Docket: 1823 Logan Alexander Campbell Appellant - v. -, 2012 SKCA 56

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 56 Date: 20120522 Between: Docket: 1823 Logan Alexander Campbell Appellant - and - The Workers' Compensation Board, Government of Saskatchewan, Saskatchewan Sailing Clubs Association, Sask Sport Inc., R.M. of Dundurn, No. 314, Saskatchewan Power Corporation and Saskatoon Youth Development Complex Inc. Respondents Coram: Klebuc C. J.S., Lane and Smith JJ.A. Counsel: James Gillis for the Appellant Leonard Andrychuk, Q.C. for Workers Compensation Board Charita Ohashi for Government of Saskatchewan Lindsay Wacholtz for Saskatoon Youth Development

Michael Morris for the R.M. of Dundurn Henry R. Kloppenburg, Q.C. for Sask Sport Inc. Appeal: From: 2009 SKQB 275 Heard: February 14, 2012 Disposition: Allowed Written Reasons: May 22, 2012 By: The Honourable Madam Justice Smith In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Lane Smith J.A. Introduction [ 1 ] On June 9, 2006, the appellant was seriously injured while working as an assistant sailing instructor with the Saskatchewan Sailing Clubs Association (hereafter, “Sask Sailing”).

Along with two other instructors he was in the process of loading a sailboat onto a boat trailer at Blackstrap Lake when the mast of the sailboat contacted overhead power lines. He suffered severe electrical burns to his right hand and one of his feet. As a result, his right hand was ultimately amputated. At the time Mr. Campbell was 18 years old and was an engineering student at the University of Saskatchewan. [ 2 ] Mr. Campbell brought action against all of the respondents, claiming that they were liable for the accident.

Several of the defendants claimed in their statement of defence that the action was statute barred by provisions of The Workers’ Compensation Act , 1979 , S.S. 1979, c. W-17.1 on the basis that the appellant’s injuries were the result of a work-related accident falling within the Act’s compensation scheme. Accordingly, the appellant applied to the Workers’ Compensation Board (hereafter, “the Board”) for a ruling pursuant to s. 168 of the Act as to whether his action was barred. [ 3 ] In his application to the Board, the appellant made the following submissions: (

a) As a sailing instructor he came within an “excluded industry” under The Workers’ Compensation Act Exclusion Regulations , c. W- 17.1, Reg. 2, thereby falling outside the Act ’s compensation scheme; (

b) Due to the limited contractual nature of his engagement with Sask Sailing, he was not a “worker” within the meaning of the Act ; and (

c) His action would in any event not be barred as against Sask Sailing because it did not meet the definition of an “employer” under the Act .

By a ruling dated October 24, 2008, the Board, rejecting each of these arguments, determined that the action was barred as against all the defendants by the Act . [ 4 ] The appellant then applied to the Court of Queen’s Bench for an order by way of certiorari quashing the decision of the Board and either a declaration that the action was not barred or an order by way of mandamus remitting the matter to the Board for determination according to law with directions from the Court.

The motion was brought on the grounds that the Board erred in law in relation to each of the issues identified above and also that in denying the appellant a viva voce hearing the Board violated its own policy and undertakings to the appellant and breached the principles of procedural fairness. The application was dismissed by Goldenberg J. It is from that decision that this appeal is brought. Issues

[5] The appeal raises these issues: 1. Did the chambers judge err in holding that the Board had not breached its duty of procedural fairness to the appellant in making itsruling on the s. 168 application without first holding an oral hearing? 2. Did the chambers judge err in declining to hold that the Board committed a reviewable error when it found that the appellant did notfall under the “sports instructors” exclusion in s. 3(

y) of the Exclusion Regulations? 3. Did the chambers judge err in declining to hold that the Board committed a reviewable error in ruling that the appellant was a“worker” within the meaning of s. 2(

t) of the Act at the time he was injured? 4. Did the chambers judge err in declining to hold that the Board committed a reviewable error in its finding that each of the defendants,Sask Sailing and Sask Sport Inc. was an “employer” within the meaning of s. 2(

f) of the Act at the time he was injured? Each of these issues also raises a further issue of the standard of judicial and appellate review of the Board’s decision, as will be furtheramplified below. Standard of Appellate Review, in General [6] As all of the rulings of the chambers judge involved questions of law, the parties agreed that the standard of appellate review of hisdecision is correctness. This is clearly established in a number of cases including, recently, this Court’s decision in United Food andCommercial Workers, Local 1400 v. Saskatoon Credit Union Limited, 2009 SKCA 87, [2010] 2 W.W.R. 105.

However, as the chambersjudge was himself reviewing the decision of an administrative tribunal, he also had to determine the appropriate standard of judicialreview of that decision. His decision on that matter is therefore subject to review in this Court on the standard of correctness, as is hisapplication of the correct standard of review to the decision of the Board. [7] The question of the standard of judicial review of the Board’s decision in relation to the s. 168 application is governed, generally, bythe decision of the Supreme Court of Canada in Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, which reduced theapplicable standards of judicial review of administrative decisions to two: correctness and reasonableness, depending on an analysis ofthe nature of the administrative body and its governing legislation, the presence or absence of a privative clause, and the nature of thedecision at issue. In University of Saskatchewan v. Saskatchewan (Workers’ Compensation Board of Saskatchewan), 2009 SKCA 17, 305 D.L.R. (4th) 204, this Court, applying Dunsmuir as well as the Supreme Court’s earlier decision in Pasiechnyk v.

Saskatchewan(Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890, concluded that, where the Board’s decision was not oneof “true jurisdiction”, within the meaning of Dunsmuir, the standard of review of its decision on a s. 168 application was reasonableness. [8] In the case before us, the appellant, while conceding that the reasonableness standard is generally applicable, has argued for thehigher standard of correctness in relation to two of the issues before us: whether the Board’s failure to hold an oral hearing in this matterbreached the rules of fair procedure and whether the Board erred in applying its own policy to answer the question of whether theappellant’s employment was excluded from the operation of the Act by the Exclusion Regulations.

I defer consideration of thesearguments to my more general analysis of these issues, below, for they must be assessed in the context of the precise nature of the issuesraised. Legislative Background [9] Several provisions of the Act and Regulations passed pursuant to the Act, as well as policy statements published by the Board,provide the background for this appeal. [10] The respondents’ argument that the appellant’s right of action as against them was barred was based on sections 44 and 167 of theAct: 44.

No employer and no worker or any dependant of a worker has a right of action against an employer or a worker with respect to aninjury sustained by a worker in the course of his employment. …. 167. The right to compensation provided by this Act is in lieu of all rights of action, statutory or otherwise, to which a worker or hisdependants are or may be entitled against the employer of the worker for or by reason of any injury sustained by him while in theemployment of the employer.

[ 11 ] The appellant’s application to the Board for a ruling in relation to this argument was made pursuant to s. 168, which also gives the Board jurisdiction to determine that issue: 168. Any party to an action may apply to the board for adjudication and determination of the question of the plaintiff’s right to compensation under this Act or as to whether the action is one barred by this Act, and that adjudication and determination is final and conclusive. [ 12 ] The

definitions of “employer”, “industry” and “worker” are set out in s. 2 of the Act , as follows: 2 In this Act : (f) “employer” includes any person, corporation, firm, association or body having in its service any worker engaged in any work in, about or in connection with an industry and includes: (

i) a trustee, receiver, liquidator, executor, administrator and any person who is appointed by a court or a judge who has authority to carry on an industry; (ii) the Crown in right of Saskatchewan and in right of Canada insofar as the latter in its capacity as an employer submits to the operation of this Act , any provincial permanent board or commission appointed in respect of any employment whatever and municipal corporations, school boards, and conseils scolaires, and commissions and boards having the management of any work or service operated for a municipal corporation; (iii) any person who authorizes or permits a learner to be in or about an industry; and (iv) where the services of a worker are temporarily let or hired to another person by the employer of the worker, the latter employer shall continue to be the employer for the period that the worker is working for that other person; . . . (j) “industry” means an industry to which this Act applies and includes establishment, undertaking, trade and business; . . . (t) “worker” means a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise, and includes: (

i) a learner; (ii) a member of a municipal volunteer fire brigade; (iii) an executive officer of an employer, where that executive officer is carried on the pay-roll; and (iv) any other person not otherwise coming within this definition who, under this Act or under any direction or order of the board, is deemed to be a worker. [ 13 ] The phrase “contract of service” is not defined in the Act .

