Sciberras v. Workers’ Compensation Date:, 2011 MBCA 30

Citation: Sciberras v. Workers’ Compensation Date: 20110401 Board (Man.), 2011 MBCA 30 Docket: AI 10-30-07334 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Barbara M. Hamilton Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier B E T W E E N : PAUL SCIBERRAS ) G. A. McKinnon ) for the Appellant (Applicant) Respondent ) ) S. L. Carson and - and - ) D. G. Bartel ) for the Respondent THE WORKERS COMPENSATION ) BOARD OF MANITOBA ) Appeal heard: ) September 23, 2010 (Respondent) Appellant ) ) Judgment delivered: ) April 1, 2011 FREEDMAN J.A.

OVERVIEW 1 Compensation paid to injured workers under The Workers Compensation Act , C.C.S.M., c. W200 (the Act ), is generally based on the worker’s actual earnings before the accident. The Act gives the appellant, the Workers Compensation Board of Manitoba (the Board), certain discretion to increase the compensation for injured apprentices. The Board has enacted Policy No. 44.80.30.30 (titled “Prospective Earnings: Apprentices and Youthful Workers”; hereinafter, the Policy) setting out the circumstances in which it will exercise its discretion.

Generally, injured workers who are “apprentices” may have their compensation based on their “probable earning capacity.” 2 The respondent was seriously injured at work. He asserted that he was an apprentice, and was entitled to have his compensation reflect his probable earning capacity. Relying on the Policy, the Board rejected this aspect of his claim, and determined that his compensation for his injury would be based on his actual earnings. On appeal, the Board’s Appeal Commission (the Commission) agreed with the Board.

A motion judge decided that the Policy was ultra vires the Board and quashed the Commission’s decision (the Decision). The Board appeals the judge’s decision. The judge declined to rule on the respondent’s argument that the Decision was unreasonable, and the respondent cross appeals that part of the judge’s decision. 3 For the reasons that follow, in my opinion, the judge erred in finding the Policy to be ultra vires the Board. Enacting the Policy was within the authority of the Board, and the Policy is reasonable. Further, in my opinion, the Decision meets the applicable standard of reasonableness.

Thus, I would allow the Board’s appeal and dismiss the respondent’s cross appeal. FACTS 4 The respondent started his employment with Bergen Reinforcing

(2000) Inc. (Bergen) on August 16, 2006. Just over three

months later, he fell off a platform at work. He suffered a spinal cord injury, became a paraplegic and will not be able to return to work in the ironwork industry. 5 He applied to the Board for compensation. His application was approved and he has since been receiving compensation benefits under the Act .

The issue between the parties is the determination of the basis for his compensation. 6 The key provision in the Act is s. 45(3) : Adjustment of earning capacity 45(3) Where the board is satisfied that a worker’s average earnings before the accident do not fairly represent his or her earning capacity because the worker was an apprentice in a trade or occupation, the board may adjust wage loss benefits from time to time by deeming the worker’s average earnings to be an amount that, in its opinion, reflects the probable earning capacity of the worker in the trade or occupation. 7 It is not disputed that the Board has certain authority to enact policies (it is disputed that the Board had the authority to enact the Policy under review).

The Policy provides a basis for determining, for purposes of the Act , who qualifies as an apprentice, how average earnings will be calculated and when they will be adjusted, and the rates of adjustment from time to time.

What is relevant here is the following definition in the Policy: 1(a)(i) “ Apprentice ” in a trade means an apprentice as defined under the terms and conditions in The Apprenticeship & Trades Qualifications Act (i.e., unless the person is declared an apprentice in a designated trade under The Apprenticeship & Trades Qualifications Act , the person is not an apprentice for the purposes of this policy). 8 The Apprenticeship and Trades Qualifications Act , S.M. 1998, c. 54 (the ATQA ; now The Apprenticeship and Certification Act , C.C.S.M., c.

A110) provides: Agreement of no effect unless registered 17(3) An apprenticeship agreement has no effect under this Act unless it is registered by the director. Prohibition of apprenticeship except by agreement 17(9) No person shall work for an employer as an apprentice in a designated trade except under an apprenticeship agreement, and no employer shall employ a person as an apprentice except under an apprenticeship agreement. 9 It appears to be undisputed that the trade of “ironworker” is a designated trade for purposes of the ATQA .

The respondent was not party to an apprenticeship agreement as contemplated under the ATQA . 10 The initial adjudicator for the Board told the respondent that he could not be considered an “apprentice” as defined in the Policy and was not eligible for an adjustment of earning capacity. The adjudicator thus determined his average earnings based on his actual earnings in the twelve months prior to the accident. 11 The Board’s review officer denied the respondent’s appeal.

She noted that the Policy was “more stringent” than the equivalent Ontario policy, since the Policy “does not allow for oral agreements and has clear

definitions of who is considered to be an apprentice.” His request was denied since he was not registered as an apprentice under the ATQA at the time of the accident and, thus, did not meet the requirements of the Policy. This decision was then appealed to the Commission. THE COMMISSION’S DECISION 12 The respondent’s evidence before the Commission was that he chose ironwork as his career path, and wanted to apprentice to obtain journeyman status and wages.

When he joined Bergen, he took a pay cut, but did so, he said, for the long-term gain, because unlike his previous employer, Bergen had an apprenticeship program.

Whereas his starting hourly rate of pay with Bergen was $15.24 per hour, a journeyman ironworker working at Bergen under the collective bargaining agreement with the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers Local 728 (the Union) at that time could earn at the rate of $23.45 per hour. 13 He testified at the Commission hearing that he had every intention of signing an apprenticeship agreement and participating in the formal training under the ATQA . Before that happened, the accident occurred.

At the time of the accident, he was not a full member of the Union and he had never signed an apprenticeship agreement.

14 The Commission said: Although there appears to be consensus between the worker, his union and the employer that the worker was considered by all to be an apprentice, the Appeal Commission and its panels are required by the Act to apply the policies of the WCB.

Section 60.8(6) specifically provides that: “The appeal commission is bound by the policies of the Board of Directors.” Thus, despite the apparent consensus about the worker’s status as an apprentice, we are bound to interpret and apply the Policy. 15 The Commission observed that: … [T]he meaning of the term “apprentice” is defined with reference to the terms and conditions of the AQTA [ sic ]. We think it noteworthy that the Policy does not simply adopt the definition of “apprentice” as provided in the AQTA [ sic ], but rather incorporates how the term is defined under the terms and conditions of the AQTA [ sic ]. … [S]ection 1(a)(

i) provides clarification by stating that a person is not an apprentice for the purposes of the Policy: “…unless the person is declared an apprentice in a designated trade” (emphasis added). In our view, keeping the two observations in mind, the key to

interpretation of the Policy is whether the worker can be “declared” an apprentice pursuant to the “terms and conditions” of the AQTA [ sic ]. 16 The Commission considered the respondent’s arguments that there were several ways under the ATQA to achieve journeyman status, but said that the facts of the case did not conform to those arguments. It also said: …. The panel does accept the proposition that the AQTA [ sic ] permits a worker to achieve journeyman status in more than one way …. … [T]hat does not necessarily mean that there is more than one way to become an apprentice.

In other words, just because a person has become a journeyman, it does not necessarily follow that prior to becoming a journeyman, the person was an apprentice. 17 It then expressed the essential reasons for its Decision: We interpret section 17(9) of the ATQA to mean that unless a registered apprenticeship agreement is in place, a worker cannot be called or declared an apprentice.

The agreement must necessarily be registered because subsection 17(3) provides that: “An apprenticeship agreement has no effect under this Act unless it is registered by the director.” Thus, although an unregistered worker performing ironwork may ultimately be able to achieve journeyman status by way of credits/challenge, section 17(9) provides that the person may not be considered an apprentice while gaining the work experience.

