Janvier v Saskatchewan (Workers’ Compensation Board), 2021 SKCA 170

Court of Appeal for Saskatchewan Docket: CACV3276 Citation: Janvier v Saskatchewan (Workers’ Compensation Board) , 2021 SKCA 170 Date: 2021-12-30 Between: Kimberley Janvier, Irene Rombaut, Shawn Farrell, Syvan Blake, Shannon Bowman, Aaron Baynes, Alex Mayer, Shy-Lynne Janvier, Dante Janvier, Dolton Janvier, Joshua Rombaut, Justine Rombaut, Nicholas Rombaut, Amanda Rombaut, Vashiharathas Subramaniyam, Easton Giesbrecht Appellants (Applicants) And The Workers’ Compensation Board of Saskatchewan, Federated Co-operatives Limited, Consumers Co-operative Refinery Limited also known as Co-Op Refinery Complex, Skyway Canada Limited, Skyhigh Canada, WorleyParsons, Colt WorleyParsons, Rockwood Service Corporative, Acuren Group Inc., Sasktech Inspection Ltd.

Respondents (Respondents) Before: Ottenbreit, Caldwell and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr.

Justice Ottenbreit The Honourable Madam Justice Ryan-Froslie On appeal from: 2018 SKQB 175 , Regina Appeal heard: November 16, 2021 Counsel: Tavengwa Runyowa for the Appellants Jolene Horejda for The Worker’s Compensation Board of Saskatchewan David Thera, Q.C., and Britnee Holliday for Federated Co-operatives Limited and Consumer’s Co- operative Refinery Limited Noah Wernikowski for Attorney General of Saskatchewan Caldwell J.A. I.

INTRODUCTION [ 1 ] I would dismiss this appeal from the judicial review decision in Janvier v Saskatchewan (Workers’ Compensation Board) , 2018 SKQB 175 , [2018] 8 WWR 729 [ QB Decision ]. [ 2 ] The Appellants, who were all injured in an incident at the refinery operated and owned by Consumers Co-operative Refinery Limited and Federated Co-operatives Limited, argued before the Chambers judge that the Workers’ Compensation Board [Board] had committed jurisdictional errors when it concluded that ss. 43, 168 and 181 [barring provisions] of The Workers’ Compensation Act, 2013 , SS 2013, c W-17.11 [ Act ], barred their civil actions to recover damages related to their workplace injuries (see Janvier v Federated Co- operatives Ltd. , (25 May 2016) Regina, QB No. 1888 of 2013) [ WCB Decision ]).

Those provisions state, 43 No employer and no worker or worker’s dependant has a right of action against an employer or a worker with respect to an injury to a worker arising out of and in the course of the worker’s employment. … 168 This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker or the worker’s dependants are or might become entitled against the employer of the worker by reason of any injury to the worker arising out of and in the course of employment of the employer. … 181 Except as otherwise provided in this Act , all rights of action against employers for injuries to workers, either at common law or pursuant to any former Workers’ Compensation Act , are abolished. [ 3 ] The Appellants also alleged before the Chambers judge that a reasonable apprehension of bias on the part of the Board had arisen due to the procedure it had invoked to obtain submissions from the Attorney General of Saskatchewan in respect of the Appellants’ challenge to the constitutionality of the barring provisions under s. 7 of the Canadian Charter of Rights and Freedoms and s. 96 of the Constitution Act, 1867 . [ 4 ] In the QB Decision , the Chambers judge first ruled that the procedural circumstances had not given rise to a reasonable apprehension of bias.

He then dismissed the Appellants’ judicial review application, finding that the Board’s

interpretation of the barring provisions—i.e., as barring all causes of action, including those in which claims of bad faith had been made—was reasonable (and correct). Lastly, the Chambers judge dismissed the Appellants’ constitutional challenges, finding that, in the absence of an impact on security of the person, the interest they sought to protect is an economic interest that does not fall within the scope of s. 7 of the Charter and that, under s. 96 of the Constitution Act, 1867 , the enactment of the barring provisions was not outside the authority of a provincial legislature.

[5] In their appeal against the QB Decision, the Appellants renew their argument that a worker’s civil claim that an employer hasacted in bad faith should fall outside the barring provisions. They posit that, if such claims are not excluded from the statutory regime, theAct would give employers an incentive to create dangerous workplace environments. In making this argument, the Appellants do not somuch allege error on the part of the Chambers judge as they reassert and reframe the case they had put before the Board.

