2014 NLCA 42, 2014 NLCA 42

Date: 20141120 Docket: 14/14 Citation: Workplace Health, Safety and Compensation Commission v. Allen , 2014 NLCA 42 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION APPELLANT AND : DOUGLAS ALLEN FIRST RESPONDENT AND : WORKPLACE HEALTH, SAFETY AND COMPENSATION REVIEW DIVISION SECOND RESPONDENT Coram: Rowe, Barry and Harrington JJ.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division 201301G3995 (2014 NLTD(G) 20) Appeal Heard: September 24, 2014 Judgment Rendered: November 20, 2014 Reasons for Judgment by Barry J.A. Concurred in by Harrington J.A. Concurring Reasons by Rowe J.A. Counsel for the Appellant: Rebecca C. Phillips Counsel for the First Respondent: Mark Murray and Michael Gillingham Counsel for the Second Respondent: Stephen Willar

Barry J.A.: [1] Douglas Allen believes the Commission has not properly calculated the pension replacement benefit (“PRB”) to which he isentitled following a workplace injury. The Commission calculated on the basis of the maximum (assessable) earnings (“MAE”) set byregulation for extended earnings loss (“EEL”) benefits which had been payable to Mr. Allen until he reached age 65. [2] Mr.

Allen points out that the statutory provision authorizing payment of the PRB refers only to the payment of “an amountequal to the amount of a benefit that the worker demonstrates … he or she has lost as the result of an injury” and does not refer to a cap ormaximum payable. [3] The Commission says that utilization of the MAE annually is necessarily implied by the statutory scheme and its purposes.

Inparticular, the Commission points to the “historic trade off” involved in workers compensation legislation whereby employers contributeto a mandatory insurance scheme, in exchange for immunity from civil suit, and workers receive no-fault compensation benefits inexchange for having relinquished their right to proceed with civil action. See the discussion in Pasiechnyk v. Saskatchewan (WorkersCompensation Board), (SCC), [1997] 2 S.C.R. 890, at paras. 23-38.

The Commission submits the workerscompensation scheme contemplates reasonable compensation but not full indemnity. [4] The Review Division upheld the Commission’s method of calculation. On an application for judicial review, the applicationsjudge found the Commission’s and Review Division’s

interpretation unreasonable, quashed the decision and remitted the matter to theCommission for calculation of Mr. Allen’s PRB without application of the MAE cap. [5] The case raises questions concerning how to reconcile assessment by courts of the reasonableness of an

interpretation ofstatutory provisions with the deference to which administrative tribunals are entitled. For reasons which follow I have concluded theapplications judge correctly applied the deferential reasonableness standard of judicial review and correctly considered the appropriateprinciples of statutory

interpretation in deciding that the decisions of the Commission and Review Commission were unreasonablebecause they adopted an

interpretation which the words of the statute in proper context could not properly bear. BACKGROUND [6] Mr. Allen, an ironworker, was injured on the job in 1996. He received EEL payments until he turned 65 in 2009. He thenbecame entitled to apply for a PRB. The Commission determined his PRB should be $1,918.25 monthly, the calculation of which itbased on his maximum assessable earnings, which by regulation could be no more than 80% of the actual earnings. Here is how theReview Commissioner explained the Commission’s approach: A Pension Replacement Benefit is provided for in the Act under Section 75(1).

It is compensation for the loss of a portion of a pension. It is not a pension. Therefore, the intent of the Act, generally, and Section 75(1), specifically, apply in determining when a workerqualifies for this benefit and how the benefit is to be calculated. The workings of the worker’s Pension Plan are considered to determinewhat the pension would have been had it not been for non-participation in the Pension Plan due to an injury. The PRB is a compensationbenefit in the same sense as a wage loss compensation benefit.

Given that a pension is deferred wages, the replacement benefit is reallyanother form of wage loss benefit, which is required to be calculated based on the characteristics of the particular pension plan and theAct. Wage loss benefits are calculated on wages lost due to an injury within the maximum assessable earnings ceiling and other statutoryprovisions. Pension Replacement Benefits are likewise calculated and based on pension benefits lost due to non-participation in the Plandue to an injury. Both benefits are non-taxable. In neither case do the benefits provide full or 100% compensation for the loss.

The Actdoes not provide for this level of benefit. [7] Mr. Allen submits this in effect amounts to imposing an 80% cap on his PRB, contrary to the express provisions of subsection75(1) of the Workplace Health, Safety and Compensation Act, RSNL 1990, c. W-11, which reads: 75.

(1) Where a worker who is eligible for benefits as a result of an injury that occurred after December 31, 1983 reaches the age of65, an amount equal to the amount of a benefit that the worker demonstrates to the commission, that he or she has lost as a result of aninjury for which he or she is receiving compensation under this Act, under the Canada Pension Plan or the Quebec Pension Plan or froma registered employer sponsored pension plan covering the worker and which is registered with and certified by the Superintendent ofPensions in accordance with the Pension Benefits Act, 1997 or an equivalent Act of another province or of the Parliament of Canada shallbe paid to him or her by the commission.

Mr. Allen argues the 80% resulting from the MAE does not provide him with “an amount equal to” the lost benefit as authorized bysection 75. His registered employer sponsored pension plan, the plan for Iron Workers Local 784, is a defined-benefit plan that basesentitlement on the number of hours worked each year to age 65. The plan speaks of entitlement to a retirement benefit based on 2% ofthe member’s “best three years of remuneration times the number of years of credited service”.

The actuary retained by the Commissionused the MAE to define the level of employment earnings and, in accordance with the practice of the Commission, applied the MAE inthe calculation of the PRB as well, although there is no express reference to the MAE in the plan. THE APPLICATIONS JUDGE’S DECISION [8] The applications judge began his analysis by looking at the “plain language” of subsection 75(1), noting that it requires thePRB to be “equal” to the lost pension benefit.

He stated “on first reading, therefore, it does not appear to permit the application of theMAE or allow for other reduction by the Commission” (paragraph 27). [9] The applications judge then went on to “explore other relevant sources of meaning to ensure that there is not some nuance orvariation in the normal or apparent meaning that might indicate a different meaning of subsection 75(1) in the particular context underconsideration.” He pointed out that the Commission is a creature of the legislature, cannot step beyond its granted authority, andconsequently may not limit the amount of the PRB payable to Mr.

Allen if it is not authorized to do so by the Act or regulations. [10] He set out

section 16 of the

Interpretation Act, RSNL 1990, c. I-19:

Every Act and every regulation and every provision of

an Act or regulation shall be considered remedial and shall receive the liberalconstruction and

interpretation that best ensures the attainment of the objects of the Act, regulation, or provision according to its truemeaning. This he noted gave rise to the “modern principle” of statutory

interpretation presented by Elmer Driedger in the 1983 second edition ofhis Construction of Statutes: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [11] Adopted by the Supreme Court of Canada in Rizzo and Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, thisformulation was confirmed by the Court in a number of cases, including Bell Express Vu Limited Partnership v.