It is the panel’s view that in order to be declared an apprentice under the terms and conditions of the AQTA [ sic ], an individual must be a party to a registered apprenticeship agreement under that act . Although there is no requirement in the definition

section of the AQTA [ sic ] for the apprenticeship agreement to be registered or in writing, the terms and conditions of the ATQA (in particular, subsection 17(3)) provide that an apprenticeship agreement has no effect unless registered by the director. Effectively, this creates the requirement that the apprenticeship agreement be registered and in writing. Our decision is largely governed by the wording of the Policy which states “an apprentice as defined under the terms and conditions ” of the AQTA [ sic ].

Had the wording of the Policy been limited to the definition of apprentice under the AQTA [ sic ], our reasoning may have been different. [emphasis added] THE JUDGE’S REASONS 18 The respondent applied for judicial review on the basis that the Decision was unreasonable, and alternatively, for a declaration that the Policy was ultra vires . The judge did not rule on the unreasonableness argument, which is the subject of the cross appeal by the respondent, but did decide in his favour on the ultra vires argument. 19 The judge said that the Policy (at para. 13):

… (… [E]ffectively precludes the Board and the Commission from considering any worker who is actually apprenticing in a trade butnot yet registered under the ATQ Act from entitlement to any adjustment for wage loss benefits pursuant to s. 45(3) of the Act) …. …. 20 He then said that (ibid.): …. … [T]he central issue in this proceeding is whether the policy of the directors, which limits the rights of a worker who may beapprenticing (actually working as an apprentice) in a trade to those apprentices who are registered under the ATQ Act, is ultra vires theAct. 21 The judge referred to Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, and said the parties were agreed(except on the vires issue) that the standard of review was reasonableness. 22 The judge noted the Board’s acknowledgment that if the Policy was ultra vires, the Decision could not stand. He referredto this court’s decision in Lexogest Inc. et al. v. Manitoba (Attorney General) et al. (1993), (MB CA), 85 Man.R. (2d)8, that the Manitoba Health Services Commission exceeded its authority in passing a regulation placing conditions on certain services.

He said that the definition of “apprentice” in the Act is not necessarily the same as the definition in the ATQA, and that (at para. 17): …. If the Legislature intended to limit the discretion of the Board in a s. 45(3) application to only those apprentices who are“registered”, one would expect it to have so stated. 23 He noted that (at para. 18): ….

The definition of “worker” in s. 1(1) of the Act, “includes ... a person, whether or not under the age of 18 years, who enters into orworks under a contract of service or apprenticeship, written or oral, expressed or implied, whether by way of manual labour orotherwise”. (Emphasis supplied) The Board submits that the term “apprenticeship”, as contained in this definition of a “worker”, isintended to be very broad so as to provide a statutory right to compensation to all persons who come within the definition of “worker”. …. 24 The judge then said (at paras. 19-20): I agree that the powers of the directors, as provided in the Act (s. 51.1 and s. 60.8(6)) are very broad.

I respectfully disagree with theBoard’s position to the effect that the directors can validly enact a policy whereby a person who may, on appropriate evidence before theBoard or the Commission, be determined to be apprenticing in a trade (whether the agreement between the worker and the employer iswritten or oral, expressed or implied, or by way of manual labour or otherwise) is nevertheless precluded from any consideration under s.45(3) of the Act because he or she is not yet “registered”.

This policy, as drafted and applied by the Board and the Commission on theevidence before it in this proceeding, goes farther, in my opinion, than the Legislature contemplated or allowed; it purports to exclude allworkers who have started apprenticing in a trade in one or more of the ways that the Act permits apprenticing (at least for compensationpurposes when an injury occurs) by excluding all apprentices who have not yet registered under the ATQ Act.

It is the Board who mustfairly and justly determine, on the evidence before it, whether or not a person is, firstly, a worker who is entitled to compensation, and, ifso, whether or not that person is a worker who is working under a contract of apprenticeship. In the

preamble to the Act, the Legislature expressly recognizes that the Act is intended to compensate injured workers regardless offault and to provide injured workers with income replacement benefits based upon their loss of earning capacity …. The definition of theterm “worker” in s. 1(1)(

a) of the Act includes “persons working under contracts of apprenticeship, whether they are written, oral,expressed or implied, or whether by way of manual labour or otherwise”. The language (clearly, in my opinion) encompasses personswho are actually doing the work of and being paid as apprentices (at least in a designated trade such as ironworking) even though theymight not yet be registered for purposes of the ATQ Act. …. Here, the applicant was working for the employer, pursuant to the termsof its collective agreement, as a “permit” worker.

The applicant, as was the case with several other employees of this employer workingunder the same collective agreement, had simply not attended to sign the formal written apprenticeship agreement required forregistration under the ATQ Act (within the 30 days contemplated in the collective agreement), although there is evidence that heintended to do so (from the union representative and the documentation tendered).

Most importantly, having regard to the definition of“worker” and the clear wording of the Act which does not limit “apprentices” to those persons who are actually registered under theATQ Act, the evidence before the Board and s. 18(1) of the ATQ Act provide that a worker may obtain a certificate of qualificationfrom the director appointed under the ATQ Act in a designated trade in two different ways:

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i) firstly, by successfully completing apprenticeship training, as that term is defined in the ATQ Act (which would include the necessityof a registered written apprenticeship agreement); or (ii) secondly, by otherwise meeting the standards and requirements established for the trade.

The evidence and submissions before the Board (and the Commission) were to the effect that the worker could become a journeymanironworker by challenging the examinations (part of the “technical training” requirement of the ATQ Act) without necessarily attendingthe technical/schooling portion after accumulating a significantly larger number of hours of practical experience. As the applicant pointsout, there is no requirement in the ATQ Act for registration by any specific date.

Simply put, there is evidence before the Board and theCommission which, absent the application of the director’s policy #44.80.30.30, could reasonably lead to the conclusion that theapplicant was working under, as a minimum, an implied contract of apprenticeship (even if the contract was not written, oral orexpressed). [emphasis added] 25 He found, therefore, that the relevant portion of the Policy was ultra vires. He quashed the Decision and remitted thematter to the Board for reconsideration without regard to any invalid portion of the Policy.

He said it was for the Board to determinewhether the respondent was working under a contract of apprenticeship as referred to in the Act, since (at para. 22): …. … [T]he Board is competent, qualified and authorized by the Legislature to determine who is or is not working “under a contract ofservice or apprenticeship, written or oral, expressed or implied, whether by manual labour or otherwise”, as per s. 1(1)(

a) of the Act. It isfor the Board to determine whether, on the totality of the evidence that it accepts, the applicant was in fact doing the work of anapprentice under a contract which can be oral, expressed or implied and had a bona fide intention to ultimately proceed to achievejourneyman status in one or other of the methods available for so doing. SUBMISSIONS ON APPEAL 26 The Board argued that this court is to determine on a standard of correctness whether the judge applied the appropriatestandard of review to the Decision. It said he failed to consider the standard of review he was to apply.

The Act confers discretion on theBoard and its policies are entitled to deference. 27 Under Dunsmuir, the first question is whether the cases have already determined the standard of review, and the Board saidthat they have. The Board referred to several cases, including two from Manitoba. Glowacki J. held in United Messenger Co-op Ltd. etal. v. Workers’ Compensation Board (Man.) (1994), (MB KB), 96 Man.R. (2d) 17 (Q.B.), that a particular policyabout who was a “worker” would be subject to a patent unreasonableness test in determining if the policy was ultra vires.

The other isthe 1997 decision of this court in Winnipeg (City) v. Workers’ Compensation Board (Man.) et al. (1997), (MB CA),123 Man.R. (2d) 118, where Twaddle J.A. said a policy’s vires would be decided on a standard of patent unreasonableness. Thus, theBoard said the authorities have determined the standard of review to be reasonableness. 28 In any case, the Board argued, even under a standard of review analysis, the same result follows, since there is a strongprivative clause protecting decisions of the Board. 29 The Board argued that if there is an available

interpretation that permits the Policy to be intra vires, the court cannotsubstitute its discretion, and alternatively, the Board argued that its

interpretation of the Act is correct. 30 It said the judge failed to recognize the discretion inherent in s. 45(3) of the Act. The right to have earnings adjusted is notstatutory, but discretionary, and the Board has exercised its discretion by enacting the Policy. There is no inconsistency between the Actand the Policy. 31 The respondent argued that the standard of review in assessing the Policy for consistency with the Act is correctness.

