Warford v. Weir’s Construction Limited, 2012 NLCA 37

Date: 20120613 Docket: 12/19 Citation: Warford v. Weir’s Construction Limited , 2012 NLCA 37 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : ROLAND WARFORD APPELLANT AND : WEIR’S CONSTRUCTION LIMITED FIRST RESPONDENT AND : BILL WEIR AND JAMES WEIR, JR. SECOND RESPONDENTS AND : WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION INTENDED INTERVENOR Coram: Barry J.A.

Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 1997 01T 357 Appeal Heard: June 13, 2012 Judgment Rendered: June 13, 2012 (Orally) Memorandum of Disposition Filed: June 18, 2012 Counsel for the Appellant: Andrew Fitzgerald Counsel for the First and Second Respondent: Jorge Segovia Counsel for the Intended Intervenor: Krista Gillam

MEMORANDUM OF DISPOSITION Barry J.A.: [1] The Commission has applied for leave to intervene on the hearing of the appeal in this matter. The issue on appeal iswhether the Commission has any jurisdiction under s. 46 of the Workplace, Health, Safety and Compensation Act, RSNL 1990, c. W-11,to adjudicate and determine whether an action brought by the Commission pursuant to statutory authority under s. 45(8) and (9) of theAct is prohibited. [2] By s. 45(8) of the Act, the Commission is subrogated to the rights of the worker and also the Commission may maintain anaction in the worker’s name. [3] Rule 7.05(1)(

a) of the Rules of Court provides: Any person may, with leave of the court, intervene in a proceeding and become a party thereto if (

a) that person claims an interest in the subject matter of the proceeding, including any property seized or attached in the proceeding,whether as an incident to the relief claimed, enforcement of the order therein, or otherwise … . . . . [4] I conclude that the Commission has shown itself to have a sufficient interest in the subject matter of the proceedings towarrant granting it leave to intervene. [5] The Commission commenced the present action after Warford accepted compensation from the Commission after he hadbeen injured by a truck falling upon him as he worked on it.

The Commission subsequently decided not to pursue the action (apparentlybecause the employer of Warford, Weir’s Construction, was not covered by liability insurance) but in accordance with its policymemorandum EN-08 consented to Warford selecting a lawyer to conduct the action on his behalf. [6] The Respondents, after a number of judicial reviews and appeals, asked the Commission to make a determination under s. 46of the Act.

This provides: Where an action in respect of an injury is brought against an employer or a worker by a worker or his or her dependent, the Commissionhas jurisdiction upon the application of a party to the action to adjudicate and determine whether the action is prohibited by this Act. [7] The Commission concluded the action is prohibited. After further applications to quash and to stay, ultimately, on March 12,2012, Hall J. granted a stay of proceedings and referred the matter back to the Commission for a determination as to whether the actionis barred.

Warford appealed and the Commission seeks to intervene. [8] An “interest” within Rule 7.05(1)(

a) extends to an interest in the outcome of an appeal when a legal issue to be determined onthe appeal will be binding on future similar litigation to which the applicant will be a party; Newfoundland (Minister. of Govt. Servicesand Lands) v. Drew (2000), (NL SC), 191 Nfld. & P.E.I.R. 82 (NFTD), at paras. 13-17. Here the question at issue iswhether the Commission has the right under s. 46 to determine whether an action commenced by the Commission itself (as opposed to aworker) is prohibited by the Act. The decision will be binding on future similar cases.

Also, it is a public law issue warranting a lessrigid approach in the exercise of the Court’s discretion to permit interventions: Drew, at paragraph 23. The Court and society willbenefit by receiving different points of view on such an issue. [9] The Commission has satisfied me that it has a sufficient interest in the proceedings; that it can make a useful contributionconsidering its particular expertise in administering the Act; and that its participation will not unduly lengthen or delay the proceedingsnor impose an injustice or excessive burden on the parties.

This meets the criteria set out by the cases: for example, Forsey v. EasternRegional Health Authority (2007), 2007 NLTD 101 , 267 Nfld. & P.E.I.R. 19 (NLTD). [10] I do not accept the argument of Warford’s solicitor that the reference in s. 45(9) of the Act to the Commission’s decision tocommence an action being “final” prevents the Commission from subsequently arguing that the action is prohibited by the Act. Section19(3) of the Act authorizes the Commission to reconsider and rescind a previous decision.

I find nothing unfair to the parties inpermitting the Commission to intervene and express its views on the appeal. [11] The Commission has leave to intervene to make submissions regarding its jurisdiction to make statutory bar determinations,including comments by the Commission on the facts of the present case as they may relate to such jurisdiction. ______________________________ L. D. Barry J.A.