Rex, 2002 SCC 42,[2002] 2 S.C.R. 559 at para. 26, which was cited by the applications judge. [12] The applications judge concluded that application of this remedial construction rule required he go “beyond the plain meaningof legislation and subject it to a reality check by testing it against other sources of information” (paragraph 36). He relied upon thisCourt’s decision in Archean Resources Ltd. v.

Newfoundland (Minister of Finance), 2002 NFCA 43, at para. 22: Instead of mandating some fictionalized search for a collective “legislative intention”, s. 16 directs the court to consider every provision“remedial” and to interpret it so that it “best” ensures the attainment of its “objects” according to its “true” meaning.

This requires aconsideration, as an integral part of the interpretive exercise, of the problem or “mischief” to which the legislature directed its legislativeact as a remedy and then the drawing of an inference, based on the language of the whole enactment and the court’s general knowledgeof the state of the pre-existing law and any information as to the broad social context in which the legislative act occurred, as to what,broadly speaking, the object or objects of the legislative act must have been. The end result is to arrive at a “true” meaning.

Thatinevitably requires an examination of more than the bare words of the legislative enactment that is in issue, no matter how clear orunambiguous they may at first blush appear. The surrounding text, the interrelation of other related statutes, the social and legislativecontext in which the provision was enacted, and other extrinsic aids are all sources to be consulted in this exercise.

Obviously, if the barewords of the relevant provision appear to be straightforward and seem on their face to admit of only one meaning, they may end upcontrolling the result, but even in such a case, it is not sufficient to stop the interpretive exercise at this “plain” meaning; s. 16 requiresthat at the very least this plain meaning be given a “reality check” by being tested against other relevant sources of meaning to ensurethat there is not some nuance or variation in the normal or apparent meaning that might indicate a different meaning in the particularcontext under consideration. “True” meaning is not plain meaning; it is a conclusion arrived at by reconciling all the appropriateindicators of meaning that the court is directed to consider.

He then stated, at paragraph 37: The question to be answered therefore is: does the plain language of the Act reflect the objects of the legislature? In answering thisquestion it is important to keep in mind that the court seeks not the objects of the Commission but the meaning that the legislatureintended to have the Commission administer on its behalf. [13] The applications judge noted that this Court, in Donovan v.

McCain Foods Ltd., 2004 NLCA 12, suggested that in textualanalysis assistance might be derived from the implied exclusion rule, expressio unius est exclusio alterius, which supports the view thatif a legislature expressly includes language in a certain provision within a statute, then the court can infer that it was meant to beexcluded in another provision where it is not expressly set out. He found certain provisions in the Act expressly provided for limitationson specific benefits received by an injured worker. [14] Subsections 80(2) and (8) read:

(2) In calculating average weekly earnings, they shall be considered not to exceed 1/52 of the prescribed maximum compensableearnings in effect at the beginning of the loss of earnings resulting from the injury, or at the beginning of the recurrence of the loss. . . .

(8) The maximum compensable earnings may be prescribed by regulation with effect from the date of publication of the regulation,or an earlier or later date that may be set out in the regulation. The judge pointed out these subsections expressly provide for a mandatory cap on the calculation of average earnings by the prescribedMAE in effect when the worker is injured;

section 74 expressly requires the MAE to be applied to the compensation paid to an injuredworker until he or she reaches the age of 65;

section 102 limits the amount of payroll on which assessments must be paid by employersby a cap corresponding to the MAE; and paragraph 17(1)(

b) of Regulations under the Act, CNRL 1025/96, expressly applies a cap tocompensation received by a dependent spouse who survives a worker killed in the workplace. [15] The applications judge pointed by contrast to subsection 75(1), where in his words “there is nothing in the plain language … tolimit the PRB from being full compensation for the loss of pension benefits suffered by the injured worker”.

Also, he noted sections 84and 85, providing for medical aid, imply payment of 100% of the cost. [16] The applications judge concluded that since the legislature chose to expressly make a cap applicable to certain benefits paid andnot to reference a cap in other sections, the implied exclusion rule “militated towards” a finding that the “plain language” of subsection75(1) does not permit inference of a cap. [17] Turning to the broader social and legislative context of the Act, the applications judge referred to the historic trade off involvedin the workers compensation scheme (as discussed in Pasiechnyk) and pointed out that “giving up the right to sue means that thoseworkers who may have been able to prove fault on the part of their employers may receive significantly less compensation than theywould have been awarded in damages by a court”.

[18] The applications judge rejected, however, the Commission’s submission that the objects of the legislature implied by the overallscheme of the Act required that compensation be less than 100% in every instance. He cited the comment of Goodridge C.J.N. inReference re: Workers Compensation Act, 1983 (Nfld.) (1987), (NL CA), 67 Nfld. & P.E.I.R. 16 (Nfld.

C.A.): The legislature has ordained that some will receive more, some will receive less, than they otherwise might [under the tort system]. [19] The applications judge found no “compelling contextual basis” for inferring that benefits in every case can only compensate at arate less than 100% of the demonstrated loss. He held the Commission had been “unable to point to how the language in subsection75(1) is ambiguous or unclear, even when reviewed in the broader context, thus giving rise to more than one reasonable

interpretation”. [20] He found no ambiguity arose from use of the word “benefit”, rejecting the Commission’s submission that the lost benefitreferred to in subsection 75(1) can reasonably be interpreted as the benefit paid by the Commission in lieu of the worker’s pension. Hedid not accept that

section 19 of the Act, which gives “exclusive jurisdiction” to the Commission to determine by “final and conclusive”decision the quantum of benefit payable, authorized the Commission to limit the PRB by applying the MAE, stating, at paragraph 59: The Commission was unable to point to how the language in s. 75(1) is ambiguous or unclear, even when reviewed in the broadercontext, thus giving rise to more than one reasonable

interpretation. It was submitted by the Commission that an ambiguity arises in s.75(1) from the use of the word “benefit”; that is, the lost benefit referred to there can reasonably be interpreted as the benefit paid by theCommission in lieu of the worker’s pension. According to the Commission, because s. 19 authorizes it to set the quantum of benefitpaid to a worker, it is free to limit the PRB by applying the MAE or making some other kind of reduction consistent with otherlimitations on compensation contained in the Act. This argument does not withstand scrutiny. The term “benefit” is not defined in theAct.

Nor is it used exclusively to refer to amounts paid by the Commission to an injured worker.

Section 81, for example, refersgenerally to benefits that an injured worker may receive from his or her employer as well as to “CPP benefits” paid under that pensionprogram. Also, the word “compensation”, not “benefit”, is sometimes used to describe amounts paid to an injured worker by theCommission: see for example s. 83.1(1). Consequently, the meaning of the word “benefit” must be discerned from the context in whichit is used in each instance. It is possible that any such use could be ambiguous or unclear.

In s. 75(1), however, there is no lack ofclarity; the term “benefit” is used twice – referring, first, to the compensation a worker receives from the Commission prior to age 65and, second, to the pension lost by the worker as a result of the workplace injury in respect of which he has been receiving compensationfrom the Commission.