Hesaid that the Policy is inconsistent with the Act and is therefore ultra vires. 32 While the Board had said this is an appeal of a judicial review decision, the respondent disagreed, saying the case is aboutthe Board’s jurisdiction, not its discretion. The significance is in the applicable standard of review, which the respondent argued wascorrectness. The respondent argued that the Board has no discretion to exceed its policy-making jurisdiction.

The respondent said thevires issue is reviewed on correctness while the exercise of policy-making discretion within jurisdiction could give rise to a deferentialstandard. 33 The respondent said it has now been made clear by the Supreme Court of Canada that questions of true jurisdiction arealways assessed on a correctness standard, and there is no standard of review analysis done (United Taxi Drivers’ Fellowship of SouthernAlberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485, and Dunsmuir). He said some of the cases relied on by the Board are old

law and bad law. 34 As to the Board’s discretion, the respondent argued that it does not extend to deciding who qualifies as an apprentice, sincethe Act already does that. 35 The respondent relied on this court’s decision of Winnipeg (City) v. Workers’ Compensation Board (Man.) (1988), (MB CA), 51 Man.R. (2d) 44, which said the Board could not enact regulations which were other than administrative orprocedural in nature. 36 On the cross appeal, the respondent appealed the judge’s failure to find the Decision unreasonable. He argued that theDecision is “not defensible” in its

interpretation of the facts and in its application of the law and this led to an unreasonable outcome.

Deference will not preserve the Decision, he said, and the judge erred in failing to so conclude. 37 The Board pointed out in its factum on the cross appeal that if it wins the main appeal, and the Policy is therefore not ultravires, the cross appeal puts squarely before the court the question of whether the Decision was unreasonable. 38 The Board said that “it is difficult to determine” whether the judge made a decision on unreasonableness, pointing to somewording in the judgment which it suggested supports the view that he found the Decision not to be unreasonable. 39 The Board agreed that the standard of review applicable to the judge’s assessment of the Decision is reasonableness.

TheBoard advanced several reasons why the Decision is reasonable. ANALYSIS AND DECISION 40 There are two main questions requiring determination. The first, answered by the judge in the affirmative, is whether thePolicy is ultra vires the Board. The second, not clearly answered by the judge, is whether the Decision was reasonable. 1. Is the Policy ultra vires the Board? (

a) Standard of Review 41 In his decision, the judge indicated that the parties were in agreement that the standard of review is reasonableness “exceptperhaps as regards the issue of whether policy #44.80.30.30 … is ultra vires the Act” (at para. 7). The judge also indicated that it wasthe respondent’s position that the Policy was void as being ultra vires, and he then stated (at para. 8): …. On this somewhat narrow issue of statutory

interpretation, the standard of review is “correctness”. …. 42 It is not clear whether that last statement was simply a reiteration of the respondent’s position, or whether the judge wasstating his own conclusion. He did not conduct a standard of review analysis with respect to his consideration of the vires of the Policy.

His reasons suggest that he applied a correctness standard on this issue. 43 On the vires question, we are dealing with a matter regarding which the Commission made no express decision, since itunderstandably proceeded on the premise that the Policy is intra vires, and the Decision rests on the Policy being intra vires. 44 Our task begins with the determination of whether the judge had chosen and applied the right standard of review (Dr. Q v.College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at para. 43).

The question of the rightstandard to select and apply is one of law and, therefore, the judge had to have been correct when selecting the standard of review to beapplied. Since it is unclear what standard he applied to the vires question, we must determine what standard of review he should haveapplied. This we do by applying existing jurisprudence or by conducting a standard of review analysis (Dunsmuir at paras. 29, 65). Wethen apply the applicable standard to our consideration of the question. (

i) The Nature of the Question – Jurisdictional or Not? 45 The Supreme Court recently set out a helpful

summary of the principles applicable to the present task in Smith v. AlliancePipeline Ltd., 2011 SCC 7, per Fish J. for the majority of eight judges (Deschamps J. issued a concurring decision) (at para. 26): Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctnessgoverns: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole andoutside the adjudicator’s specialized area of expertise’” (Dunsmuir, at para. 60 citing Toronto (City) v.

C.U.P.E., Local 79, 2003 SCC 63,[2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a“true question of jurisdiction or vires” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where thequestion: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, withwhich it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwinedlegal and factual issues (paras. 51 and 53-54). 46 Thus, if we are considering a true question of jurisdiction or vires, then, as the respondent said, the standard is correctness. “Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires” (Dunsmuir at para. 59).

47 The respondent’s position is that the essence of the issue was whether the Policy was consistent with the terms of theempowering statute, the Act.

He said that “[t]his case is about the WCB’s jurisdiction to enact the Policy it did,” and since the Boardlacked jurisdiction, in his view, to enact the Policy, it could not stand. 48 The alternative, in this case, to a true question of jurisdiction or vires would be, as the Board argued, that the question of theBoard’s authority raises a question of law, which would attract either a correctness or a reasonableness standard. 49 The Board argued that this was not a jurisdictional question at all, and that the jurisprudence, and a standard of reviewanalysis, would show that the vires question should be determined by a court on a reasonableness standard.

Such a standard wouldafford the Board latitude in deciding to enact, and in framing, a policy dealing with s. 45(3). 50 Over recent years, administrative law has steadily moved towards a policy of increased curial deference with respect to thedecisions of specialized administrative decision-makers, commencing with the decision of the Supreme Court of Canada in CanadianUnion of Public Employees, Local 963 v.

New Brunswick Liquor Corporation, (SCC), [1979] 2 S.C.R. 227 (CUPE).Dickson J. (as he then was) said that courts should show more deference to the decisions of specialized tribunals acting withinjurisdiction under the protection of a privative clause. This included showing curial deference to tribunal decisions which required theinterpretation of its enabling legislation.

He cautioned courts not “to brand as jurisdictional, and therefore subject to broader curialreview, that which may be doubtfully so” (at p. 233). 51 In elaborating on this approach, Dickson J. said “[t]he general subject-matter of the dispute between the partiesunquestionably fell within the confines of the Act” (at p. 234); “[t]he

interpretation of s. 102(3) would seem to lie logically at the heart ofthe specialized jurisdiction confided to the Board” (at p. 236); and “the Board decided a matter which was plainly confided to it, for italone to decide within its jurisdiction” (at p. 237). In these circumstances, the question was not a “true” question of jurisdiction. 52 This approach has been confirmed frequently since Dickson J. wrote; see, e.g., U.E.S., local 298 v.

Bibeault, (SCC), [1988] 2 S.C.R. 1048, where Beetz J. said that “the only question which should be asked [is], ‘Did the legislator intend thequestion to be within the jurisdiction conferred on the tribunal?’” (at p. 1087). He said that what is now known as the standard of reviewanalysis (see Dunsmuir at para. 63), should be utilized to determine whether or not a question is truly jurisdictional. Using thisframework of analysis for this purpose was also confirmed by the Supreme Court in Pushpanathan v. Canada (Minister of Citizenshipand Immigration), (SCC), [1998] 1 S.C.R. 982, and Pasiechnyk v.

Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890. 53 More recently, in Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, theSupreme Court was considering the power of the Canadian Transportation Agency to make an order requiring VIA Rail to make changesto passenger railcars to render them wheelchair accessible. VIA argued that the Agency lacked jurisdiction to inquire into a complaintwhich was not based upon actual travel experience.