Section 22 of the Act gives the Board broad powers to determine issues that arise as to the application of the Act: 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which a power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (

a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (

b) whether any injury has arisen out of or in the course of an employment; (

c) the existence and degree of functional impairment to a worker by reason of an injury; (

d) the permanence of a functional impairment resulting from an injury; (

e) the degree of diminution of earning capacity caused by an injury; (

f) the average earnings; (

g) the existence of the relationship of any member of the family of a worker and the degree of dependency; (

h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (

i) whether any worker is within the scope of this Act .

(2) The decision and finding of the board under this Act upon all questions of act and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court.

(3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. In addition, s. 19 of the Act gives the Board discretion over its procedures: 19. Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. [Section 21.1(4) is a requirement for an annual meeting public meeting.] [ 14 ]

Section 3 of the Act sets out the scope of the application of the Act, and expressly gives to the Lieutenant Governor in Council broad power to exclude any industry, employer or worker from the provisions of the Act: 3(1) This Act applies to all employers and workers engaged in, about or in connection with any industry in Saskatchewan except those industries excluded by a regulation of the Lieutenant Governor in council or by

section 10.

(2) The Lieutenant Governor in Council may, by regulation, exclude any industry, employer or worker from the provisions of this Act . [ 15 ]

Section 10 of the Act lists a number of specific exclusions from the operation of the Act, none of which is relevant to this case. It is to be noted that the regulatory power given to the Lieutenant Governor in Council by s. 3(2) is distinct from and in addition to the general regulatory power, which is granted by s. 181, as follows: 181(1) The Lieutenant Governor in Council, after consultation with the board, may make any regulations that it considers necessary to carry out the purposes of this Act and to meet cases not provided for by this Act .

(1.1) A regulation may be made pursuant to subsection (1) notwithstanding subsection 98.1(5).

(2) The Lieutenant Governor in Council may make regulations setting out guidelines for the making of decisions by the board, and a regulation made pursuant to this subsection supersedes any policy directive of the board that conflicts with it.

(3) For the purposes of

section 29.1, the Lieutenant Governor in Council, after consulting with the board, may make regulations: (

a) prescribing periods of employment and, for that purpose, may prescribe different periods of employment for different listed diseases; and (

b) prescribing a minimum period for a worker to have been a non-smoker.

(4) For the purposes of clause 165.1(3)(b), the Lieutenant Governor in Council, after consulting with the board, may make regulations governing the manner of calculating the cost of complying with an attachment. As will be noted, while s. 181 generally requires the Lieutenant Governor in Council to consult with the Board prior to exercising the regulatory powers granted by that section, s. 3(2) contains no comparable requirement.

Section 11 of the Act , however, provides for input of the Board on the question of exclusions in another way, while clearly giving the Lieutenant Governor in Council the final word on the matter: 11(1) Where the board is of the opinion that any industry excluded from this Act may properly be brought within the scope of this Act, the board may notify the Lieutenant Governor in Council.

(2) The Lieutenant Governor in Council may, upon notification mentioned in subsection (1), by order, declare that industry to be an industry within the scope of this Act on and from the date of the order or any other date that may be specified in the order. In addition, s. 12 gives the Board power, on application by an industry, employer or worker excluded from the Act , on notice to the other interested parties, to bring such industry, employer or worker within the scope of the Act as of a date specified in the order. That

section did not come into play in this case, there having been no application by an industry, employer or worker in respect of the matter. [ 16 ] Pursuant to the power conferred by s. 3(2), the Lieutenant Governor in Council passed The Workers’ Compensation Act Exclusion Regulations W-17.1 Reg. 2, exempting a number of industries, employers or employees from the operation of the Act .

Section 3 of these Regulations reads as follows: 3 The following industries and occupations are excluded from the provisions of the Act : (

a) artists, entertainers and performers; (

b) circus operations, travelling shows and tradeshows; (

c) clergy;

(

d) commercial fishing; (

e) subject to

section 17 of The Workers’ Compensation General Regulations, 1985, employment of persons by the owner of a residence for the purposes of: (

i) construction of that residence; (ii) making alterations or improvements to that residence; or (iii) performing domestic functions in that residence; (

f) consulates and foreign embassies; (

g) dairy farming; (

h) demonstrating and exhibiting; (

i) feedlot or livestock yard operations that are not in connection with and industry within the scope of the Act ; (

j) flying operations that have no place of business in Saskatchewan and that are not licensed by the Canadian Transport Commission; (

k) fur farms; (

l) grazing co-operatives; (

m) Indian bands or band endeavours on reserves; (

n) land clearing, brush cutting or stumping that is not in connection with an industry within the scope of the Act ; (

o) livestock brokers; (

p) mobile farm feed service or portable seed-cleaning plants; (

q) door-to-door carriers delivering newspapers, flyers or other publications; (

r) peddling or door-to-door sales; (

s) piggery farms; (

t) poultry farms; (

u) salespersons who sell goods for more than one manufacturer or supplier; (

v) salespersons whose employers do not have a place of business in Saskatchewan; (

w) selling or similar canvassing on streets; (

x) show judges; (

y) sports professionals, sports instructors, players and coaches; (

z) trapping; (aa) trucking firms based in the United States of America that employ only American citizens; (bb) voluntary workers, except those in mine rescue work and members of the Emergency Measures Organization or a municipal fire brigade; (cc) the cutting, hauling and sawing of wood for fuel that is not in connection with an industry within the scope of the Act ; (dd) industries that have no place of business in Saskatchewan that provide: (

A) on-site warranty service, start-up supervision, training or service incidental to a sale or lease arrangement; or (

B) consulting or similar services; unless those industries employ workers who are resident in Saskatchewan. As can be seen, this is a wide and varied list. The appellant claims that his employment as a sailing instructor fell within the excluded category of “sports professionals, sports instructors, players and coaches” in s. 3(y). [ 17 ] Finally, two published policies of the Board are relevant to the issues on this appeal. The first of these is POL 26/95 (set out in full in the appellant’s factum), dated 16 October 1995 for the stated purpose of establishing guidelines for determining if a right of action

exists. This policy reads as follows: BACKGROUND

Section 44 of The Workers’ Compensation Act, 1979 bars certain types of action, and

Section 166 – 168 give the Board exclusive jurisdiction to determine whether or not the right of action is taken away. POLICY 1. In deciding any

Section 168 application, all known parties will be given notice of the application, and any party may request a hearing. 2. Where the possibility of an action is raised, the Board Employee assigned responsibility will consider the issue and advise the claimant if he/she feels that, in their opinion, the facts available are likely to provide the basis for an action. The opinion must be qualified by indicating that it is an opinion only and is not a decision of the Board, and neither is it binding on the parties or the Board. 3.