It is the second use of the word “benefit” in s. 75(1) that is at issue here – a pension benefit proven by the workerto have been lost as a result of the injury. [21] The applications judge rejected the Commission’s argument that failure to cap the PRB could impact the financial sustainabilityand viability of the workers’ compensation scheme.

He concluded it would be speculative to infer this where evidence had not beenadduced. [22] He also refused to accept the Commission’s submission that failure to limit a PRB by applying the MAE would result in anabsurdity, since workers who have reached the normal age of retirement at 65 would receive more income in pension and pensionreplacement benefits than they received in wage loss benefits under the Act.

The Commission argued such a scenario also would beinconsistent with other legislative schemes of benefits, such as the Canada Pension Plan and the Old Age Pension Plan, which see areduction in income as a result of retirement from working life. The applications judge noted the comments of Goodridge C.J.N. inReference re: Workers Compensation Act, 1983 that benefits may exceed the compensation that a worker might otherwise have beenentitled to in the courts.

He found the statement of Goodridge C.J.N. that “benefits under the Act, in certain circumstances, couldconceivably be less than the amount recoverable in a successful tort action” to be “hardly a ringing endorsement for the proposition thatsuch benefits must, in every instance, be less than the corresponding tort recovery would have been” (paragraph 62). [23] The applications judge concluded the Commission had an onus to establish the basis for adopting a meaning other than the“plain meaning” of a statute but in this case had not provided any concrete examples of the mischief, such as income tax implications,that would be caused by adopting the so-called plain meaning in this case. [24] At paragraph 67 the applications judge stated: A court should be careful not to grant discretionary powers to the Commission that the legislature did not see fit to expressly grant.

Justas legislation should not be narrowly interpreted but must be viewed liberally in the broader legislative and social contexts, so too mustthe court respect the language employed by the legislature when that wording is clear and admits of a single

interpretation. The onusrests on the Commission to provide contextual material to satisfy the court that in [sic] the “plain” meaning of s. 75(1) is not its “truemeaning”. The Commission has not done so. [25] The applications judge then adopted the “inevitable conclusion” highlighted in McLean v. British Columbia (SecuritiesCommission), 2013 SCC 67, [2013] 3 S.C.R. 895 at para. 38: It will not always be the case that a particular provision permits multiple reasonable

interpretations. Where the ordinary tools of statutoryinterpretation lead to a single reasonable

interpretation and the administrative decision maker adopts a different

interpretation, itsinterpretation 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 makermust adopt it. [26] Finally, the applications judge stated at paragraph 69: The starting point for statutory

interpretation is the plain meaning rule. It begins with reading the legislative text in its grammatical andordinary sense. If the ordinary meaning is plain it will prevail, in the absence of a valid contextual reason to reject it (Donovan at para.32). There is nothing in the Act or any ancillary information considered by the court that alters the plain meaning of s. 75(1). As such itmust be applied by the Commission to pay to Mr. Allen an amount equal to the pension he demonstrates that he has lost as a result of hisworkplace injury, without deduction or set-off except as expressly provided for under the Act or regulations. Decision 12168 and the

decision of the Chief Review Commissioner are therefore unreasonable. THE ISSUE [27] Simply put, the primary question in the present case is whether the applications judge was correct in concluding theCommission’s and the Review Division’s

interpretation of subsection 75(1), as contemplating calculation of the PRB by utilization ofMAE figures, is unreasonable. If he was correct, then Mr. Allen is entitled to his full pension loss, which would see him receive$3,068.00 monthly rather than the $1,918.25 monthly resulting from basing the PRB calculation on the maximum assessable earningsfigure of 80% of actual earnings loss. To answer this question, consideration must be given to how application of the test ofreasonableness to the Review Commissioner’s

interpretation of subsection 75(1) may be reconciled with the court’s obligation to showdeference to the tribunal’s decision. In turn, this raises issues concerning the nature of language and the role of a judge in determiningthe meaning of a statutory direction. THE LAW AND ANALYSIS (

a) The standard of review [28] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, reformulated the deferentialstandard to be applied on judicial review of the decisions of administrative tribunals into a single reasonableness standard of review,defined by Bastarache and LeBel JJ. for the majority as follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range ofacceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decisionreasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concernedmostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concernedwith whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [48] The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does notrepresent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law,has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of thecourt and a requirement of the law of judicial review.

It does not mean that courts are subservient to the determinations of decisionmakers, or that courts must show blind reverence to their

interpretations, or that they may be content to pay lip service to the concept ofreasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process ofadjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in

part in a respect for governmentaldecisions to create administrative bodies with delegated powers” (Canada (Attorney General) v. Mossop, (SCC),[1993] 1 S.C.R. 554, at p. 596, per L’Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of“deference as respect” requires of the courts “not submission but a respectful attention to the reasons offered or which could be offered insupport of a decision”: “The Politics of Deference: Judicial Review and Democracy”, in M.

Taggart, ed., The Province of AdministrativeLaw (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L’Heureux-Dubé J.; Ryan, at para. 49). [49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to thedeterminations of decision makers.

As Mullan explains, a policy of deference “recognizes the reality that, in many instances, thoseworking day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree ofexpertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard ofReview: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93.

In short, deference requires respect for the legislative choicesto leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particularexpertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [50] As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also withoutquestion that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law.

This promotesjust decisions and avoids inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing courtwill not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysiswill bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own viewand provide the correct answer.

From the outset, the court must ask whether the tribunal’s decision was correct. [29] Mercer J.A. held for this Court in Workplace Health, Safety and Compensation Commission v. Mount Pearl et al., 2008 NLCA69, 282 Nfld. & P.E.I.R. 14, that after Dunsmuir a non-jurisdictional decision of the Review Decision of the Commission must bereviewed on the standard of reasonableness. [30] The parties in the present case accept that reasonableness is the standard which the applications judge had to apply.

TheCommission submits that, while the applications judge purported to apply that standard, he in effect in the course of his reasons applied astandard of correctness by focusing on whether the Commission’s and Review Division’s

interpretation of subsection 75 was correct,rather than considering whether the decisions were intelligible, transparent and justifiable and within the range of acceptable outcomes,as required by Dunsmuir. (

b) Was the applications judge correct in finding that the decisions under review were unreasonable? (

i) Expertise and reasonableness [31] In determining whether the applications judge properly applied the reasonableness standard, it helps to consider the commentsof the Supreme Court of Canada in Pasiechnyk, at paragraph 38:

The composition, tenure, and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of theworkers’ compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in settingassessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated.

AsWakeling J.A. commented at p. 301 in his dissenting reasons: [The Board members] are well equipped to draw on a background of experience to determine how the Act will best function so as toassure a continued consistent development of the intended purposes of the Act.