Abella J., for the majority, analyzed the legislation to determine that the Agency’sdecision was not one which involved its jurisdiction, but rather, involved a determination which fell squarely within its statutory mandateand was therefore subject to a standard of review of reasonableness. 54 Abella J. championed a narrow view of jurisdiction, consistent with the policy of judicial respect for administrativedecisions originally outlined in CUPE.

She said (at paras. 89-90, 92): …. … [Courts] should ... refrain from overlooking the expertise a tribunal may bring to the exercise of interpreting its enablinglegislation and defining the scope of its statutory authority.

Section 172 is part of the Agency’s enabling legislation, the authorizing framework assigning responsibility to the Agency, and in whichit is expected to apply its expertise. It is a clear example of a provision that reflects “a conscious and clearly worded decision by thelegislature to use a subjective or open-ended grant of power [which] has the effect of widening the delegate’s jurisdiction and thereforenarrowing the ambit of judicial review of the legality of its actions”: D. P. Jones and A. S. de Villars, Principles of Administrative Law(4th ed. [Toronto: Thomson Canada Ltd.] 2004), at p. 140.

A tribunal with the power to decide questions of law is a tribunal with the power to decide questions involving the statutoryinterpretation of its enabling legislation …. …. [emphasis added] 55 Abella J. said (at para. 99): The allegedly jurisdictional determination the Agency was being asked to make, like the “undueness” inquiry, falls squarely within itsstatutory mandate. It did not involve answering a legal question beyond its expertise, but rather requires the Agency to apply itsexpertise to the legal issue assigned to it by statute.

The Agency, and not a reviewing court, is best placed to determine whether theAgency may exercise its discretion to make a regulation for the purpose of eliminating an undue obstacle to the mobility of persons with

disabilities – a determination on which the Agency’s jurisdiction to entertain applications depends. 56 In Dunsmuir , Bastarache and LeBel JJ., for the majority, explained the importance of the CUPE decision, and why it is important not to mislabel a non-jurisdictional issue as a question of jurisdiction (at para. 35): …. In [ CUPE ], Dickson J. introduced the idea that, depending on the legal and administrative contexts, a specialized administrative tribunal with particular expertise, which has been given the protection of a privative clause, if acting within its jurisdiction, could provide an

interpretation of its enabling legislation that would be allowed to stand unless “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review” (p. 237). Prior to CUPE , judicial review followed the “preliminary question doctrine”, which inquired into whether a tribunal had erred in determining the scope of its jurisdiction.

By simply branding an issue as “jurisdictional”, courts could replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the matter lie in the hands of the administrative tribunal. CUPE marked a significant turning point in the approach of courts to judicial review, most notably in Dickson J.’s warning that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233).

Dickson J.’s policy of judicial respect for administrative decision making marked the beginning of the modern era of Canadian administrative law. 57 They then discussed “true” questions of jurisdiction or vires , explaining that such questions are inherently narrow in nature (at para. 59): Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires . We mention true questions of vires to distance ourselves from the extended

definitions adopted before CUPE . …. “ Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires …. …. [emphasis added] 58 See also Nolan v. Kerry (Canada) Inc ., 2009 SCC 39 , [2009] 2 S.C.R. 678 , which holds that, where a tribunal is interpreting its home statute, the courts should generally defer to the tribunal’s

interpretation, and should only exceptionally apply a correctness standard (and view the matter as jurisdictional) if the

interpretation of the statute raises a broad question regarding the tribunal’s authority to inquire into the matter. Where it is relatively clear that the administrative body has the broad authority to inquire into the matter, the issue will not properly be characterized as a jurisdictional question. 59 I would adopt the words of MacFarland J.A. in the Ontario Court of Appeal decision of Toronto Hydro-Electric System Ltd. v. Ontario (Energy Board) , 2010 ONCA 284 , 99 O.R. (3d) 481 (at para. 24 ): ….

If the decision of a specialized tribunal aims to achieve a valid statutory purpose, and the enabling statute includes a broad grant of open-ended power to achieve that purpose, the matter should be considered within the jurisdiction of the tribunal. …. 60 This jurisprudence must be considered in light of the following provisions of the Act : General jurisdiction 60(1) The board has exclusive jurisdiction to examine into, hear, and determine, all matters and questions arising under this Part and as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the board; and the action or decision of the board thereon is final and conclusive and is not open to question or review in any court; and no proceedings by or before the board shall be restrained by injunction, prohibition, or other process or proceeding in any court, or are removable by certiorari or otherwise into any court.

Particular jurisdiction 60(2) Without hereby limiting the generality of subsection (1), it is declared that the exclusive jurisdiction of the board extends to determining . . . . .

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e) the loss of earning capacity resulting from an accident; (

f) the amount of average earnings and net average earnings; . . . . . (

j) whether or not any worker in any industry is within the scope of this Part and entitled to compensation thereunder; . . . . . 61 These sections were the subject of the following observations by this court ( per Twaddle J.A.) in Winnipeg (City) (see para. 27 above) (at para. 18): … [A] judicial policy decision is made in the context of an actual case, but courts are not charged with administrative as well as judicial functions in the management of a statutory scheme for the relief of persons injured in defined circumstances. In my view, the broad language of s. 60(1) and s. 60(2)(

b) confers on the Board power not only to decide individual claims under the Act , but also to determine as a matter of policy the criteria to be applied in determining whether the defined circumstances have been met. [emphasis added] 62 The Act contains the basic legislative framework under which the Board operates. The general history and purpose of workers compensation schemes were discussed in Pasiechnyk .

The historic principles of the collective liability of employers, no-fault compensation for injured workers, income replacement benefits based on loss of earning capacity, employer immunity from civil suits and the independent administration of the scheme by an arm’s length agency of government are all recognized and maintained in the

preamble to the Act . The Act reflects the principles behind the “historic trade-off” discussed in Pasiechnyk . 63 The Board is given the general, exclusive jurisdiction to “examine into, hear, and determine, all matters and questions arising” under

Part I of the Act and “as to any matter or thing in respect of which any power, authority, or discretion, is conferred upon the board” (s. 60(1)). The Board is, of course, also expressly given the powers set out in s. 45(3) regarding wage adjustments for apprentices (and similar powers in s. 45(4) regarding workers whose age is a relevant factor). 64 The expertise of the Board is recognized throughout the Act .

It has been given the task of creating and maintaining an adequate accident fund, inquiring into and determining matters such as the entitlement to and amount of compensation, and generally administering the compensation scheme through the creation of policy and plans for the future of the system. The Board has special expertise in administering a compensation system in which sufficient funds must be available from the accident fund to properly compensate workers for the loss of future earnings due to accidental workplace injuries.

The expertise of workers’ compensation boards in general was recognized in Pasiechnyk (at para. 38 ). 65 The respondent said that the Policy adopted a definition of the word “apprentice” which was incompatible with the Act and that therefore “[t]his case is about the WCB’s jurisdiction to enact the Policy it did.” However, as we have seen, the Supreme Court has indicated that questions of jurisdiction are to be defined narrowly, in the sense of whether or not the tribunal had the authority to enter upon the inquiry ( CUPE , Dunsmuir and Nolan ).

It is only where there is a broad question regarding the tribunal’s authority to inquire into the matter that the matter will be considered a jurisdictional question ( Nolan ). 66 Did the Board have jurisdiction to inquire into the matter at all; i.e., to enact the Policy? In my opinion, based on the jurisprudence and statutory provisions discussed above, it is clear that the Board did have that jurisdiction, and acted within its authority in enacting a policy dealing with s. 45(3) .