On the request of one or more of the parties, the Board is prepared to hold a hearing before actually making a decision. 4. If no reply is received within 30 days of the date of the Notice of Application, the Board will make a determination and advise the parties of the result. 5. All hearings will be conducted by Board Members. [ 18 ] The second policy, POL 02/2005, was promulgated by the Board in relation to the exclusion contained in s. 3(

y) of the Exclusion Regulations . Its stated purpose is, “To establish guidelines for the coverage of Sports Professionals, Sports Instructors, Players and Coaches.” It reads as follows: DEFINITION Professional Sports Organization means a business or organization established for the intent of making a profit from the playing of a sport regardless of whether or not the players are being paid. BACKGROUND 1. The Workers’ Compensation Board (the WCB) has the jurisdiction under Section 22(1)(

i) to determine whether any worker is within the scope of The Workers’ Compensation Act, 1979 (the “Act”). 2. Currently,

Section 3(

y) of The Workers’ Compensation Act Exclusion Regulations (the “Exclusion Regulations”) exempts sports professionals, sports instructors, players and coaches from the coverage under the Act . 3. The Board interprets the intent of

Section 3(

y) of the Exclusion Regulations to exclude players, coaches and instructors of professional sports organizations. A professional sports organization is considered to be an organization established with the intent of making a profit from the playing of a sport. Organizations such as martial arts, dance studios or fitness clubs, for example, may or may not be established for the purpose of making a profit, however, they do so primarily by providing instruction, not by the playing of a sport. The Board does not believe the intent of the Exclusion Regulations was to exclude these types of organizations. POLICY 1.

All sports players are considered exempt under the Act . 2. Coaches and instructors of professional sports organizations are considered exempt under the Act . 3. All other coaches or sports instructors who derive earnings from coaching or instructing are required to register subject to the requirements of the act. However, coaches or instructors are not covered for injuries sustained while participating as a player/competitor in a sporting event.

Factual Background Facts Relating to the Procedural Issue [ 19 ] A number of undisputed facts are relevant to the procedural fairness issue. [ 20 ] The application by the appellant to the Board for a determination pursuant to s. 128 was initiated by a letter from appellant’s counsel to the Assistant to the Board dated March 18, 2008 (Appeal Book 112a-115a). The letter enclosed copies of the statement of claim and the statements of defence in the action. It contained a

summary of how the accident occurred and a

summary of the injuries

sustained by Mr. Campbell. In this context, the letter stated that Mr. Campbell was working “under contract” to Sask Sailing at the time of the accident. The letter then set out the appellant’s position as to the application of the Act, clearly identifying the issues to be determined by the Board as follows: Mr. Campbell says that his claim is not barred by the Act for any one or more of the following reasons: 1. As a sailing instructor he was occupied in an “excluded industry” as specified in Subsection 3(

y) of The Workers’ Compensation Act Exclusion Regulations , which provides: Excluded industries and occupations 3 The following industries and occupations are excluded from the provisions of the Act : . . . (

y) sports professionals, sports instructors, players and coaches; 2. Given the nature of his working relationship with Saskatchewan Sailing Clubs Association he was not a “worker” within the meaning of Subsection 2 (

t) of the Act because he was not “…a person work(ing) under a contract of service…”, but rather was an “independent worker” within the meaning of

Article 1.14 of the Saskatchewan Workers’ Compensation Board Policy Manual because he was working under a contract for service where no employer/employee relationship existed. He was not on any payroll registered with the Board, and had not applied on his own for coverage. 3. The Saskatchewan Sailing Club Association was not an “employer” because it did not operate in connection with an “industry” within the meaning of Subsection 2 (

j) of the Act , and did not have a payroll registered with the Board, or alternatively, did not have the activity in which Mr. Campbell was engaged as an aspect of its registered payroll. In his request for relief, appellant’s counsel expressly requested a viva voce hearing: ….In accordance with paragraph 1 of

Article 6.5 of the Saskatchewan Workers’ Compensation Board Policy Manual, Mr. Campbell requests a hearing in connection with this application. It will be our intention to call viva voce evidence at the hearing as to the nature of Mr. Campbell’s engagement as a sailing instructor, and his contractual relationship with Saskatchewan Sailing Association.

Full disclosure of any documents to be presented with this evidence will be made to all other parties prior to the hearing. (Appeal Book p. 114a) Counsel indicated that he was forwarding a copy of this letter to counsel for all the defendants named in the action. [ 21 ] The Board’s acknowledgment, by letter dated April 7, 2008, indicated that it was requesting written submissions in the matter from the other parties and then added: Once a response is received from all the parties, we will contact you regarding arrangements for a hearing.

Should you have any more submissions, please have them to WCB within one month of the date of this letter. (Appeal Book p. 117a) [ 22 ] On April 9, 2008, counsel for the respondent Saskatoon Youth Development Complex Inc. wrote to the Board (Appeal Book pp. 118a-119a) indicating that, while his client was an “employer” within the meaning of the Act , it was not the employer of the appellant and therefore lacked sufficient information to allow it to address the issues raised by the appellant’s application.

He continued: It is our position that as a party whose rights are effected by this application, the principles of procedural fairness and natural justice require that our client have the opportunity to know the details of the claims the plaintiff is making and to test the assertions of fact being advanced in support of it by disclosure of relevant documents, and an opportunity to question the plaintiff and other witnesses who may have evidence relevant to the issue.

This is the only way that the parties can properly respond to the application and the WCB can be assured it has all evidence relevant to the question it is being asked to decide. For this reason, we request the following: 1.

That if it is the intention of the Board to deal with this application by written submissions only, that the application of the plaintiff before the Board be deferred until disclosure of relevant documents by the plaintiff and his employer are completed, and examinations for discovery have been completed, so that the defendants who stand to be effected by this application can have an opportunity to obtain the information that would enable them to properly respond to the application; or 2.

Rather than ruling on this matter on the basis of written submissions, the Board direct that a hearing be held on the application, in which witnesses could be called and cross-examined, such that our client and the parties effected by this application can have an opportunity for examination of the plaintiff and his employer on his submission, and so that all parties can be assured that all relevant evidence is before the Board on this important issue.

We respectfully request the Board’s consideration of our request and a timely response, so that we can determine our course of action well in advance of the 30 day time-limit that you have imposed by your letter for responses. [ 23 ] By letter of April 10, 2008, counsel for another named defendant, St. Paul’s Roman Catholic Separate School Division No. 20, also

wrote to the Board, indicating that his client disputed many of the factual statements made in the application and asking for an opportunity to respond, adding, ….We trust that we will have that opportunity.

To that end, our client also insists on there being an actual hearing prior to any determination in order to fully explore the details of the facts alleged. (Appeal Book p. 120a) [ 24 ] On April 28, 2008, counsel for Saskatoon Youth Development Complex Inc. wrote again to the Board, complaining that it had had no response to its earlier communications and reiterating its concerns about procedural fairness and lack of access to the relevant facts and documents.

He asked for an extension of time to respond to the application. (Appeal Book pp. 122a-122b) [ 25 ] On April 30, the Assistant to the Board wrote to counsel for the appellant, copying the letter to the other parties, granting an extension for the deadline for written submissions to WCB, and indicating the following procedure to be followed by the Board: A hearing will be arranged and all parties notified in a few weeks. A copy of the file will be sent to those lawyers requesting it, in advance of the hearing. The hearing process has been set up as an information gathering process.

All parties will be allowed to present their information and rebut information but not cross examine. All comments are to be directed to the Chair. (Appeal Book p. 124a) [ 26 ] All parties made submissions in writing to the Board. The appellant’s eight page submission was dated July 17, 2008.

The defendants then renewed their concerns about the procedure to be followed by the Board, arguing that there had never been full disclosure of documents or discovery, and adding: With respect, for the Board to hold an informal “information gathering” hearing, without formal document disclosure and the opportunity to cross-examine witnesses, would deprive the parties of a fair hearing as well as the ability to properly answer the applicant’s allegations.

In our view, if the Board were to proceed in this matter, not only would the hearing process be undermined, but it would be contrary to the rules of procedural fairness and natural justice. We would therefore request that the Board reconsider its position on the nature and process of the hearing it intends to hold with respect to Mr. Campbell’s application, and direct that a full hearing be held where witnesses will be called and cross-examined, and all relevant documents will be exchanged between all parties in advance.

It is pertinent that the Board ensures all information and evidence is before it, so that it can properly determine this very important matter.