I have no reason to doubt they are well qualified todecide the various issues the legislation is designed to present them. [32] This emphasis upon respect for expertise of the Commission was not weakened by Dunsmuir, which at paragraph 48 quotedabove continues a deferential approach. [33] The Supreme Court since Dunsmuir has noted the complexity of administrative schemes and how specialized tribunals inexercising their jurisdiction, make decisions “using concepts and language often unique to their areas and rendering decisions that areoften counter-intuitive to a generalist”, with the result that these tribunals have a “margin of appreciation within the range of acceptableand rational solutions.” See, Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), 2011 SCC62, [2011] 3 S.C.R. 708. [34] The Supreme Court has also made it clear that in judicial review “deference can shield administrative decision makers fromexcessive judicial intervention even on certain questions of law as long as these questions are located within the decision makers’ corefunction and expertise”: Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R.654, at para. 30. [35] When the tribunal’s decision involves the

interpretation of its constitutive or home statute it must be presumed that the standardof review is reasonableness. See Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61,[2011] 3 S.C.R. 654 at para. 34. (ii) Competing reasonable

interpretations [36] In McLean v. British Columbia (Securities Commission), at paragraphs 31-33, Moldaver J. stated for the majority: [31] While such a view [that determining the meaning of certain words cannot possibly require any great technical expertise and thecourts can do as well as bureaucrats] may have carried some weight in the past, that is no longer the case. The modern approach tojudicial review recognizes that courts “may not be as well qualified as a given agency to provide

interpretations of that agency’sconstitutive statute that make sense given the broad policy context within which that agency must work” (National Corn Growers Assn.v. Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, at p. 1336, per Wilson J.; see also Council of Canadianswith Disabilities v. VIA Rail Canada Inc., 2007 SCC 15 , [2007] 1 S.C.R. 650, at para. 92; Mowat, at para. 25). [32] In plain terms, because legislatures do not always speak clearly and because the tools of statutory

interpretation do not alwaysguarantee a single clear answer, legislative provisions will on occasion be susceptible to multiple reasonable

interpretations (Dunsmuir,at para. 47; see also Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65 , [2012] 3 S.C.R. 405). Indeed, that is thecase here, as I will explain in a moment. The question that arises, then, is who gets to decide among these competing reasonableinterpretations? [33] The answer, as this Court has repeatedly indicated since Dunsmuir, is that the resolution of unclear language in an administrativedecision maker’s home statute is usually best left to the decision maker.

That is so because the choice between multiple reasonableinterpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker — notthe courts — to make. Indeed, the exercise of that interpretative discretion is part of an administrative decision maker’s “expertise”. [37] In the present case the Chief Review Commissioner was interpreting his home statute and had considerable expertise in sodoing. If his decision was reasonable, the applications judge had to defer to it even though another reasonable

interpretation might havebeen adopted. But an interpretative decision of a specialized tribunal will not be saved by a deferential approach if the reviewing courtcorrectly concludes the tribunal’s

interpretation is unreasonable and there is only one reasonable

interpretation. The matter thereforecomes down to consideration of the range of

interpretations which the language of subsection 75(1) might reasonably bear. (iii) Presumption of correctness [38] The Commission submits not only is there a presumption that the standard of review is reasonableness, there must also be aninitial presumption by a reviewing court that the tribunal’s decision is correct in cases like the present, even if its reasons are in somerespects defective.

To support this submission, the Commission points to the words of Abella J. in the Nurses Union case, at paragraph12: It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrativetribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”. Inhis cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached.

That is, even if the reasons in factgiven do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them.For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator,the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even ifits reasons are in some respects defective. (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in Michael Taggart, ed., The Province ofAdministrative Law (1997), 279, at p. 304)

See also David Mullan, “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s TryAgain!” (2008), 21 C.J.A.L.P. 117, at p. 136; David Phillip Jones, Q.C., and Anne S. de Villars, Q.C., Principles of Administrative Law(5th ed. 2009), at p. 380; and Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 63. (Emphasis added by Abella J.) [39] This should be considered in light of the comments of Rothstein J. for the majority in the Alberta Teachers case, released oneday before the Nurses Union decision: [54] I should not be taken here as suggesting that courts should not give due regard to the reasons provided by a tribunal when suchreasons are available.

The direction that courts are to give respectful attention to the reasons “which could be offered in support of adecision” is not a “carte blanche to reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favourof the court’s own rationale for the result” (Petro-Canada v. Workers’ Compensation Board (B.C.), 2009 BCCA 396 , 276B.C.A.C. 135, at paras. 53 and 56). Moreover, this direction should not “be taken as diluting the importance of giving proper reasons foran administrative decision” (Canada (Citizenship and Immigration) v.

Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339, at para. 63,per Binnie J.). On the contrary, deference under the reasonableness standard is best given effect when administrative decision makersprovide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasonsprovided. […] [40] I share the discomfort expressed by LeBlanc J. in Power v.

Newfoundland and Labrador (Workplace Health, SafetyCompensation Review Division), (NL SC), 2012 NLTD(G) 4, 318 Nfld. & P.E.I.R. 222, at paras. 60-61: [60] Having carefully read this decision in full, I must admit some degree of discomfort in concluding that the Nurses’ Union casestands for the proposition that, if the outcome or result of the decision falls within the range of reasonable outcomes, the reasoning givento support such decision is of no concern.

What appears to me to be the result of the decision in the Nurses’ Union case is that reasonsgiven to support a decision where reasonableness is the standard to be applied are to be considered more as an aid for the reviewingCourt to understand the adjudicator’s decision and there is no analysis to be made specifically into the reasonableness of those reasons.

Because the Nurses’ Union case seeks to uphold the Dunsmuir analysis, I am satisfied that obviously if no supportive reasons areprovided or the reasons are flawed based upon the approach to the matter to be decided, the reviewing Court retains the ability to quashthe decision under review.

Otherwise, the Court would be doing little more than showing “blind reverence” to the administrativedecision-maker, which in Dunsmuir was found to be an incorrect approach. [61] As a result, I read the Nurses’ Union case as upholding the guiding principle of deference in cases where reasonableness is theappropriate standard of review. While there is to be no discrete analysis for the reasons and the result separately, the approach to betaken is to consider the reasons together with the outcome to determine whether the result falls within the range of possible outcomes.

Inadequate or insufficient reasons, in the sense that there is a gap in them, would not support a reviewing Court’s intervention wherethose reasons, along with other reasons which could have been offered, permit the reviewing court to understand why the decision-makerdecided as it did and to determine if that decision is within the range of acceptable outcomes. Such, however, should not be seen as adirection for a reviewing court to merely be a “rubber stamp” of the original body, particularly where there is a fundamental flaw in thereasoning or the approach taken.

See also the comments of Stratas J.A. in Lemus v. Canada (Citizenship and Immigration), 2014 FCA 114, 372 D.L.R. (4th) 567: [33] At paragraphs 11 and 12 of Newfoundland Nurses, the Court reiterated the need for reviewing courts to pay “respectful attentionto the reasons…which could be offered in support of a decision” [my emphasis].

In the same case, the Supreme Court adopted thefollowing additional excerpt from Professor Dyzenhaus’ article, in an unqualified manner without any rationale: For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator,the tribunal’s proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even ifits reasons are in some respects defective.