This would mean that what we are considering is not a “true” question of jurisdiction or vires , and thus not automatically subject to the application of a correctness standard of review. (ii) Defining “apprentice” in the Policy 67 The respondent argued that even if the Board could enact a policy dealing with s. 45(3) , it did not have the authority to pass a policy which defined the word “apprentice.” 68 The jurisprudence from the Supreme Court makes clear that courts should refrain from overlooking the expertise which a tribunal may bring to the

interpretation of its enabling legislation ( VIA Rail at paras. 89, 92) and that the courts should usually defer when the tribunal is interpreting its own statute ( Nolan ). The Act does not define the word “apprentice.” However, since it gives the

Board a wide and exclusive jurisdiction to “examine into, hear, and determine, all matters and questions arising under this Part,” it is myopinion that the Board has the authority to determine the question of if and how the word “apprentice” is to be defined for purpose ofs. 45(3). 69 The Board, through its Board of Directors, has the power to pass binding policy, including policy respecting compensation(s. 51.1). The discretion given by the Legislature to the Board to increase an apprentice’s wage-loss benefits, pursuant to s. 45(3), clearlyrelates to compensation.

It is within the jurisdiction of the Board to enact a policy regarding the payment of increased wage-loss benefits(compensation) to apprentices under s. 45(3). 70 The modern rule for the

interpretation of any legislation demands a contextual approach: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21. With respect to the

interpretation of a statutory grant of authority to anadministrative body, this means that a court must review the statute in its overall context in order to identify not only what powers areexpressly conferred upon the administrative body, but also those that are impliedly conferred. As stated by Bastarache J., for themajority, in ATCO Gas and Pipelines Ltd. v.

Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 (at para. 38): But more specifically in the area of administrative law, tribunals and boards obtain their jurisdiction over matters from two sources: (1)express grants of jurisdiction under various statutes (explicit powers); and (2) the common law, by application of the doctrine ofjurisdiction by necessary implication (implicit powers) (see also D. M. Brown, Energy Regulation in Ontario (loose-leaf ed.) [(Aurora: Canada Law Book, 2001)], at p. 2-15). 71 See also Bell Canada v.

Canada (Canadian Radio-Television and Telecommunications Commission), (SCC), [1989] 1 S.C.R. 1722 (at p. 1756): …. The powers of any administrative tribunal must of course be stated in its enabling statute but they may also exist by necessaryimplication from the wording of the act, its structure and its purpose. Although courts must refrain from unduly broadening the powers ofsuch regulatory authorities through judicial law-making, they must also avoid sterilizing these powers through overly technicalinterpretations of enabling statutes. …. 72 See also s. 32(1) of The

Interpretation Act, C.C.S.M., c. I80: “The power to do a thing or to require or enforce the doing ofa thing includes all necessary incidental powers.” 73 Thus, a court may imply into an express grant of authority (here, the power to adjust wage-loss benefits for apprentices) allpowers which are necessarily incidental or practically necessary to accomplish the intentions of the Legislature. 74 Does the power to enact a policy regarding the payment of increased compensation to apprentices under s. 45(3) necessarilymean that the Board has also been given the power to define the word “apprentice” in that policy? In my view, it does. 75 I reach this conclusion on the basis that: (

i) the Legislature conferred upon the Board not only the power, but the duty topass policy respecting compensation, along with the discretion to increase the wage-loss benefits to injured apprentices; (ii) there is nodefinition of the word “apprentice” in the Act; and (iii) there was a “conscious and clearly-worded decision by the legislature to use asubjective or open-ended grant of power” (MacFarland J.A. in Toronto Hydro-Electric at para. 23, quoting David Phillip Jones, Q.C. &Anne S. de Villars, Q.C., Principles of Administrative Law, 5th ed. (Toronto: Thomson Reuters Canada Limited, 2009) at 146) to theBoard to determine all matters or questions arising under the Act.

These factors clearly indicate that the Legislature also gave the Boardthe incidental powers to specify, in the Policy, who would be an apprentice for the purpose of receiving the increased compensationreferred to in s. 45(3). 76 This conclusion is consistent with the broader role of the Board in having to raise and maintain an adequate accident fund,and its responsibility for planning the future of the compensation system.

If the Board was not able to easily and consistently identifywho was considered an apprentice for the purpose of s. 45(3), a task which would be facilitated by setting out a definition of the term inpolicy, it would have more difficulty estimating the amount of funds to set aside. 77 Giving the Board the power to define the word “apprentice” in a policy, for the purpose of determining who will be eligibleto receive increased benefits, also supports the general purpose of the Act, as it means that eligibility for increased benefits under s. 45(3)can be determined in a quick and consistent manner.

This case, which challenges the validity of the Board’s definition of the word“apprentice,” gives some idea of the type of uncertainty and expense which could occur in many cases, in the absence of a definition ofthe word “apprentice” in s. 45(3). Therefore, it is entirely consistent with the overall purpose of the Act that the Board would have thepower to define the word “apprentice” in a policy regarding compensation for apprentices. 78 See also the decision of the Newfoundland and Labrador Court of Appeal in Mount Pearl (City) v.

Workplace Health,Safety and Compensation Review Division (Nfld. and Lab.) et al., 2008 NLCA 69, 282 Nfld. & P.E.I.R. 14. Mercer J.A., for the court,noted that a decision of the Review Division – being a decision with respect to a non-jurisdictional issue – would be subject to areasonableness standard of review (at para. 26). He also stated (at para. 27): Furthermore, in view of my conclusion that there was a wrongful declining of jurisdiction, I do not consider it appropriate to determine,

as did the applications judge, whether the employee consent stipulated by Policy RE-03 is inconsistent with the Act. The concept ofdeference which underlies the standard of reasonableness requires respect for the legislature’s choice that

interpretation of the Act andpolicies thereunder are properly the province of the Commission subject to oversight by the Review Division. As explained inDunsmuir: [48] …. … [D]eference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference “is rooted in

part in a respect for governmental decisions to create administrative bodies with delegated power”[Canada (Attorney General) v.

Mossop, (SCC), [1993] 1 S.C.R. 554, at p. 596, L’Heureux-Dubé J., dissenting]. …. [underlining in original] [49] Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to thedeterminations of decision makers. .… … [D]eference requires respect for the legislative choices to leave some matters in the hands ofadministrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for thedifferent roles of the courts and administrative bodies within the Canadian constitutional system. [underlining in original] [emphasis added] 79 Mount Pearl illustrates how a court should deal with the issue of whether an administrative body’s policies are consistentwith its constituent legislation.

Where the administrative body has broad expertise and is given broad powers under its constituentlegislation, as in the case of this Board, then the question of whether its policies are consistent with its underlying legislation is a matterwithin its jurisdiction or authority. 80 Thus, the Legislature gave the Board the jurisdiction to enact a policy regarding s. 45(3), and the jurisdiction in such policyto define the word “apprentice” for the purpose of s. 45(3).

This would mean that it is wholly within the Board’s jurisdiction andspecialized expertise to determine how the word “apprentice” will be defined for the purpose of s. 45(3). (iii) Conclusion on Standard of Review on Vires 81 What standard, then, should be applied to our consideration of this issue? I reiterate the observation by Twaddle J.A. inWinnipeg (City) (at para. 18): …. … [T]he broad language of s. 60(1) and s. 60(2)(

b) confers on the Board power not only to decide individual claims under the Act,but also to determine as a matter of policy the criteria to be applied in determining whether the defined circumstances have been met. 82 All the Board’s actions and decisions taken under

Part I of the Act are protected by a strong privative clause, and one of thefunctions of the Board is to set and approve policies, including policies respecting compensation. The Board has the exclusivejurisdiction to determine the loss of earning capacity resulting from an accident.

Thus, the Policy relating to compensation and how theloss of earning capacity of apprentices is to be determined are subject to the privative clause. 83 Moreover, the Legislature has given the Board the ability to supervise the application of its own policies, and thissupervisory function shows that the Legislature intended that the Board’s policies would be subject to deference from the courts.

Thequestion of the validity of the Policy is at the heart of the specialized jurisdiction of the Board, which has particular experience andexpertise with respect to determining policy respecting workers’ compensation. 84 Moreover, both the legislative purpose, discussed above, and the nature of this legal question, which has a particularlynarrow focus unrelated to the legal system as a whole, clearly support a deferential standard of review. 85 In my opinion, the foregoing analysis leads to the conclusion that a reasonableness standard applies to all aspects of thequestion, including the issue of whether the Policy is inconsistent with the Act. (

b) Is the Policy Inconsistent with the Act? 86 It is clear that if the Policy is inconsistent with the Act, it cannot be a valid policy.