If it is the Board’s intention to proceed with a hearing by written submissions only, we would further request that the Board defer this process until after examinations for discovery, so that the parties can have the opportunity to fully examine the documents and witnesses through that process. (Appeal Book 127a-128a, letter to the Board dated July 22, 2008 from McDougall Gauley LLP) In response to this letter, counsel for the appellant wrote to the Board on July 24, 2008.

As this letter is of some significance in relation to the position now taken by the appellant, it is here set out in full: This is in response to the matters raised by the offices of McDougall Gauley in their letter to you of July 22. We are in general agreement with the concerns expressed in that letter over the need for full disclosure of documents relating to the issues of concern to our client’s application to the Board, and for proper examination of witnesses and evidence at the hearing of our client’s application.

While we believe that the factual issues can be fully examined in an informal hearing such as the Board has proposed, we would not object to a proceeding in which the parties were permitted an opportunity to cross-examine one another. However, we do not share the view expressed in counsel’s letter as to how the requirements of natural justice will impact the Board’s ability to fairly adjudicate our client’s application, or the process it must follow to assure such an adjudication.

While our client’s court action raises a number of factually complex issues, the aspect of concern to the Board (the question whether our client’s action is barred by the provisions of the Act ) raises matters which fall well within the normal purview and experience of the Board. While some of the questions of the Board may face in our application may be complicated, the issues overall do not in our view present any particular challenge to the Board’s ability to properly hear and determine these matters in full compliance with the requirements of natural justice.

It is our client’s right to apply under s. 168 of the Act for the determination of the questions he has brought to the Board, and these matters clearly fall within the exclusive jurisdiction of the Board. The Board controls its own process, and is under no obligation to defer to the court proceedings, or to any of the court’s procedures, in dealing with this application. In particular, nothing in the issues before the Board would suggest that it is either necessary or appropriate for all the parties to first submit to Examinations for Discovery before proceeding with this application.

As you know, we requested and received from your office some time ago our client’s complete file maintained by your office. We are prepared to provide copies of these to any of the parties to this application at their request. In

summary, despite the overall scope and complexity of our client’s action, we do not see that it presents any issues within the jurisdiction of the Workers’ Compensation Board which cannot be properly and effectively dealt with by the Board under its usual processes and procedures. We submit that the Board can and should deal with the matter in an expeditious and straightforward manner, as you have proposed to do. We look forward to your advice as to when the Board is prepared to hear this application. We thank you for your consideration. (Appeal Book pp. 129a-130a)

[ 27 ] There was then a lull in the proceeding prompting inquiries from some of the parties as to when the hearing was to occur. As a result, the Assistant to the Board wrote to the parties on September 15, as follows: We have received inquiries regarding the status of the

Section 168 application before the Board Members. They are currently considering the requests for an oral hearing and debating the necessity of same. Once they have reached a decision regarding a file review versus oral hearing, I will notify you in that regard. (Appeal Book p. 206a) [ 28 ] This was the first time the Board has suggested that there was some question as to whether it would hold an oral hearing in the matter. It appears that none of the parties responded to that information.

On October 24, 2008, without any further communication with the parties, the Board issued its decision in relation to the s. 168 application. In its decision, the Board devoted only one paragraph to the procedural issues that had been raised, as follows: The Board Members were asked to hold a hearing so that all parties might make their case as to why the action should or should not be barred.

After reviewing the Statement of Claim, the Statements of Defence and further submissions by the counsel, the Board Members concluded a hearing was not necessary. (Appeal Book p. 74a) Facts Relating to the Question of Whether Mr. Campbell was an “employee” Within the Meaning of the Act and whether Sask Sailing was an “employer”. [ 29 ] The appellant’s argument that, regardless of the exclusion in relation to “sports instructors” relied upon, he should not be considered an “employee” within the meaning of the Act turned in large part on the nature of the contract between himself and Sask Sport.

In effect, his argument was that his employment was of a temporary, seasonal, and casual nature and, as such, he was at no material time registered for or eligible for coverage or benefits under the Act. The evidence of the arrangement consisted in part of a number of emails exchanged between the appellant and Sask Sailing supervisor Jaime Hogan in April, May and June 2006, commencing with an email from Hogan to the appellant asking whether he was interested in teaching sailing in the summer.

This email acknowledged that the appellant was involved in sailing competitions in the summer and indicated that the job would require a commitment to be available for the sailing schools from early June until mid August unless the appellant could find a replacement for the days he would have to miss. On May 15, another email went from Hogan to a number of recipients including the appellant seeking interest in teaching sailing for the summer, starting almost immediately with day-programs at the Catholic School Board site on Blackstrap Lake.

The appellant responded, expressing an interest in teaching, but indicating that he wanted to go to sailing regattas during the summer months and therefore could not commit to a fixed schedule. He said he did not know who could replace him and suggested that if Hogan found someone more reliable who did not plan to go to the regattas he should choose them and let him, the appellant, fill in part time. Hogan responded, “If no one pops up in the next week, we’ll take you on officially and try to work around your schedule.” On May 18 Hogan sent the appellant a copy of the Blackstrap sailing

schedule for June. On June 1, Hogan contacted the appellant asking if he was able to help with the sailing school from June 9 to June 11 and again June 17 to 18. No further written communication appears to have been exchanged. In particular, no evidence was filed to indicate that the parties had agreed that the appellant would be “officially” taken on by Sask Sailing. [ 30 ] In his written submission to the Board in relation to this issue, counsel for the appellant advised as follows: 6. At all relevant times the Applicant was not willing or available to commit to an ongoing contract of service with Sask Sailing.

The Applicant’s focus over the spring and summer of 2006 was to earn a spot on Canada’s National Sailing Team. This required participation in a series of regattas scheduled over that time. (See the list of these at Appendix, P. A-1), and there was the possibility of other regattas in which he might also participate. The Applicant’s intention was at minimum to participate in all the regattas in the list, and he had in fact attended all those in the

schedule which preceded the accident on June 9, 2006. 7. The applicant was not under any financial pressure to secure steady employment over the summer of 2006. He did not need to earn income to cover the cost of his University education, and he had ample opportunity to earn casual income from a variety of sources over the summer. 8.

In all of the discussions between the Applicant and representatives of Sask Sailing in the spring of 2006, it was clear that the Applicant made no ongoing commitment to work for Sask Sailing, but rather expressed only a general interest in working as an assistant instructor if a session of instruction arranged by Sask Sailing did not conflict with the Applicant’s regatta schedule. The series of emails attached at pp.

A-2 to A-8 of the Appendix indicate that Sask Sailing had initially sought a commitment from the Applicant to serve as their “official” assistant instructor for the summer, but that it did not receive such a commitment from him. In specific reference to the email to the Applicant on May 16 (Appendix p.A-4), he was never “…take(

n) on officially…” by Sask Sailing. The applicant did not plan out his availability for employment with Sask Sailing over the summer, as the email invited him to do. The email’s observation that the weekend scheduling of the regattas would not interfere with the Applicant’s availability for work was incorrect, as the regattas typically involved several travel and practice days outside the days of the regattas themselves. 9. The Applicant was given the “spring schedule” at Blackstrap on or around May 18. (See Appendix p. A-6). He found himself generally available for it, but did not specifically commit to being there for each and every day of that schedule. Sask Sailing engaged

another individual, Scott Kohlenberg, to serve as an assistant instructor for that session. The program could thus have been effectively delivered whether or not the Applicant attended on any given day. 10. The Applicant was asked on June 1, 2006, if he could assist at a sailing instruction session scheduled for the Battlefords on June 9 – 11, and June 17 – 18. (see Appendix, p. A-7.) He agreed to the first portion of it, but gave no commitment regarding the second portion. 11.