One might well query the idea that reviewing courts are to presume the correctness of administrators’ decisions, even in the face of adefect. One might also query whether, in trying to sustain an outcome reached by flawed reasoning, the reviewing court might becoopering up an outcome that the administrator, knowing of its error, might not have itself reached. Finally, whether an outcome shouldbe left in place because of the strength of the record or other considerations has traditionally been something for the remedial stage of theanalysis, not an earlier stage: MiningWatch Canada v.

Canada (Fisheries and Oceans), 2010 SCC 2 , [2010] 1 S.C.R. 6. [41] I believe resolution of a case such as the present, dependent upon ascribing a proper

interpretation to a statutory provision, willoccur rarely, if ever, because of reliance upon a so-called presumption of correctness. I agree that a party challenging a tribunal’sinterpretation of a statutory provision will not succeed on a request for judicial intervention, without pointing to some basis, either in factor law, for concluding the tribunal’s

interpretation is unreasonable. This follows from a modern principle adopted by Rizzo, where atribunal adopting a meaning differing from the grammatical and ordinary sense of the statutory words must point to something in thecontext of the Act, be it the scheme or object of the Act or the intention of Parliament possibly revealed by the language of other statutoryprovisions, for example, to justify the differing meaning, or where a tribunal adopting the grammatical and ordinary sense of the wordsmust show it has eliminated other possible reasonable meanings by proper contextual analysis.

So in this sense it is correct to say thatMr. Allen has an onus in the present case to point to some reason, whether stemming from the facts or the words of the statute toquestion the reasonableness of the tribunal’s

interpretation. The applications judge concluded correctly that Mr. Allen had met this onusby establishing that the tribunal had ignored or given an unnatural meaning to the express wording of subsection 75(1). [42] I also accept it might be correct to say that a presumption of correctness arose in the sense that, had there been two reasonableinterpretations of the statutory language presented, then, because of the requirement for deference, the reasonable

interpretation chosenby the tribunal would prevail, as discussed in McLean. But, as discussed above, the applications judge correctly concluded all otherreasonable

interpretations had to be excluded in the circumstances of this case. The requirement for deference to a tribunal does notmean that a court must ignore defective reasoning by the tribunal in arriving at its decision. As noted by the majority in Dunsmuir, at

para. 48, quoting Professor Dyzenhaus, “the concept of ‘deference as respect’ requires of the courts ‘not submission but a respectfulattention to the reasons offered or which could be offered in support of a decision’”. The applications judge exhibited that respectfulattention in his analysis. In the present case the defective reasoning was to adopt the less-than-100% principle of compensation asjustifying departure from the grammatical and ordinary meaning of the words of subsection 75(1).

The trial judge correctly concludedneither statute nor case law had established this less-than-100% principle as an essential element in all cases of benefits paid. A so-called presumption of correctness does not affect this result. Simply put, the Commission has not provided sufficient justification for theinterpretation it adopted. Its

interpretation was not “cogent” because it did not supply a convincing explanation why its choice ofmeanings was reasonable. (iv) Reasonableness and principles of statutory

interpretation [43] Former Justice Joseph T.

Robertson in “Judicial Deference to Administrative Tribunals, A Guide to 60 years of Supreme CourtJurisprudence” (2014) 66 S.C.L.R. (2d) 1, at pp. 157 ff., asks, “What moves an interpretative decision of a specialized tribunal from thecategory of reasonableness to unreasonableness?” Justice Robertson correctly focuses on statutory ambiguity as a basis for answeringthis question, noting at page 159 that legislation may be ambiguous for one or two reasons, because there is a gap, that is “a series offactual circumstances that the draftsperson did not anticipate”, or “legislation may be ambiguous by design”, where “[t]he draftspersonconsciously used ambiguous language with a view to providing the tribunal with the flexibility to respond to varying factualcircumstances”.

He stresses that tribunals are equally bound with judges by the rules and principles governing statutory

interpretationand the critical issue is whether the perceived ambiguity is real and not imagined. Justice Robertson notes, at pages 162-63, that at timesthe Supreme Court has appeared to apply the correctness standard under the banner of reasonableness. [44] To determine whether there is more than one reasonable

interpretation of

section 75, this Court must apply the modern principleof

interpretation adopted by the Supreme Court of Canada in Rizzo, Bell and other cases, which I shall repeat here for ease of reference: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [45] Although the applications judge, at paragraph 36 of his decision, adopting the language of Archean Resources, indicated he wasgoing “beyond the plain meaning” of the legislation and subjecting the language to “a reality check by testing it against other sources ofinformation”, he returned at paragraph 37 to asking “does the plain language of the Act reflect the objects of the legislature?” Also, atparagraph 67 he concluded the Commission had “an onus to provide contextual material to satisfy the Court that the plain meaning ofsubsection 75(1) is not its “true meaning”.

Finally, at paragraph 69, he returns to what he sees as the “starting point for statutoryinterpretation”, the plain meaning rule. [46] With respect, in averting to this lurking belief that there can be a “plain meaning” or “plain language” the applications judgeerred. This approach risks oversimplifying the analysis and having greater emphasis placed upon the text of subsection 75(1) than iswarranted considering the other factors emphasized by the modern principle and considered by this Court in Archean and more recentlyin Pardy v. The Queen, 2014 NLCA 37.

What seems plain to one person does not seem plain to another. See Ellerman Lines Limited v.Murray, [1931] A.C. 126 (H.L.), at pages 148-50, where there were three differing views as to the “plain meaning” of the words “in factemployed” discussed in Lord MacMillan’s opinion. [47] The modern approach is to accept that all language may prove ambiguous, words must be read in their entire context and in theirgrammatical and ordinary sense, harmoniously with the purpose of the legislation. A reference to “plain language” or “plain meaning” isnot helpful.

The only proper approach is to maintain a focus upon the language of the text in the context of the various factorsemphasized by the modern principle. This was explained by Moldaver J. for the majority in McLean: [42] Beginning with the ordinary meaning of “the events”, on the surface it would appear that “the even[t]” giving rise to aproceeding under s. 161(6)(

d) is the fact of “ha[ving] agreed with a securities regulatory authority” to be subject to regulatory action. Byordinary meaning, I refer simply to the “natural meaning which appears when the provision is simply read through” (Canadian PacificAir Lines Ltd. v. Canadian Air Line Pilots Assn., (SCC), [1993] 3 S.C.R. 724, at p. 735). The ordinary meaning wouldthus appear to support the Commission’s

interpretation. [43] However, satisfying oneself as to the ordinary meaning of the phrase “is not determinative and does not constitute the end of theinquiry” (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140, at para. 48). Although it is presumed that the ordinary meaning is the one intended by the legislature, courts are obliged to look at other indicators oflegislative meaning as part of their work of

interpretation. That is so because [w]ords that appear clear and unambiguous may in fact prove to be ambiguous once placed in their context. The possibility of the contextrevealing a latent ambiguity such as this is a logical result of the modern approach to

interpretation. (Montréal (City) v. 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 S.C.R. 141, at para. 10) [48] In placing an onus upon the Commission to put forward contextual material to satisfy the court that the “plain meaning” ofsubsection 75(1) is not its “true meaning”, the applications judge gave the impression of inverting the order of a proper analysis. Insteadof testing the reasonableness of the Review Commissioner’s decision by attempting to reconcile all the appropriate indicators of meaningthat the court is directed to consider by Rizzo, McLean and Archean Resources and accepting that statutory

interpretation cannot befounded on the text alone, the applications judge appeared to make his own choice of the so-called plain meaning of the words ofsubsection 75(1) before seeking to determine whether the Review Commissioner’s decision could be rationally supported by the words“read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act,and the intention of parliament.” The applications judge would have erred had this in fact been his process of analysis.