See Mount Pearl at para. 21; White v.Workers’ Compensation Board Appeals Commission (Alta.), 2006 ABQB 359, 400 A.R. 183 at para. 18; and Skyline Roofing Ltd. v.Workers’ Compensation Board (Alta.) et al., 2001 ABQB 624, 292 A.R. 86 at para. 76. 87 The respondent’s argument requires a consideration of the Act, the Policy and the ATQA. 88 Section 45(3) of the Act gives the Board the discretion to increase the wage-loss benefits of “an apprentice in a trade oroccupation,” but the Act contains no definition of the term “apprentice in a trade or occupation.” The Policy states, in part:

1(a)(i) “Apprentice” in a trade means an apprentice as defined under the terms and conditions in The Apprenticeship & TradesQualifications Act (i.e., unless the person is declared an apprentice in a designated trade under The Apprenticeship & TradesQualifications Act, the person is not an apprentice for the purposes of this policy). 89 The Policy does not state that an apprentice must be registered under the ATQA.

Rather, it indicates that an apprentice willbe defined according to the terms and conditions in the ATQA, and that unless the person is declared an apprentice in a designated tradeunder the ATQA, the person is not an apprentice under the Policy. The Policy is not as clear as would be desirable. In particular, it is notclear exactly what is meant by “defined under the terms and conditions” in the ATQA, or what is meant by “declared an apprentice in adesignated trade.” As in CUPE, several possible

interpretations come to mind. 90 Firstly, as argued by the respondent, the reference in the Policy to “defined” could mean that the definition of “apprentice”and other related terms and conditions in the definition

section of the ATQA must be adopted. But that definition, in conjunction withrelated defined terms, makes no mention of any requirement for registration. Thus, it is arguable that “an apprentice as defined under theterms and conditions in [the ATQA]” simply means that the definition of “apprentice” in conjunction with other definitional terms in thedefinition

section of the ATQA must be adopted. This would mean that no registration would be required. 91 Alternatively, as argued by the Board (and accepted by the Commission), the reference in the Policy to the “terms andconditions” under the ATQA could mean that other provisions in the ATQA, beyond the

definitions, must be considered whendetermining the definition of “apprentice.” The combined effect of several sections in the ATQA (see para. 8 above) requires apprenticesunder the ATQA to have a registered apprenticeship agreement. 92 A further possible

interpretation exists. As noted by the respondent, the parenthetic part of the Policy, which explains that aperson will not be considered an apprentice under the Policy unless “the person is declared an apprentice in a designated trade,” isambiguous. There is no provision within the ATQA which indicates that a person can be “declared” an apprentice in a designated trade. However, s. 15 of the ATQA permits the designation of trades by regulation, and there are ATQA regulations which stipulate that certaintrades are “designated trades” under the ATQA. For example, s. 2 of the Trade of Ironworker Regulation, Man.

Reg. 150/2000, statesthat “[t]he trade of ironworker is a designated trade.” Therefore, considering the explanatory, parenthetic phrase in the Policy, thereference to “terms and conditions in [the ATQA]” could simply be referring to the provisions and regulations in the ATQA which requirean ATQA apprentice to be an apprentice within a designated trade. 93 If the Policy is interpreted to mean that an apprentice has to be an apprentice within a designated trade, then the Policywould leave open to

interpretation the issue of whether or not an apprentice needs to be registered. If the Policy is read in this manner, itwould not purport to direct whether the apprentice has to be registered or not, but would leave that issue to be decided in an individualcase by a decision-maker. 94 On this analysis there are three possible

interpretations of the Policy; one which would require registration of an apprentice,one which would not require registration, and one which would require a decision-maker to decide this issue on a case-by-case basis. 95 When a court interprets subordinate legislation (such as the Policy) to determine whether or not it is ultra vires, it will striveto interpret the subordinate legislation so as to avoid conflict with the empowering statute. In R. v. Greenbaum, (SCC),[1993] 1 S.C.R. 674, Iacobucci J., for the court, stated (at p. 689): Therefore, municipal by-laws are to be read to fit within the parameters of the empowering provincial statute where the by-laws aresusceptible to more than one

interpretation. …. 96 In Friends of the Oldman River Society v. Canada (Minister of Transport), (SCC), [1992] 1 S.C.R. 3, LaForest J. stated (at p. 38): …. Just as subordinate legislation cannot conflict with its parent legislation … so too it cannot conflict with other Acts of Parliament …unless a statute so authorizes …. Ordinarily, then,

an Act of Parliament must prevail over inconsistent or conflicting subordinatelegislation. However, as a matter of construction a court will, where possible, prefer an

interpretation that permits reconciliation of thetwo. …. [emphasis added] 97 Thus, it is only if the Policy (as interpreted by the Board and the Commission) and the Act are irreconcilable that the Policycould be determined to be inconsistent with the Act. 98 Given the three possible

interpretations of the Policy outlined above, I could not conclude that the Policy is inconsistentwith the Act, unless the

interpretation selected by the Board and the Commission is inconsistent with the Act. The Policy could only beconsidered inconsistent with the Act if the Policy’s reliance upon the ATQA for a definition of “apprentice” is inconsistent with the Act.

99 In the absence of a definition of “apprentice” in the Act , the Board has power to specify, in the Policy, who will be considered an apprentice for the purpose of receiving the increased compensation referred to in s. 45(3). In light of its general expertise in the workers’ compensation field, the Board will be given “considerable latitude in interpreting the provisions of the [ Act ] for the purpose of establishing policy” ( per Verville J. in Osborn v.

Workers’ Compensation Board Appeals Commission (Alta.) , 2009 ABQB 661 , 480 A.R. 249 at para. 48 ). 100 Although the definition of “worker” in the Act refers to a written or oral, expressed or implied, contract of apprenticeship, it would clearly be reasonable for the Board to conclude that this does not provide a definition of “apprentice.” Furthermore, as the ATQA was the primary statute in Manitoba dealing with apprentices, it is also reasonable for the Board to have relied upon that statute, with which it is familiar, for a definition.

I note that s. 7(2) of the Act specifically referred to the ATQA (and now refers to its replacement statute) in relation to apprentices attending instructional courses. In my view, the Board may reasonably rely upon the ATQA to provide a definition of “apprentice” for the purposes of the Policy. (

c) Conclusion on Vires of the Policy 101 In my view, the Policy is not inconsistent with the Act . The Policy’s reliance on the ATQA for a definition of “apprentice” cannot be said to be inconsistent with a reasonable

interpretation of the Act . Although the Policy is somewhat ambiguous, it is nevertheless susceptible of

interpretation, and is a reasonable policy, within the jurisdiction of the Board to enact. Thus, my conclusion is that, with respect, the judge erred in finding the Policy ultra vires the Board. I therefore turn to a consideration of whether the Decision was reasonable. 2. The Commission’s Decision (

a) Standard of Review 102 The judge did not review the substance of the Decision, but it was agreed before him, as it was before us, that the applicable standard of review would be reasonableness. The respondent acknowledged in his factum that “a high level of deference has generally been given to the decisions of the Appeal Commission.” I agree and, in light of previous decisions of this court (see Ringer v. Workers’ Compensation Board (Man.) et al. , 2005 MBCA 37 , 192 Man.R. (2d) 201; Slawik v. Workers’ Compensation Board ( Man. ) , 2006 MBCA 55 , 205 Man.R. (2d) 124; and Poulin v.