While the Applicant understood that he might be contacted by Sask Sailing to work at sessions occurring later on in the summer, at the time of the accident he had received no such contact, and indeed, understood that no specific

schedule had yet been set for any such session. 12. At the time of the accident the Applicant was not on any payroll registered with the Workers’ Compensation Board of Saskatchewan (“WCB”), nor had those in his position in previous years ever been on such a payroll. An attempt was made by Sask Sailing or Sask Sport Inc. after the fact to register the Applicant retroactively under the Workers’ Compensation scheme (see Appendix p. A-11 to A-15). The Applicant did not sign any of the documents he was asked to sign for that purpose. 13.

The Applicant did nothing to assert or initiate any claim to WCB for coverage or compensation. His contact with WCB was initiated through others during the course of his hospital stay following the accident. It has been clear throughout WCB’s administration of this claim that the Applicant has not conceded that the claim is covered under the Workers’ Compensation scheme. (See Appendix pp. A-16 to A-20.) 14.

A representative of the Sask Sport, to whom the WCB corresponded as the Applicant’s employer, has taken the position with WCB that the Applicant did not work for them, and should not be covered in any case because he was not put on their payroll until after the injury occurred. It is not clear whether WCB was specifically apprised of that latter fact when the claim was processed. (See Appendix pp. A-21 to A-23.) [ 31 ] On June 20, 2006, eleven days after the accident in which the appellant was injured, one further email was sent from Jaime Hogan to the appellant and another of the injured sailing instructors.

This read as follows: We’re getting all you sailing guys on Sask Sport Payroll, so it is likely you’ll then be covered by workers compensation. I have about 4 forms for you to fill out (taxes, payroll authorization, direct deposit). In order to be paid by the end of June, we’ll need these forms filled out by Thursday. (I think the lady actually said Friday, but we’re aiming high).

As I said for Scott, your pay will be $10.63/hr (8hr/day for the Catholic School Board program) I’ll try to be in touch tonight to arrange for you to get these forms. (Appeal Book p. 97a) [ 32 ] One of the forms referred to in this email was a “Payroll Authorization” which named the appellant as a “temporary” employee, indicated a salary rate of $10.63 per hour, and indicated that the employee in question was employed to work 40 hours per week, Monday through Friday.

The appellant’s position is that none of these forms was ever completed by him and none accurately represents his relationship with Sask Sailing at the time he was injured or any other time. The ex post facto nature of these arrangements is confirmed as well in the Training Director Report 2006, apparently presented at the Sask Sailing Association annual general meeting in January, 2007, in which one paragraph reported: One important change made by the executive of the SSCA this past year was putting the sailing school instructors on payroll through Sask. Sport.

This allowed workers compensation to be paid to the instructors for time lost and injuries sustained during the accident on June 9, 2006.

Other benefits of using a payroll system include: the instructors get paid in a timely manner; they can utilize direct deposit; and there is some flexibility in hiring instructors on an hourly or monthly basis. (Appeal Book p. 103a) Sask Sailing reported the accident and the injuries to the Board on June 21, 2006, the day after forwarding these forms to the injured instructors, and filed an employer’s report of injury on June 29, 2006. [ 33 ] Finally, the Board appears to have sought information from its own staff as to who, if anyone, should be considered the employer of record in relation to the appellant.

Two memoranda were filed with the Board (Appeal Book pp. 201a-204a). These memoranda, dated August 25, 2008 (report of Robin Hrysak to Garth Reid) and August 29, 2008 (report of Garth Reid to the Board), respectively, (i.e., after the date of the parties’ various written submissions to the Board) suggested that, while there was confusion and conflicting information on the file, Sask Sport should be considered the employer of record in this case. Sask Sailing was said to operate under the “umbrella” of Sask Sport in two respects:

(1) Sask Sport oversees the sport

section of the Sask Lotteries Trust Fund and distributes funding to various amateur sports associations in the province, including Sask Sailing; and, (2) although each sports organization has discretion over its own employees and activities, the Administration Centre of Sask Sport will handle administrative aspects of such activities including administering the payroll. Thus, said Robin Hrysak, When paycheques and T4’s are issued, the payor shows as The Administration Centre for Sport, Culture, and Recreation. The Admin Centre also administers the WCB assessment account for Sask Sport.

All payroll handled by the Admin Centre is reported through this one assessment account. Each year, once the previous year’s actual wages have been reported to the WCB, the Admin Centre charges the WCB premiums back to each organization based on their assessable wages. Copies of the invoices showing these charges are attached. [This attachment does not appear in the material before this Court.] (Appeal Book p. 201a)

[ 34 ] Hrysak added, Logan Campbell was hired directly by the SSCA [Sask Sailing] as a sailing instructor. He received his job description, work

schedule and direction from the SSCA, but payroll and WCB premiums are all handled through the Admin Centre on behalf of the SSCA. (Appeal Book p. 202a) [ 35 ] Garth Reid’s memorandum reported: … T4’s are issued with the “payor” showing as The Administration Centre for Sport, Culture and Recreation. The Admin. Centre charges the WCB premiums back to each organization based on their portion of assessable wages. Sask Sport Inc. has maintained an account with WCB since 1977.

All payroll administered by the Administration Centre is reported through this one assessment account, including the wages of its affiliated sports associations. … There has been conflicting information as to who is the “employer of record”. Revenue and Employer Accounts (REA) identifies the employer as the one who pays the worker. REA follows CRA guidelines, and generally determines the employer of record as the entity whose name appears on the T4’s and is responsible for filing the tax return. Based on the information above, the employer of record should be Sask Sport Inc.

Sask Sport has long maintained an account with WCB in this very manner. Workers’ wages are reported and premiums paid to WCB on behalf of its affiliated member associations.

Letters on file clearly identify SSCA as one of the dozens of associations reported under Sask Sport’s account. (Appeal Book pp. 203a-204a) Neither report mentioned that the arrangement between Sask Sailing and Sask Sport in relation to the administration of the Sask Sailing payroll for sailing instructors did not occur until after the accident and injuries to the appellant, and after he had, in fact, ceased to do any work with Sask Sailing. [ 36 ] Both reports comment on the apparent informality of the agreement between the appellant and Sask Sailing.

Hrysak reported that the only payment ever issued to the appellant was a cheque on Sask Sailing’s own account for $35.75 for cash, to reimburse expenses. No wages were ever paid. His concluding paragraph stated: Unfortunately, there is a lack of information available in this case. The position of sailing instructor was not advertised or posted. Mr. Campbell did not formally apply for the position. He was known to the SSCA as part of the sailing community and the SSCA was in need of instructors, so the parties entered into this arrangement.

There is no documentation available that can substantiate employment or wages, only verbal agreements between the parties as to their intentions. (Appeal Book p. 202a) Mr. Reid concluded as his report with this comment: This case is unusual in that Mr. Campbell was never actually paid any wages, nor was a T4 slip issued. He was hired on a verbal agreement. The documentation was forwarded to Mr. Campbell for completion after the date of the injury, but was never signed and returned. As a result, Mr. Campbell was never entered onto the Admin. Centre’s payroll system.

Nonetheless, it would seem reasonable to handle Mr. Campbell’s situation in the same manner as that of any other worker that has been paid and reported under Sask Sport’s account. In my opinion Sask Sport is the employer of record in this case. (Appeal Book p. 204a) [ 37 ] Finally, in recounting the facts relevant to the issue of the status of the appellant’s employment relationship with relationship with Sask Sailing, these paragraphs included in the statement of claim are significant: 10.