When oneconsiders the decision of the applications judge in its entirety, however, it becomes clear that he does engage in a proper contextualanalysis before settling upon the true meaning of the words of subsection 75(1). His unfortunate isolated references to a “plain” meaningdid not prevent his thorough and deferential consideration of the context and purpose of subsection 75(1) before attributing a meaning tothe words of the statute.

[ 49 ] Despite the infelicitous language of the applications judge, which gives an unfortunate initial impression of commencing with an assumption as to what meaning the so-called plain language of subsection 75(1) conveyed, reviewing the entirety of his reasons makes clear the applications judge kept an open mind and complied with the requirements of the modern principle of

interpretation adopted in Rizzo . [ 50 ] Thus in paragraph 69 he stated: [the

interpretation process] begins with reading the legislative text in its grammatical and ordinary sense. If the ordinary meaning is plain it will prevail, in the absence of a valid contextual reason to reject it [citing Donovan v. McCain Foods Ltd. , supra ]. [ 51 ] He acknowledges, therefore, that he cannot stop the process of

interpretation without testing the so-called “plain” ordinary meaning by a contextual analysis. Also, earlier, in paragraph 59, the applications judge had accepted that the term “benefit” could be ambiguous or unclear and its meaning had to be determined by the context. As earlier pointed out, he stated: The Commission was unable to point to how the language in s. 75(1) is ambiguous or unclear, even when reviewed in the broader context, thus giving rise to more than one reasonable

interpretation. It was submitted by the Commission that an ambiguity arises in s. 75(1) from the use of the word “benefit”; that is, the lost benefit referred to there can reasonably be interpreted as the benefit paid by the Commission in lieu of the worker’s pension. According to the Commission, because s. 19 authorizes it to set the quantum of benefit paid to a worker, it is free to limit the PRB by applying the MAE or making some other kind of reduction consistent with other limitations on compensation contained in the Act . This argument does not withstand scrutiny.

The term “benefit” is not defined in the Act . Nor is it used exclusively to refer to amounts paid by the Commission to an injured worker.

Section 81, for example, refers generally to benefits that an injured worker may receive from his or her employer as well as to “CPP benefits” paid under that pension program. Also, the word “compensation”, not “benefit”, is sometimes used to describe amounts paid to an injured worker by the Commission: see for example s. 83.1(1). Consequently, the meaning of the word “benefit” must be discerned from the context in which it is used in each instance. It is possible that any such use could be ambiguous or unclear.

In s. 75(1), however, there is no lack of clarity; the term “benefit” is used twice – referring, first, to the compensation a worker receives from the Commission prior to age 65 and, second, to the pension lost by the worker as a result of the workplace injury in respect of which he has been receiving compensation from the Commission.

It is the second use of the word “benefit” in s. 75(1) that is at issue here – a pension benefit proven by the worker to have been lost as a result of the injury. [ 52 ] In addition, the applications judge earlier had properly recognized that the role of the court was to “first seek to supplement the reasons before it decides to subvert them”: Newfoundland and Labrador Nurses Union . [ 53 ] The applications judge correctly found that the Chief Review Commissioner had upheld the Commission’s calculation of a PRB based on wages adjusted by the application of the MAE because the Chief Review Commissioner and the Commission believed that if the Act does not provide for 100% reimbursement of lost wages, neither can a PRB compensate for 100% of a lost pension benefit.

He then noted that the so-called “plain” language of subsection 75(1) required the PRB to be “equal” to the lost pension benefit. [ 54 ] Had the applications judge stopped there, the appellant might have had a basis for seeking reversal.

However, the learned judge went beyond this “first reading” to explore other relevant sources of meaning to ensure there is not some nuance or variation in the “normal or apparent reading” that might indicate a different meaning of subsection 75(1) in the particular context under consideration. [ 55 ] The applications judge correctly noted that the Commission is a creature of statute and its authority to determine the amount of a PRB payable is constrained by the requirement to comply with subsection 75(1) (paragraphs 53 and 56). [ 56 ] The applications judge did more than offer lip service to the principles of statutory

interpretation set out in Rizzo and Archean Resources . He considered other sections of the Act, including sections 84 and 85, where there is no reference to the MAE applying yet by necessary implication the Commission is required to pay 100% of medical aid provided on behalf of a worker. The applications judge correctly concluded that, while not determinative, the implied exclusion rule supports finding that the text of subsection 75(1) does not permit inference of a cap (paragraph 45).

I say more below about the limitations of the implied exclusion rule. [ 57 ] The applications judge properly looked at the broader legislative and social context in which the workers’ compensation scheme operates and sought to identify the purpose of the Act by a thorough analysis. He found no case law to support the main submission of the Commission that a principle of compensation at less than 100% of a worker’s loss “is so integral to the scheme of workers’ compensation that corrective language must be read into the Act where it was omitted by the legislature” (paragraph 48).

Neither did he find any compelling contextual basis for implying such less-than-100% principle of compensation, pointing out the sections in the Act where the legislature, when it so intended, has expressly stated compensation should be less than 100% of full indemnity. As earlier noted, he said he had received no evidence that failure to infer a cap on the PRB could impact the financial sustainability of the workers’ compensation scheme.

He considered but rejected the Commission’s argument that failure to limit the PRB would result in an absurdity, should workers receive more in pension replacement than in wage loss benefits, pointing out that the PRB amount received would remain constant for life while EEL payments are indexed. (The applications judge also calculated that the PRB in Mr.

Allen’s case would be less than his EEL but the First Respondent did not pursue this argument on appeal since apparently there was an error in the calculation.) [ 58 ] The applications judge did concede that the tax-free status of the PRB provides some support for the Commission’s submission that the PRB should be calculated on the basis of the MAE, since otherwise an injured worker may be better off under a PRB than he would have been had he not been injured and remained entitled to his pension.

But the judge correctly decided this possibility was not compelling enough to justify the inference requested by the Commission when one considered that the impact of legislation from a different legislature (the federal Parliament) was less cogent than arguments based upon the social and economic context of the provincial statute.