Workers’ Compensation Board ( Man. ) et al. , 2003 MBCA 60 , 173 Man.R. (2d) 219), do not find it necessary to undertake a detailed standard of review analysis. 103 I will note, however, that such an analysis would show that decisions of the Commission are protected by the same, full privative clause as those of the Board (see ss. 60(1) , 60.3(7) , 60.8(1) (

a) and 60.8(2) , of the Act ); the purpose and role of the Commission is to make final determinations regarding who will receive compensation under the Act , including who will receive increased wage-loss benefits under s. 45(3) ; the Commission has considerable expertise in dealing with all aspects of the workers’ compensation regime, including expertise in the purpose, goals and policy considerations of the regime; and the main question before the Commission involved the

interpretation of a Board policy, and the

interpretation of its constituent statute. All this, of course, indicates a reasonableness standard. 104 There are two facets to a reasonableness standard. See Dunsmuir at para. 47 , and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 at para. 63 , and the judgment of Steel J.A. in Guinn v. Manitoba , 2009 MBCA 82 , 245 Man.R. (2d) 57.

Steel J.A. concluded that the jurisprudence from the Supreme Court of Canada meant that (at para. 30): … [S]o long as the explanation for the Board’s decision was intelligible and justifiable and the decision itself “falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law,” the court must defer to the outcome chosen by the tribunal. …. 105 The two components relate to process and to outcome.

The respondent stated that the Commission “made significant errors in its process of reasoning, leading to an unreasonable outcome,” but his argument was entirely directed to the outcome. There was no substantive argument advanced here by the respondent that the Commission’s reasons lack the necessary elements of “justification, transparency and intelligibility” ( Dunsmuir at para. 47 ).

In fact, the Decision addressed the main arguments which had been raised, and the path of the Commission’s reasoning is sufficiently illuminated by the articulated reasons to permit meaningful appellate review. 106 The real objections raised are as to outcome, and as to the alleged unreasonableness of the sub-decisions made by the Commission, which in the aggregate make up its Decision.

The respondent says that the Commission unreasonably interpreted the Policy in several respects, that the Decision was unreasonable because it was based on a misinterpretation of the evidence, and that the Commission unreasonably ignored the statutory requirement to base its Decision on the real merits and justice of the case. Each of these arguments will be considered in turn. (

b) Did the Commission Unreasonably Interpret the Policy? 107 The respondent argued that the Commission interpreted the Policy “in a very narrow and technical manner” in finding that a registered apprenticeship agreement (under the ATQA ) was required before it could exercise its discretion under s. 45(3) . He said that this

interpretation “ignored the requirement to consider the ‘definition’ of an apprentice under the ATQA ,” failed to consider the purpose of the

section and failed to give appropriate weight to

definitions in the Act . 108 I will say at the outset of this part of this decision that I agree with the Board that, even if the Decision interpreted the Policy narrowly and technically, that does not necessarily equate to an unreasonable

interpretation. As explained, the Commission has considerable scope in how it interprets the Act and the Policy, and deference is owed by this court to its

interpretation.

109 The Commission adopted an

interpretation of the Policy that was clearly tenable. In my opinion, it was open to the Commission, and thus not unreasonable, to conclude that the combined effect of the ATQA and the Policy meant that, to be eligible for consideration under s. 45(3) , a worker had to have a registered apprenticeship agreement. 110 The respondent relied on Ontario jurisprudence where the tribunal, which is the counterpart to the Commission, held that failing to register did not disqualify a worker from consideration as an apprentice.

It appears to be accepted in Ontario that a registered agreement is not a prerequisite to adjustment of the earnings base. 111 Exemplifying the Ontario approach is the following (from Decision No. 2331/05, 2006 ONWSIAT 525 ) (at paras. 41-42): … [E]stablished Tribunal jurisprudence indicates that a worker’s failure to register with the government as an apprentice and/or file a contract of apprenticeship with the government is not a bar to the worker being considered an apprentice for the purpose of entitlement under the WSIA [ S.O. 1997, c. 16 ].

In this regard, we note that the Vice-Chair in Tribunal Decision No. 76/05 considered the issue and stated: In my view, it has already been well established at the Tribunal that, to determine whether an individual is or is not an apprentice and entitled to the journeyman’s rate for the purposes of the WSIA, the formal signing of the contract of apprenticeship is not the determinative factor . Rather, it is more important whether the worker, the employer, and others view the individual as someone performing apprentice duties.

Thus, the question is one of fact and not whether a formal document has been executed on a certain date, either before or after the accident date. ….

Moreover, even if by policy, registration is formally required, keeping in mind the merits and justice of the matter, I consider the uncontroverted facts and evidence regarding the intentions and actions of all parties in this matter. …. .… We find that this appeal should be decided upon the existing facts, and not simply upon a matter of form, namely whether the worker had registered with the government as an apprentice and/or filed a contract of apprenticeship with the government at the time of the injury. …. [emphasis added] 112 In Manitoba, once the Policy is construed as it has been, requiring registration, the Board and the Commission may not have the flexibility that apparently exists in Ontario.

This will be considered when the “merits and justice” issue is discussed. 113 The respondent argued that the ambiguities in the Policy were resolved by the Commission without regard to the real purpose of s. 45(3) . He pointed out the dicta of the Supreme Court in Rizzo & Rizzo Shoes that “benefits-conferring legislation” should be construed in a broad and generous manner (at para. 40). The

section was remedial in nature, he said, and the Commission erred in construing it without regard to its fundamental objective, which was to have compensation properly reflect the earning capacity of a worker who would be, but was not yet, a journeyman. 114 The Commission addressed this issue, albeit indirectly, when it said: We have considered legal counsel’s argument that the

definitions of worker and employer in

section 1 of the Act recognize implied and oral contracts of apprenticeship. The argument is our

interpretation of the Policy should also adapt [ sic ] this wide approach which reflects the real merits and justice of the case. The panel is unable to accept this argument. The

definitions contained in the Act are wide for the purpose of extending coverage to a greater number of individuals. This wide scope is not necessarily appropriate when interpreting the term “apprentice” which provides for special additional benefits for a specific class of workers. In fact, given the restrictive wording contained in subsection 1(

a) of the Policy, we do not think that a wide scope was what the Policy intended. 115 In other words, the Commission construed s. 45(3) as being limited in nature, and intended to provide benefits only if the claimant satisfied the requirements of the Policy as the Commission interpreted it. While this is, clearly, less than the most expansive possible construction of the section, I am bound to say that the Commission is entitled to hold the view that it expressed, and I cannot find that its approach was unreasonable. 116 As to the argument that the Commission failed to give appropriate weight to the

definitions in the Act , I need only say that the Decision reflects a consideration of the statutory provisions that seemed relevant to the Commission, and I can see no error, in relation to this point, sufficient to cause the Decision to be unreasonable. (

c) Did the Commission Unreasonably Interpret the Evidence? 117 The Commission accepted the respondent’s argument that there were three methods of becoming a journeyman ironworker under the ATQA , but concluded that such finding did not assist him. The respondent argues this demonstrates a misinterpretation of the evidence. There was evidence that work experience was “often credited by the apprenticeship branch,” and the respondent says the

Commission ignored this evidence. As well, he says, the Commission ignored evidence from the Union that it considered the respondent’s apprenticeship to have begun prior to the accident, and that it would credit members for prior work experience in relation to the apprenticeship program under the ATQA . 118 The respondent further argued additional misinterpretations of the evidence relating to the Commission’s finding that there was no unwritten agreement between him and the Union.

The Commission misunderstood, he argued, the true role of the Union in relationship to the respondent, which is not based on traditional contract principles. Further, he said the Commission did not consider the significance of the relevant collective agreement. 119 Notwithstanding the forcefulness of these arguments advanced by the respondent, a review of the Decision discloses no material misunderstanding or misinterpretation of the evidence.

Importantly, it is clear that the Commission understood that the respondent intended to work in the trade and subsequently apply to have those hours credited when an apprenticeship agreement was eventually registered. The Decision states: ….