In or about June of 2006 Sask Sailing hired the Plaintiff to serve as an assistant sailing instructor under a programme initiated, directed, and supervised by Sask Sailing called and hereinafter referred to as the “Mobile Sailing School Programme”. The Plaintiff was entitled to be paid an hourly wage for his work as an assistant sailing instructor for this Programme, such work to be performed on an irregular

schedule to be determined from time to time by Sask Sailing. 11. The Plaintiff’s employment under the Mobile Sailing School Programme was of a temporary, seasonal, and casual nature. Under such employment the Plaintiff was at no material time registered for coverage or benefits under The Workers’ Compensation Act, 1979, Ch. W-17.1. The Plaintiff’s position with Sask Sailing under the Mobile Sailing School Programme was an “excluded occupation” within the provisions of

Section 3(

y) of The Workers’ Compensation Act Exclusion Regulations . 12. In his position as assistant sailing instructor the Plaintiff was at all material times a “worker” in relation to Sask Sailing, and Sask Sailing was an “employer” in relation to the Plaintiff, as those terms are defined in Subsections 2(1)(ff) and 2(1)(

i) respectively of The Occupational Health and Safety Act, 1993 , R.S.S. 1978, Ch. O-1 .1. The Plaintiff pleads and relies upon the provisions of Subsection 3(

a) of that Act and says that at all material times Sask Sailing was obligated to ensure, insofar as reasonably practicable, the Plaintiff’s health, safety and welfare while engaged with Sask Sailing as an assistant sailing instructor. 13. In his position as assistant sailing instructor the Plaintiff was at all material times required to work under the direct supervision and control of his superior, an individual (hereinafter the “Head Instructor”) employed by and acting as an agent of Sask Sailing and designated as a sailing instructor. It was the duty of the Head Instructor to ensure that Sask Sailing met its obligations to the Plaintiff to

ensure his safety on the job, including those responsibilities enumerated in Paragraph 12 hereof. [ 38 ] In its decision, the Board acknowledged that the appellant’s position was that he was an independent worker under a contract for service, and that no employer/employee relationship existed and that the defendants argued that he met the definition of worker in s. 2 (

k) of the Act . However, it made the following findings, based on the written material before it: The Board Members find as follows: April 17, 2006, Jaime Hogan contacted Mr. Campbell about teaching through the summer. On May 15, 2006, Mr. Hogan sent a further email to several recipients asking for their interest in teaching sailing over the summer months as well as help with the day program run at Blackstrap Lake. Mr. Campbell replied May 15, 2006 stating he would be eager to teach for the spring and summer if it worked around his own sailing schedule. Mr.

Hogan replied May 16, 2006 and offered employment around his schedule. A further email was sent with attachments: Payroll Authorization, Employee Time Sheet, Payroll Direct Deposit Form and a TD1 Form. Mr. Campbell is listed as an employee of the Saskatchewan Sailing Clubs Association with a job title as a Sailing Instructor Assistant earning an hourly salary at $10.63 per hour working 40 hours a week. The forms gave an effective date of June 1, 2006 and the forms are from “Administration Centre (Sport, Culture, and Recreation)”. Mr. Campbell had entered an employment contract via email.

On June 21, 2006, the Workers’ Compensation Board received a call from the Saskatchewan Sailing Clubs Association identifying three of their workers were injured when loading a boat that hit a power line. All three workers were Sailing Instructor Assistants. On June 29, 2006, an Employer’s Report of Injury was completed by Jaimie [ sic ] Hogan, Training Director of SSCA stating Mr. Campbell had suffered an electrical shock June 9, 2006 while moving a boat up the hill at Blackstrap and the sailboat mast contacted a power line near the road. Mr.

Campbell’s claim was accepted and benefits were issued to the worker with a First Earnings Loss date of June 12, 2006. Mr. Gillis in his letter of March 18, 2008 indicates Ms. Campbell did not cash any cheques issued by the Workers’ Compensation Board as he felt his injuries did not fall under the workers’ compensation scheme. The Board Members also received a copy of the Training Director Report 2006 which states the Saskatchewan Sailing Clubs Association hired three instructors for the Catholic School Board Sailing Program at Blackstrap Lake.

The report goes on to say that the Executive of the Saskatchewan Sailing Club Association put the Sailing School Instructors on payroll through Sask Sport. Sask Sport Inc. is an umbrellas organization for more than 70 affiliate members. Member organizations such as the Saskatchewan Sailing Clubs Association coordinate the sporting activities and distribute funds. Sask Sport Inc. operates the administration centre for Sport, Culture and Recreation, which provides a variety of services including administrative support, payroll and bookkeeping.

T4’s from Revenue Canada are issued with the payor showing as the Administration Centre for Sport, Culture and Recreation. The Administration Centre then charges the WCB premiums back to each organization, based on their portion of assessable wages. Sask Sport Inc. has maintained an account with the Workers’ Compensation Board since 1977. All payroll administrated by the Administration Centre is reported through this one assessment account. At all material times, Saskatoon Youth Development Complex Inc. was an employer within the meaning of the Act on June 9, 2006. At all material times, St.

Paul’s Roman Catholic Separate School Board was an employer within the meaning of the Act on June 9, 2006. At all material times, Sask Power was an employer within the meaning of the Act on June 9, 2006. At all material times, RM of Dundurn was an employer within the meaning of the Act on June 9, 2006. At all material times, Government of Saskatchewan (Highways) was an employer within the meaning of the Act on June 9, 2006. Logan Campbell and the two coworkers injured on June 9, 2006 were Sailing Instructor Assistants and covered employees of Sask. Sailing Club Association with payroll administered through Sask.

Sport Inc.

Therefore, at all material times, Logan Campbell was a worker within the meaning of the Act , on June 9, 2006. (Appeal Book pp. 78a- 79a) Analysis [ 39 ] Although this appeal raises some significant issues in relation to whether procedural fairness was accorded by the Board in this case, and also in relation to the Board’s finding that the appellant was at the material time an “employee” within the meaning of the Act , it is my view that it falls to be determined on the basis that the Board committed a reviewable error in finding that the appellant’s occupation as a sailing instructor was not excluded by s. 3(

y) of the Exclusion Regulations , set out above. For this reason, I will turn to that issue before commenting on the procedure followed in this case and the related issue of the Board’s finding on the issue of the employment status of the appellant. Did the chambers judge err in declining to hold that the Board committed a reviewable error when it found that the appellant did not fall under the “sports instructors” exclusion in s. 3(

y) of the Exclusion Regulations?

[ 40 ] It will be recalled that s. 3(

y) of the Exclusion Regulations excluded from the application of the Act “sports professionals, sports instructors, players and coaches.” The appellant argues that his employment as a sailing instructor fell within the clear meaning of “sports instructor” and was therefore an excluded occupation. This Regulation was passed pursuant to s. 11 of the Act , which gives to the Lieutenant Governor in Council the power to exclude industries, employees and employers from the operation of the Act. [ 41 ] In its decision, the Board dealt with this issue summarily, in these words: The Board members use policy to provide

interpretation as defined under

Section 22. Policy 02/2005 states: 1. All sports players are considered exempt under the Act . 2. Coaches and instructors of professional sports organizations are considered exempt under the Act . 3. All other coaches or sports instructors who derive earnings from coaching or instruction are required to register subject to the requirements of the Act . However, coaches or instructors are not covered for injuries sustained while participating as a player/competitor in a sporting event. [ 42 ] It is not entirely clear what the Board took to be “defined” by s. 22 of the Act , but, as that is the

section that gives the Board exclusive jurisdiction to determine “all matters and questions arising under [the] Act”, including, in subsection (i), “whether any worker is within the scope of this Act” it is reasonable to assume that the Board was simply referring to its jurisdiction to interpret the Exclusion Regulations . Indeed, the policy document in question refers to this provision of the Act as part of the “background” for the issued “guidelines”. [ 43 ] What the Board meant by “using policy” to provide

interpretation is more controversial, for the appellant argues that, far from interpreting and applying s. 3(

y) of these regulations, a matter normally within its jurisdiction, the Board was, as a matter of policy and therefore as an exercise of its own discretion, restricting the application of that exclusion to those “sports instructors” and “coaches” who worked in professional sports organizations, a term defined by the Board, in POL 02/2005, to mean “a business or organization established for the intent of making a profit from the playing of a sport regardless of whether or not the players are being paid.” This restriction of the exclusion, it is argued, is not contained in the regulation, which applies to “sports instructors, players and coaches” generally, and therefore exceeded the Board’s legislative mandate.