The applications judge also found he did not have enough evidence regarding the impact of a tax-free PRB to use this as a basis for departing from the express language of subsection 75(1). [ 59 ] Ultimately, the applications judge concluded that the express wording of subsection 75(1) is clear, in the circumstances permits only a single reasonable

interpretation, and the

interpretation proposed by the Commission fell outside the range of acceptable outcomes

because it was unreasonable (citing McLean, at para. 38 and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1S.C.R. 339, at para. 4). [60] I am satisfied that the applications judge, despite using language which appears to rely upon a discredited “plain meaning rule”,correctly approached his task of determining the reasonableness of the Review Commissioner’s decision. He showed appropriatedeference in applying the review standard of reasonableness and followed the process of

interpretation set out in McLean. He began bylooking at the ordinary meaning of the subsection 75(1) words “equal to the amount of a benefit … lost as a result of an injury … forwhich he or she is receiving compensation … under this Act, under the Canada Pension Plan or from a registered employer sponsoredpension plan … shall be paid”. By his reference in paragraph 27 of his decision to “on first reading” it is clear he adopted the definitionof ordinary meaning set out at paragraph 42 of McLean: “the natural meaning which appears when the provision is simply readthrough”.

He accepted, however, that satisfying himself as to the ordinary meaning of the above phrase “is not determinative and doesnot constitute the end of the inquiry” and he complied with the instructions of Moldaver J. to look at other indicators of meaning: [a]lthough it is presumed that the ordinary meaning is the one intended by the legislature, courts are obliged to look at other indicators ofmeaning as part of their work of

interpretation. That is so because: [w]ords that appear clear and unambiguous in fact prove to be ambiguous once placed in their context. The possibility of the contextrevealing a latent ambiguity such as this is a logical result of the modern approach to

interpretation. See McLean, at paragraph 43, and the authorities there cited. [61] Although the applications judge believed the ordinary or “natural” meaning seemed apparent enough, as instructed by McLean,at paragraph 44, he dug deeper into the context and purpose of the provision to see if this would cast doubt on that conclusion andintroduce the possibility of another reasonable

interpretation. He sought to supplement the tribunal’s reasons before subverting them. He concluded, at the end of this process, that there was only one reasonable

interpretation. I am not convinced he showed inadequatedeference to the Review Commissioner or otherwise erred by so concluding. (

v) The implied exclusion rule [62] The Commission submits the applications judge also erred by the uncritical adoption of the implied exclusion rule of statutoryinterpretation, expressio unius est exclusio alterius. As explained in Ruth Sullivan, Sullivan and Driedger on the Construction ofStatutes, 4th ed., (Toronto: LexisNexis, 2002), at p. 186: An implied exclusion lies whenever there is reason to believe that if the legislature had meant to include a particular thing within itslegislation, it would have referred to that thing expressly.

But at paragraph 192, Sullivan and Driedger note that the implied exclusion argument may be rebutted by offering an alternativeexplanation of why the legislature expressly mentioned some things and was silent with respect to others. It may have sought toemphasize the importance of the matters mentioned or, out of an abundance of caution, ensure they are not overlooked. [63] This Court has on a number of occasions expressed caution about the use of the implied exclusion rule. In Eco-ZoneEngineering Limited v.

Grand Falls-Windsor (Town), 2000 NFCA 21, at para. 49, Cameron J.A. stated: The respondent replies that the term is useful only in the context of the

interpretation of legislation. No authority has been provided forsuch a limitation. However, the case law is filled with warnings regarding the blind application of the maxim. It has often beendescribed as a valuable servant but a dangerous master. (See the discussion of Marshall J.A. in R. v. Sall (1990), (NLCA), 81 Nfld. & P.E.I.R. 10 at p. 17 and the cases cited therein.) The expression only operates where not outweighed by otherinterpretative factors. In R. v. Sall, at paragraphs 46-47, Marshall J.A. cautioned by noting the words of Willis J. in Colquhuon v.

Brooks: [46] From the foregoing it is evident that Farris, C.J.B.C., applied the maxim expressio unius est exclusio alterius to arrive at hisinterpretation of an appeal court's powers. However, whatever may be the utility of this canon of construction as an aid to interpretingprivate bargains, both British and Canadian authorities have held it to be an unreliable means of statutory

interpretation and one whichshould be employed with caution. Thus in Colquhuon v. Brooks (1887), 19 Q.B.D. 400, Wills, J., in considering the construction of astatute observed at p. 406: “I may observe that the method of construction summarized in the maxim: ‘Expressio unius exclusio alterius’ is one that certainlyrequires to be watched. Perhaps few so-called rules of

interpretation have been more frequently misapplied and stretched beyond theirdue limits. The failure to make ‘expressio’ complete very often arises from accident, very often from the fact that it never struck thedraftsman that the thing supposed to be excluded needed specific mention of any kind.” [47] Similar views have been expressed by the Supreme Court of Canada over the years (Turgeon v. Dominion Bank, (SCC), [1930] S.C.R. 67, per Newcombe, J., p. 71 “… while it is often a valuable servant, it is a dangerous master to follow”;Congrégation des Frères de 1’Instruction chrétienne v.

School Commissioners for the Municipality of Grand Pré, (SCC), [1977] 1 S.C.R. 429, per Pigeon, J., p. 425, where he stated the maxim “… is far from being an invariable rule”; Jones v. A.G. ofNew Brunswick, (SCC), [1975] 2 S.C.R. 182, per Laskin, C.J., at pp. 195-196 “This maxim provides at most merely aguide to

interpretation, it does not preordain conclusions”). See also Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission, (SCC), [1989] 1S.C.R. 1722, at p. 1756, where the Court held that an implied exclusion argument may be outweighed by other factors indicatinglegislative intent.

[ 64 ] I am not persuaded that the applications judge erred in his use of the implied exclusion rule in these circumstances. He accepted that this rule is not determinative and applied it only as a guide to

interpretation to support his primary conclusion that no compelling contextual basis could be found to support the Commission’s main argument that workers’ compensation benefits, including the PRB, can only compensate at a rate less than 100% of the worker’s demonstrated loss in all cases. Use of the implied exclusion rule in this case does not warrant reversal. (vi) The tribunal’s flawed logic [ 65 ] I agree with Justice Roberston where he concludes in his paper, at page 178, that in cases such as this, where the applicable review standard is reasonableness, the reviewing court must defer to the tribunal’s right to choose among competing reasonable

interpretations in the face of ambiguity. That is clear from McLean . But I see nothing incorrect in the applications judge’s decision, after a full and proper contextual analysis, to conclude there remained only one reasonable

interpretation, that the grammatical and ordinary sense of “equal to the amount of a benefit lost” should be adopted, and that it was not reasonable for the Commission to ignore the constraints of the language of subsection 75(1) and of the pension plan by interjecting the MAE limitation. [ 66 ] In the present case the decision of the Review Commissioner and the Commission meets the Dunsmuir test of transparency and intelligibility. The Review Commissioner clearly explains how the decision is based upon reliance upon MAE figures for calculation of the PRB.

He also explains that the reason for this reliance is the Commissioner’s belief that the workers’ compensation scheme set out in the Act requires for its effective implementation adherence to a less-than-100% principle of compensation in the case of PRBs as well as for certain other benefits. The reasons of the applications judge reveal that he found this reasoning transparent and intelligible.

