. 11-12] [ 12 ] In brief, the Appeals Tribunal accepted that Mr.

LeBlanc was paid for the time he took to prepare the vehicle while in his driveway, and that he was obligated to conduct the pre-trip inspection and to stock the unit with all necessary supplies for the long haul trip to Ontario. Now to compare these facts with those that arose in Thibodeau . [ 13 ] In Thibodeau , a carpet installer injured his back and knee as he loaded a roller, which was used in his work, onto his truck. The accident occurred at his home, where he kept tools and equipment necessary for his work.

Had the accident not occurred at home, he would have driven to his employer’s store to pick up carpet before driving to the location where he was to install the carpet. The claimant was paid by piece work and not on an hourly basis. The Appeals Board (as constituted at that time) determined that Mr. Thibodeau was a worker employed by Grand Falls Carpet Ltd. when the accident occurred, but he was not acting in the course of his employment and, thus, not entitled to compensation benefits. This Court found that the Appeals Board placed too much emphasis on the basis of Mr.

Thibodeau’s remuneration and therefore erred in concluding he was not acting in the course of his employment at the time he was injured. The Court went on to conclude: The fact that his tools and equipment were at this home rather than at his employer’s store or at the customer’s residence is, in our opinion, immaterial. They were necessary for him to perform his work and, thus, he was in the course of his employment while loading them in the vehicle taking him to the job. [para.6] [ 14 ] In the case before us, Mr.

LeBlanc injured himself while stocking the unit with the items he required to undertake a two-day trip. It is common practice for drivers of these vehicles to sleep in the unit. They are specialized vehicles designed to accommodate their drivers for overnight trips, and usually include small refrigerators as well as microwave ovens for meal preparation. The drivers sleep in these vehicles as a security precaution to protect their loads, and receive no funds for alternate accommodation. As such, it could be reasonably anticipated that an accident such as Mr.

LeBlanc’s could occur because stocking the vehicle is part of the work environment of a long-haul truck driver. Drivers of such units must stock the vehicle with food, bedding, clothing, tools and other necessities required in long-haul trucking. It can thus be said that Mr. LeBlanc was injured in the course of his employment and the Appeals Tribunal was unreasonable in finding otherwise. After all, the Appeals Tribunal states at page 12 of its decision that, at the time of the accident, Mr. LeBlanc was preparing his unit in order to spend more than a day on the road.

These actions were in the course of his employment. The Appeals Tribunal also acknowledges that Mr. LeBlanc is paid [TRANSLATION] “a nominal sum” for his preparation of the vehicle before going to the terminal; therefore, it is unreasonable to determine that Mr. LeBlanc was not in the course of his employment at the time of the injury. [ 15 ] In my view, the Appeals Tribunal did not properly apply Thibodeau . I would also draw attention to the more recent decision of this Court dealing with whether an accident arose out of and in the course of employment, and the

interpretation of “in the course” of employment. In VSL Canada Ltd. v. Workplace Health, Safety and Compensation Commission, Drapeau C.J.N.B. provides an in depth analysis of the issue: These grounds of appeal bring into focus the meaning of two expressions found in the WC Act : "evidence to the contrary" (s. 7(2)) and "in the course of" employment (s. 7(1)). The

interpretation of those expressions is informed by the following principles.

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, itsprovisions must "receive such fair, large and liberal construction and

interpretation as best ensures the attainment of [its] object". InMacLeod 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. [paras. 37-38] [16] For purposes of deciding the appeal, I will focus on Thibodeau.

In that case, the Court states: It is perhaps useful to recall the remarks of Barry, C.J., K.B.D. in Fleck v. Workmen's Compensation Board, (NB KB),8 M.P.R. 33. He said at p. 43 that the Act should: receive a broad and liberal construction, free from entangling technicalities which do not affect the merits of the case, and administeredwithout too close an attention to slight deviations from the letter of the law, which, if strictly adhered to, might, in many cases, defeat thevery object which the legislature had in view. [para. 7] It follows that I would conclude Mr.

LeBlanc was in the course of his employment at the time of the accident. B. Improper Importation of Tort Principles [17] In the Appeals Tribunal’s decision, it states: [TRANSLATION] The Appeals Board examined the particular facts of the case. There had been a storm, and there was ice on the ground. How is anemployer to control all risks in such a situation? According to the Appeals Board, the fall is nothing more than a simple fall any personcould take in the same circumstances. [Decision of the Appeals Tribunal, p. 17]

[ 18 ] From this statement, it is clear the Appeals Tribunal considered tort principles in its determination of whether or not Mr. LeBlanc was injured in the course of his employment. The application of tort principles is not appropriate in a no–fault scheme. In Norman A.

Keith, Canadian Health and Safety Law , Volume 1, looseleaf (Toronto, Ont.: Canada Law Book, 2012), the author states at 1:10, page 1-5: The traditional workers’ compensation trade-off saw workers give up the right to sue their employer for negligence relating to workplace accidents and injuries in exchange for a no-fault compensation scheme for workers. The system was wholly financed by the employer.

This trade-off was intended to relieve workers of the expense, risk and legal uncertainties of a lawsuit against their employer for negligence causing workplace injury in exchange for no-fault accident and injury benefits. This historic compromise was to also ensure that workers were promptly and appropriately compensated for their accident-related lost time injuries.

Whether or not an accident was the employer’s “fault” or the worker’s “fault’, a worker who was injured and could not continue to work was in need of economic assistance and compensation. [ 19 ] Hence, it follows that the notion of fault or the inability of the employer to control the risk should not have been considered in the Appeals Tribunal’s determination. For greater certainty, I would point out that had Mr.

LeBlanc suffered the same injury while he was stopped at a rest stop for a break in Quebec, the question of whether the employer could have “controlled the risk” in the parking lot where the truck had been parked would never have been raised. [ 20 ] For the above reasons I would allow the appeal, set aside the decision of the Appeals Tribunal and declare that Mr. LeBlanc’s injuries arose out of and in the course of his employment. Mr. LeBlanc is entitled to costs of $2,500. _______________________________ Kathleen A. Quigg, j.c.a. NOUS SOUSCRIVONS À L’AVIS : _____________________________ J.C.

Marc Richard, j.c.a. ______________________________ B. Richard Bell, j.c.a.