In adopting and applying such a policy, the Board committed a “true” jurisdictional error, it is argued, reviewable on a standard of correctness. [ 44 ] In advancing this position, the appellant makes several important points. First, it is clear that s. 3(2) of the Act gives the power to exclude any industry, employer or worker from the operation of the Act to the Lieutenant Governor in Council, not to the Board. Unlike the general regulatory power conferred by s. 181 of the Act, this grant of power does not require the Lieutenant Governor in Council to consult the Board prior to its exercise.

Moreover, although s. 11 provides an avenue for Board input on its own motion on the issue of such exclusions, it clearly leaves the final determination to the Lieutenant Governor in Council.

Section 12 does grant power to the Board to bring an excluded industry, employer or worker within the scope of the Act, but only on application of such industry, employer or worker, and only after notice to other affected parties. It is clear that this

section did not come into play in the circumstances raised by this case. [ 45 ] Based on these considerations, the appellant argues that the Board had no legislative power to restrict the exclusion of sports instructors from the operation of the Act by way of a policy directive, for that power lay exclusively with the Lieutenant Governor in Council except to the extent that a very limited power was given to the Board in sections 11 and 12.

Insofar as it purported to do so, its error, it is argued, was one of “pure jurisdiction” within the meaning of the Dunsmuir decision, and is reviewable on a standard of correctness. [ 46 ] Second, the appellant points out that the Board clearly accepted that as a sailing instructor the appellant was acting as a “sports instructor”, in a general sense. Otherwise its application of the policy at issue would have been irrelevant.

It apparently held that the appellant fell within the third category listed in the policy it relied upon, “all other coaches or sports instructors who derive earnings from coaching or instruction” and was for that reason, in accordance with the policy, within the scope of the Act . Accordingly, while some ambiguity might in some circumstances apply to that expression, no such ambiguity seemed to come into play in this case.

Rather, the issue for the Board was whether the exclusion in the regulation should apply to all sports instructors, generally, or only those employed by “professional sports organizations”, as defined by the Board. This issue, the appellant argues, does not arise from any ambiguity in s. 3(

y) of the Exclusion Regulations , for on a clear grammatical reading of that provision, while there may be ambiguity in the first listed occupation, “sports professionals”, (in that it is unclear whether it refers to a professional attachment to sports or an attachment to professional sports, as well as being ambiguous as to what constitutes “professional”, in either case), this ambiguity does not apply to “Sports Instructors, Players and Coaches” as that expression occurs in the regulations, for these occupations are not qualified

in any way by the term “professional”. Indeed, insofar as the term “professional” is used in this regulation at all, it is used as a noun, and not as a modifying or restrictive adjective. [ 47 ] Thus, the appellant takes the position that, in relying on its own policy, the Board was not interpreting the regulation, but was effectively restricting the application of s. 3(

y) of the Exclusion Regulations beyond any reasonable

interpretation of the grammatical meaning of that regulation. In doing so, it is argued, it exceeded its jurisdiction, for it has no power, under the Act , unilaterally to restrict or enlarge the exclusions provided in the Exclusion Regulations. [ 48 ] The position of the respondents is that POL 02/2005 is nothing more than an

interpretation of s. 3(

y) and that it is clearly within the Board’s jurisdiction under s. 22(1)(

i) to provide such an

interpretation. That it chose to do so by way of a published policy statement did not affect its jurisdiction, and was simply a way the Board chose to insure consistency from case to case. The Board’s

interpretation of the regulation is therefore reviewable on a standard of reasonableness. [ 49 ] The chambers judge gave two reasons for rejecting the appellant’s position that the Board had erred in not finding that he was excluded from the operation of the Act by this regulation. In my respectful opinion, neither of these reasons is convincing. [ 50 ] First, the chambers judge held that the Board had provided a reasonable

interpretation of the regulation, on this basis: 98

Section 3(

y) of the Regulations is ambiguous and open to more than one reasonable

interpretation. The Board applying its expertise in the area of Workers' Compensation determined that this

section only excluded those whose primary source of income is derived from the occupation of playing, instructing or coaching sports, that is, professionals. This is a logical and reasonable conclusion for the following reasons: 1. Those who earn a living in playing, coaching, and instructing often have insurance coverage through their profession; 2. Those who do not earn their primary income through coaching, playing, and instructing are at a greater risk if injured as they lose their earnings from their primary income as well.

This income is replaced when Workers' Compensation coverage is in place for their secondary source of income for coaching, playing and instructing. The risk of being left without coverage is greater for workers in this category as they are not likely to have disability coverage with their secondary employer. [ 51 ] However, neither the Board’s reasons nor its published policy supports this view. The Board did not offer the rationale for its decision suggested by the chambers judge and POL 02/2005 does not reflect that rationale.

Indeed, the published policy would, in fact, bring into the scope of the Act many who do earn a living in playing, coaching and instructing sports provided they are not attached to a “professional sports organization”, as defined by the policy (i.e., one established to make a profit from the playing of a sport).

The Board’s policy would include, for example, professional golfers hired by member owned and operated golf courses, as well as swimming instructors hired and paid by competitive amateur swimming clubs, skating coaches, and tennis coaches, whether or not these workers are themselves “professionals” or earn their primary income through coaching or playing. In short, the “logical and reasonable” reading of the regulation approved by the chambers judge was not the

interpretation of the regulation provided by the Board. [ 52 ] The second reason given by the chambers judge was that, in any case, the Board’s determination of who is included as a “worker” under the Act prevails over the regulation. His reasoning was as follows: 99 The legislature gave the Board broad powers to determine who is included as a "worker" under the Act . Paragraph 2 (t)(iv) provides the Board with the authority to deem those who are not included to be included. Such inclusion can be done by way of order or "under any direction" of the Board.

It is clear that the legislature left it to the Board to determine, in spite of s. 12, whether or not to deem an individual to be a worker. 100 There is a conflict between s. 3(

y) of the Regulations, wherein the "industry" and "occupation" of "sports professional, sports instructors, players and coaches" are excluded, and ss. 2 (t)(iv) and 22(1) (

i) of the Act wherein the Board has the exclusive jurisdiction to determine who is included as a "worker" under the Act. In the case of such conflict it is the statute that must prevail. [ 53 ] It is my view that the chambers judge erred in this regard. The power of the Board to “determine” issues pursuant to s. 22 of the Act is an adjudicative power, not a legislative power.

The legislative power to exclude industries, employers and workers from the operation of the Act is given primarily to the Lieutenant Governor in Council pursuant to s. 3(2) and s. 11(2) of the Act, and only secondarily, and subject to restrictions, to the Board under s. 12. There is no conflict between these provisions and s. 22 of the Act, nor is there a conflict between the regulations passed pursuant to s. 3(2) and the powers given to the Board pursuant to s. 22 . In effect, the power given to the Board is, in the circumstances of this case, limited to the

interpretation of the Exclusion Regulations and, only in that sense, “determining” whether the appellant is excluded from the operation of the Act by those regulations. Were the

interpretation of the chambers judge correct ss. 3, 11 and 12 would all be completely redundant as would be much else in the Act. The Act does not empower the Board simply to ignore or over-rule regulations as to the scope of the Act duly passed by the Lieutenant Governor in Council.