While the worker was aware in general terms that there was a Union and that he would be required to log a certain number of hours and take some schooling, he admits that he did not know much about the schooling requirements . …. [emphasis added] 120 Thus, the Commission was aware of the respondent’s general intention, that his work would be taken into account once he eventually registered an apprenticeship agreement, and that he would be taking schooling as required under the ATQA .

The Decision indicates an awareness that he was not simply working in the trade until he could challenge journeyman status without the need for schooling. 121 The Commission decided that it would be difficult to impute an unwritten apprenticeship agreement in place between the respondent and the Union, and between the respondent and Bergen.

It came to this determination on the basis that the evidence showed that the respondent had minimal discussions with either the Union or Bergen regarding any requirements for apprenticeship, and that, since the Union contract required a registered apprenticeship agreement under the ATQA , it could be implied that neither the Union nor Bergen would have had any intention to enter into an unwritten apprenticeship agreement with him. 122 Rather, on the basis of this evidence, the Commission concluded that the respondent was hired to do ironwork on the shared understanding between all the parties that he would enter into a registered apprenticeship agreement at some later time.

The Commission said: We also note that section 17(4) of the AQTA [ sic ] speaks of granting credits to a “prospective apprentice” for previous training and experience in a designated trade. In our view, the worker in the present case was exactly that: a prospective apprentice.

We are satisfied that all relevant parties had the intention to make the worker an apprentice, but that these steps had not yet been taken. 123 Thus, the Commission concluded that there was not an unwritten apprenticeship agreement between any of the parties; rather, there was an agreement between the parties that the respondent would enter into a registered apprenticeship agreement in the near future.

This was, in my view, a conclusion which was available to it on the evidence, and was not an unreasonable conclusion on the facts. 124 On the basis of the foregoing, I conclude that the Decision is defensible on the facts and the Commission did not unreasonably interpret the evidence. (

d) Did the Commission Ignore the Requirement to Base its Decision on “the Real Merits and Justice of the Case”? 125 The Act states: Legal precedent 60(4) The decisions of the board shall always be given upon the real merits and justice of the case; and it is not bound to follow strict legal precedent. 126 The Commission is, in effect, also subject to that provision ( s. 60.3(7) ). 127 The respondent argued that s. 60(4) was obligatory, and that there could be no merits and justice when the Policy is interpreted so as to arbitrarily exclude from benefits an entire class of workers who, but for the lack of a registered apprenticeship agreement, would be entitled to those benefits.

He argued that s. 45(3) is remedial in nature, intended to remedy “the unfairness inherent in being injured before one has reached one’s earning capacity.” He referred to a 2007 decision of the Commission, Decision

No. 109/2007, where the Commission concluded that an unregistered apprentice was entitled to adjustment. He also relied on Ontario tribunal decisions, one of which was referred to above. 128 The Board said that while s. 60(4) binds the Commission, it is obliged by s. 60.8(6) to follow the Policy. It argued that the 2007 Commission decision was based on different legislation, since the accident there had occurred in 1983, and that it did not deal with the Policy.

The Commission had been aware of that decision, and took pains to distinguish it. 129 This issue was raised by the respondent in both his written and oral submissions to the Commission.

In his written submission, the respondent said to the Commission that: “In the circumstances of this case, the requirement to register an apprenticeship agreement should be ignored.” In her oral summation on this point, counsel for the respondent said: So I hope that the Commission will look at the justice and the merits of this case and make a decision that is based on the facts and the evidence that support our argument that he was an apprentice and that the parties, all parties, the union, the employer and Mr.

Sciberras, viewed him as being an apprentice, treated him as such, he was doing the duties of an apprentice, and find that he was an apprentice under the Workers Compensation Act . And we hope that the Commission will avoid making the decision based on procedural formalities as to whether or not there is a registered apprenticeship agreement. 130 This argument was directly addressed by the Commission, in a paragraph quoted earlier (see para. 114) in another context, but which bears repeating here: We have considered legal counsel’s argument that the

definitions of worker and employer in

section 1 of the Act recognize implied and oral contracts of apprenticeship. The argument is our

interpretation of the Policy should also adapt [ sic ] this wide approach which reflects the real merits and justice of the case. The panel is unable to accept this argument. The

definitions contained in the Act are wide for the purpose of extending coverage to a greater number of individuals. This wide scope is not necessarily appropriate when interpreting the term “apprentice” which provides for special additional benefits for a specific class of workers. In fact, given the restrictive wording contained in subsection 1(

a) of the Policy, we do not think that a wide scope was what the Policy intended. 131 Section 60(4) was not expressly explained by the Commission. It did not, for example, explain what exactly it understood by “merits and justice.” It could be that the purpose of the

section is to free the Board and the Commission from the constraint of following an existing legal precedent that, on the facts of the current case, would yield what, to them, would be an unjust result. The Commission referred to, but did not analyze, the section. 132 It would have been helpful had the Commission expressly explained where, in its view, the merits and justice lay, and why, but I have concluded that it was not bound to do so. The Commission did address its mind to the merits and justice issue.

A careful reading of the relevant paragraph, understood in the context of the entire Decision, discloses the Commission’s perspective sufficiently clearly. On this issue, as with the others discussed above, there is no fatal insufficiency of reasons, or lack of intelligibility, transparency or justification. 133 The Commission determined that the

definitions of “worker” and “employer” contained in s. 1 of the Act were wide for the purpose of extending coverage to the greatest number of individuals, but that this wide scope “is not necessarily appropriate when interpreting the term ‘apprentice’ [in s. 45(3) ] which provides for special additional benefits for a specific class of workers.” The Commission also decided that the restrictive wording in s. 1(

a) of the Policy meant that a wide definition of apprentice was not intended. 134 Although the Commission did not explain why it was “not necessarily appropriate” to use a wide

interpretation of “apprentice” when a wide

interpretation of “worker” was appropriate, the Commission’s reasons do suggest that it considered it to be important to differentiate between determining a worker’s eligibility to receive any benefits at all and determining when a worker would be entitled to special additional benefits. This suggests that the Commission considered that there were valid policy reasons to treat the two classes of “worker” differently. In my view, this was certainly within its expertise and authority to conclude. 135 The Commission’s implicit explanation of why a wide

interpretation of “apprentice” was not appropriate was tenable, and it cannot be said that its reasoning process was deficient, although it could have been more comprehensively articulated. We must not impose too high (nor, of course, too low) a standard on tribunals when they express the reasons for their decisions.

The standard expressed in Dunsmuir is clear, if not always easy to apply (at para. 47) : “… [R]easonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.” The reasoning expressed in the Decision on this issue illustrates what was referred to by Goudge J.A. in Clifford v.

Ontario (Attorney General) , 2009 ONCA 670 , 312 D.L.R. (4th) 70, when he said that (at para. 29): “… [T]he ‘path’ taken by the tribunal to reach its decision must be clear from the reasons read in the context of the proceeding, but it is not necessary that the tribunal describe every landmark along the way.” 136 I will add that, even in cases where there are omissions in the reasons of judges, appellate intervention may not be warranted. See Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 (at para. 39 ):

…. … [T]he failure to discuss a relevant factor in depth, or even at all, is not itself a sufficient basis for an appellate court to reconsiderthe evidence. This was made clear by the recent decision of Van de Perre, [2001 SCC 60, [2001] 2 S.C.R. 1014], where Bastarache J.says, at para. 15: … omissions in the reasons will not necessarily mean that the appellate court has jurisdiction to review the evidence heard at trial. Asstated in Van Mol (Guardian ad Litem of) v.

Ashmore (1999), 1999 BCCA 6 , 168 D.L.R. (4th) 637 (B.C.C.A.), leave to appealrefused [2000] 1 S.C.R. vi, an omission is only a material error if it gives rise to the reasoned belief that the trial judge must haveforgotten, ignored or misconceived the evidence in a way that affected his conclusion. Without this reasoned belief, the appellate courtcannot reconsider the evidence. …. 137 In any particular case there could be a tension between application of a policy and the merits and justice of

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