But he concluded the Commission was not justified in adopting this principle for PRBs, in light of the constraints imposed by the language of subsection 75(1), properly construed, utilizing the contextual analysis required by the modern principle of statutory

interpretation. It was not justified because the Commission’s decision falls outside the Dunsmuir range of “possible, acceptable outcomes which are defensible in respect of the facts and law” by reason of not being a rational

interpretation in light of the meaning which must be given to the wording of subsection 75(1). [ 67 ] While I do not accept that all of his comments correctly express the present law on judicial review (they may better be viewed as thoughtful suggestions for reform), I do agree with the indicia of reasonableness identified by Professor Paul Daly as a basis for justifying judicial intervention: … An applicant for judicial review must first identify indicia of unreasonableness that afflict a decision. These indicia are drawn from the need to ensure “basic consistency in the fundamental legal order”.

Illogicality, inconsistency with statutory purpose or underlying values, differential treatment and unexplained changes in policy are all examples of such indicia that imperil the rule of law and good administration. Quite properly, the onus is on the applicant to demonstrate reviewable error; it is not for the administrative decision- maker to demonstrate that it has acted in a manner that is beyond reproach. It is very important to note, however, that establishing the presence of one of these indicia of unreasonableness is not sufficient to justify quashing a decision.

Establishing the presence of one of these indicia imposes “a provisional or tactical burden” of justification on the administrative decision-maker which they can discharge by reference to evidence and/or cogent reasons; if not, an adverse inference will be drawn against them. Failure to discharge this burden is what justifies a court in striking down an administrative decision; failure is the “something more than mere error” which justifies judicial intervention. But these indicia of unreasonableness should emphatically not be treated as a “laundry list” of reasons for intervention.

Intervention is not automatic, for respectful attention must be paid to the position of the decision-maker. In determining whether indicia of unreasonableness are present or the burden of justification has been discharged, some judicial subjectivity is unavoidable. But where an administrative decision-maker can provide a cogent explanation for why it took a decision which a court of law would not have taken, there is no justification for judicial intervention. This explanation need not be couched in legalistic terms.

It should demonstrate a reasoned attempt to explain the apparent shortcoming of the decision from the perspective of a decision-maker charged with regulating a particular subject-matter. Paul Daly, Unreasonable

Interpretations of Law (2014), 66 S.C.L.R. (2d) 233, at pp. 260-61 . I must note here that I do not believe it will be any easier to explain why an explanation provided by an administrative decision-maker is “cogent” than it is to explain why language is not “clear” or what the “range” of acceptable outcomes should be. [ 68 ] Professor Daly considers fatal flaws in logic by a tribunal to be one acceptable basis for judicial intervention because the decision-maker will not be able to offer a “cogent” explanation for their presence.

At page 264 he correctly points out that deference is not a licence to administrative tribunals to ignore statutory language altogether: … It is plain that giving an unnatural meaning to a statutory term requires an explanation. So too does ignoring a term altogether. An

interpretation which runs contrary to the purpose of the statute (as defined by the administrative decision-maker) would also be problematic. But in these circumstances, the decision is likely to be tainted by the sort of illogicality described in the previous section. Where a decision-maker has not cogently explained such errors or (apparent) illogicalities, judicial intervention will be justifiable. Whether a statutory term has been given “an unnatural meaning” or is being ignored requires ascribing some “natural” meaning to that term.

This must be done in a principled fashion or else be nothing more than capricious or arbitrary decision-making. Also, where a submission of unreasonableness is based upon the purposes of a statute, if the courts are to have any role at all, they must be entitled to interpret the statute to determine these purposes. The reference in Dunsmuir to “a range of possible, acceptable outcomes” invites the question “acceptable to whom?” The answer must be to the court engaged in judicial review.

For this reason I do not agree with Professor Daly’s argument that the administrative decision-maker’s determination of purpose and meaning should prevail and that there should not be judicial intervention on the basis of technical principles of statutory

interpretation and perceived clarity of statutory provisions. [ 69 ] Professor Daly argues, at page 267, that “[t]he starting point is to recognize that the gateway to deference is not the existence of ambiguity or vagueness; it is the initial delegation of interpretative authority”. But determining the extent of the authority delegated

requires interpreting inherently ambiguous statutory language. That task lies with the courts, which apply the principles of statutory

interpretation to identify the extent of the authority. And to identify is to circumscribe. [ 70 ] In the present case the applications judge correctly concluded the authority of the Commission to set the amount of benefits paid is curtailed or circumscribed by the language of subsection 75(1). When properly construed, employing the appropriate contextual analysis, this language required the Commission to award a pension benefit equal to the pension lost.

The Commission’s decision to employ the MAE figures in calculating the PRB was unreasonable because it either ignored the language of the Iron Workers’ Local 784 pension plan, which based the pension lost by Mr. Allen on “2% of the best three years of remuneration” and not on the MAE, or gave this language an unnatural meaning for which the Commission provided an inadequate explanation.

SUMMARY AND DISPOSITION [ 71 ] In

summary, the applications judge was correct in concluding the Commission’s and the Review Commissioner’s

interpretation of subsection 75(1), as contemplating calculation of the PRB by utilization of MAE figures is unreasonable and Mr. Allen is entitled to his full pension loss of $3,068.00 monthly rather than the MAE-based figure of $1,918.25. [ 72 ] The appeal is dismissed with party-and-party costs in this Court. Mr. Allen did not request costs at trial. ____________________________ L. D. Barry J.A. I Concur: _______________________________ M. F. Harrington J.A.

Separate Concurring Reasons by Rowe J.A. [ 73 ] I have read the reasons of my brother Barry, with which I concur, with the following comments. [ 74 ] In paragraph 46 et seq . Justice Barry takes issue with the trial judge’s references to “plain meaning” and “plain language”. I take “plain meaning” and “plain language” to be simply other words to express that part of Driedger’s rule which refers to “reading the legislative text in its grammatical and ordinary sense”.

I readily concede this is not the end of the analysis, but rather its beginning. [ 75 ] Justice Barry goes on to state in para. 47, “The modern approach is to accept that all language may prove ambiguous”, relying on, inter alia , McLean and Archean Resources . But not everything is complicated. Some things are plain on their face. Specious arguments can be dressed up as relevant “nuances”.

And while context can be important, it is no less important to avoid “over contextualization”, such that the meaning given to words becomes unpredictable. [ 76 ] In the context of interpreting a contract “(rather than a statute) I would note the following passage in Sattva Capital Corporation v. Creston Moly Corporation , 2014 SCC 53 , at paragraph 57 : While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement.

There is a parallel, it seems to me, between the foregoing and the use of context in the interpretive process for statues. [ 77 ] Whatever term is used for a court’s

interpretation of legislation, (e.g. “natural meaning” in McLean or “true meaning” in Archean ), the reality is that the meaning ascribed to the words is simply authoritative, in that the words have a given meaning determined by the courts. [ 78 ] Finally, concerning the references at paragraph 67-69 to Professor Daly’s views on judicial review (which Justice Barry notes “may better be viewed as thoughtful suggestions for reform”), I make no comment, save that I need not have reference to them to decide this case. __________________________________ M. H. Rowe J.A.