[54] The respondents argue, however, that despite these errors on the part of the chambers judge, it is nonetheless correct to view theBoard as having simply exercised its undisputed power to interpret the regulation at issue, and that the

interpretation it gave passes thetest of reasonableness. [55] Although the question is open to some degree of doubt, I am inclined to view the action of the Board in promulgating Policy02/2005 as well as its reference to that policy in its decision, as exercises in the

interpretation of Exclusion Regulation s. 3(y), rather thanas unauthorized attempts to impose its own policy limitation to the exclusions set out in that regulation. Accordingly, in my view, itsinterpretation is reviewable on a standard of reasonableness. [56] Nonetheless, in determining whether the Board’s

interpretation was reasonable, many of the considerations raised by the appellantremain relevant. In particular, the extent to which the Board’s

interpretation of the regulation appears to step over the line separatinglegitimate

interpretation and imposition of independent policy, this would, in my view, speak to the reasonableness of the Board’sinterpretation, rather than to an error of jurisdiction. [57] In considering this issue, it is important to recognize the various effects of the Board’s policy statement.

First, and of primaryconcern in the context of this case, it interpreted the exclusion from the Act of “sports instructors, coaches and players”, as that phrase isused in the regulation, to exclude all players, but only those sports instructors and coaches “of professional sports organizations.” Noreason or justification is set out in the policy statement for this limitation. Second, the term “professional sports organization” was itselfinterpreted by the Board in such a way that many individuals who coach or instruct sports for remuneration would not fall within thescope of the exclusion.

Finally, again without explanation or justification, the policy statement provided, apparently in relation to “allother coaches or sports instructors who derive earnings from coaching or instructing,” that they were not covered by the Act for injuriessustained while participating as a player or competitor in a sporting event. [58] As I have indicated, it is the first aspect of the policy that is primarily of concern on this appeal, for the Board clearly accepted thatthe appellant, as a sailing instructor, was engaged as a “sports instructor”.

The only coherent reading of the decision is that the Boardconcluded that he did not fall within the s. 3(

y) exemption because he was not an instructor of a “professional sports organization.” Theother aspects of the Board’s

interpretation are, nonetheless, of interest because they illustrate the rather broad scope the Board gave to itsinterpretative powers. [59] Canadian jurisprudence has widely supported the principles of statutory

interpretation as set out by Elmer Driedger in TheConstruction of Statutes (2nd ed.) (Toronto: Butterworths, 1983). See, in particular, Re Rizzo and Rizzo Shoes Ltd., (SCC), [1998] 1 S.C.R. 27, at para 21. In R. v. Goforth, 2005 SKCA 12, 193 C.C.C. (3d) 354, at para. 18, Cameron J.A. summarized thebasic principle as follows: The answer lies in construing the term along the lines of the “modern principle” of statutory construction adopted by the Supreme Courtof Canada in Re Rizzo and Rizzo Shoes, ... : Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [60] In R. v. McIntosh, (SCC), [1995] 1 S.C.R. 686 at para. 21, Lamer J. endorsed Driedger’s five steps of statutoryconstruction, as follows: 1.

The Act as a whole is to be read in its entire context so as to ascertain the intention of Parliament (the law as expressly or impliedlyenacted by the words), the object of the Act (the ends sought to be achieved), and the scheme of the Act (the relation between theindividual provisions of the Act). 2.

The words of the individual provision to be applied to the particular case under consideration are then to be read in theirgrammatical and ordinary sense in the light of the intention of Parliament embodied in the Act as a whole, the object of the Act and thescheme of the Act, and if they are clear and unambiguous and in harmony with that intention, object and scheme and with the generalbody of the law, that is the end. 3.

If the words are apparently obscure or ambiguous, then a meaning that best accords with the intention of Parliament, the object ofthe Act and the scheme of the Act, but one that the words are reasonably capable of bearing, is to be given them. 4. If, notwithstanding that the words are clear and unambiguous when read in their grammatical and ordinary sense, there isdisharmony within the statute, statues in pari materia, or the general law, then an unordinary meaning that will produce harmony is to begiven the words, if they are reasonably capable of bearing that meaning. 5.

If obscurity, ambiguity or disharmony cannot be resolved objectively by reference to the intention of Parliament, the object of the

Act or the scheme of the Act, then a meaning that appears to be the most reasonable may be selected. [ 61 ] In determining whether the Board had given a reasonable

interpretation to Exclusion Regulation s. 3(y), I would offer these observations. First, the power given to the Lieutenant Governor in Council by s. 3(2) of the Act is clearly to provide for exceptions for certain industries or employees that would otherwise fall under the scope of the Act, properly interpreted. Accordingly, little is to be gained by looking at the general principles and purposes of the Act to interpret the intended scope of the exceptions provided by the regulations.

Second, it is to be presumed that the power to create such exceptions is exercised in accordance with policy concerns of the Lieutenant Governor in Council. A review of the entire Exclusion Regulations , set out above, illustrates that the exceptions deemed to be appropriate varied widely and must have reflected a variety of policy concerns.

For example, a number of the exceptions clearly relate to jurisdictional concerns—whether the Saskatchewan scheme should govern employment that is, in important respects, essentially extra- provincial. (In this respect, see s. 3(j), (v), (aa), and (dd), for example.) Most, however, relate to the nature of the work itself, and illustrate no particular pattern. For example, all artists, entertainers and performers are excluded, as are the activities of “demonstrating and exhibiting”, selling door to door or on streets, and most aspects of farming or commercial fishing.

This is only a few of the excluded occupations. [ 62 ] Accordingly, in my view there is nothing in respect of the exclusion of sports instructors and coaches, generally, that is out of harmony with the general scheme of the Act , which permits exclusions, or with other aspects of the Exclusion Regulations. [ 63 ] If we look, then, to the ordinary grammatical meaning of the regulation at issue, there is no ambiguity, in my view, in the exclusion of sports instructors, coaches and players, or at least no ambiguity as to whether only those who are associated with a professional sports organization are intended.

Nothing in the ordinary meaning or grammar of the regulation would suggest or support this limitation. [ 64 ] For these reasons, it is my view that this aspect of the regulation at issue falls clearly within the second of the Driedger interpretative principles endorsed in McIntosh : viz, where no disharmony results from the normal and clear grammatical meaning of the provision, that should be the end of the matter. There is no need to depart from that meaning. [ 65 ] Thus, in my respectful view, if the Board’s policy statement was intended as an

interpretation of s. 3(

y) of the Exclusion Regulations it is not an

interpretation that can be reasonably supported by the wording of the regulation and the principles of statutory

interpretation. To limit the exclusion of “sports instructors and coaches” provided by the regulation to those sports instructors and coaches employed by an organization established with the intent of making a profit from the playing of a sport is a significant departure from the plain grammatical meaning of the exclusion as enacted. In so limiting the

interpretation of the exclusion, the Board has in effect substituted its own policy for that of the Lieutenant Governor in Council. In fact, the Board’s confusion of its role as interpreter of the regulation with that of policy maker is evident in its conclusions. All sports players are deemed to be exempt from the Act , whether or not they play for a “professional sports organization” within the limited definition of the policy. Coaches and sports instructors not employed by such an organization are not exempt from the Act unless they are injured while participating as a player/competitor in a sporting event.

These fine distinctions and refinements are ultimately far removed from the relatively straight-forward meaning of the regulation. [ 66 ] I would conclude that the Board’s determination that the appellant’s work did not fall within the exclusion of Exclusion Regulation s. 3(

y) was unreasonable and I would allow the appeal on this basis, quashing the decision of the Board and remitting the matter to the Board for a determination in accordance with the law, on a proper

interpretation of Exclusion Regulations s. 3(

y) as excluding the appellant, in this case, from the operation of the Act . Did the chambers judge err in holding that the Board had not breached its duty of procedural fairness to the appellant in making its ruling on the s. 168 application without first holding an oral hearing? [ 67 ] The above conclusion is sufficient to determine this appeal.

However, in light of the unusual procedure followed by the Board in this case, the issue of procedural fairness merits some further comment. [ 68 ] A determination by the Board of an application pursuant to s. 168 of the Act significantly affects the rights of the parties. There is no question but that the Board is required to act in accordance with the principles of natural justice and procedural fairness, to fairly hear all parties to the issue before making its determination. Indeed, this ge

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