They say that theBoard drove past this question of excluding claims of bad faith from the statutory regime and that the Chambers judge failed to come togrips with that fact. The Appellants also assert this issue of bad faith is overarching and of general importance to the law, arguing that theChambers judge therefore erred by failing to review the WCB Decision on the standard of correctness.

However, if the appropriatestandard is reasonableness, the Appellants say the Chambers judge erred when he concluded that the WCB Decision was reasonable. [6] I find no merit to the Appellants’ contentions that the Chambers judge chose to apply the wrong standards of judicial reviewor that he erred in the application of the applicable standards when he upheld the Board’s

interpretation of the barring provisions. There isalso no merit to the Appellants’ allegation of a reasonable apprehension of bias on the part of the Board. [7] As the reasonableness (or correctness) of the WCB Decision is irrelevant if there is merit to the allegation of bias or if thebarring provisions are unconstitutional, I will address those issues before I review the allegations of error in the Chambers judge’s reviewof the WCB Decision. II. ISSUES A.

Did the Chambers judge err in his assessment of the allegation of bias? [8] I find no merit to the Appellants’ contention that the Chambers judge erred when he found no reasonable apprehension of biashad arisen from the Board’s request for, and receipt of, submissions from the Attorney General on the constitutionality of the barringprovisions and on the Board’s jurisdiction to answer constitutional questions. [9] The Appellants’ allegation of bias is tied directly to the way in which the Board had sought submissions from the AttorneyGeneral.

The Chambers judge described the procedural history that led to the Attorney General’s involvement in this way: [37] The respondent, SaskTech Inspection Ltd. made this application pursuant to s. 169 of the Act on August 14, 2014. The parties filedwritten submissions with the Board in January, April and May 2015. The applicants first raised arguments relating to the constitutionalityof the civil immunity provisions [i.e., the barring provisions] under the Charter in January 2015. They first raised the s. 96 argument inMay 2015.

The possibility of providing notice of the constitutional questions to the Attorney General was first raised by a corporaterespondent in May 2015. [38] On November 3, 2015, the Board conducted an oral hearing. The submissions of the respondent employers on the constitutionalissues were primarily directed at procedural issues. It was their position that the Board should not address the constitutional questions atall.

Counsel for Federated Co-operatives Limited suggested at the hearing that notice should be provided to the Attorney General pursuantto The Constitutional Questions Act, 2012, SS 2012, c C-29.01 [CQ Act]. The Board did not address that issue at the hearing. At the closeof the hearing, the Board advised the parties that it would attempt to release its decision within 30 days. [39] In a November 4, 2015 email to the Board, counsel for the applicants took the position that notice was not required pursuant to theCQ Act.

He noted that the obligation to give notice under the CQ Act arises when constitutional challenges arise in courts, and that theBoard is not a court. In response, the Board invited submissions from the other parties. The respondent reiterated that the Board should notdecide the constitutional issues. The applicants reiterated that the Board should not seek input from the Attorney General, and suggestedthat if it did so, it might “invalidate” the hearing. [40] On January 12, 2016, the Board provided notice of the constitutional issues to the Attorney General.

On January 21, 2016, itadvised the parties it would answer the constitutional questions. It also advised them that notice had been provided to the AttorneyGeneral, and that all parties would have the opportunity to file additional written submissions. The applicants objected to the Board’sdecision, resulting in an exchange of correspondence between the Board and the counsel for the applicants. [41] In the course of its dealings with the applicants, the Board changed its explanation for proceeding as it did. It initially took theposition that notice to the Attorney General was required by the CQ Act.

When the applicants pointed out the Board’s error, the Boardrelied on an internal policy which said the Board could provide notice to the Attorney General 14 days prior to a hearing. When theapplicants pointed out that notice was not given 14 days before the November 3 hearing, the Board took the position it had the jurisdictionto determine its own procedure. [42] In the result, the Board did not accede to the applicants’ demand that it stop. It asked the applicants to clarify their constitutionalquestions. The applicants did so on February 16, 2016.

On March 23, 2016, the Attorney General provided written submissions inresponse to those questions, in support of the constitutionality of the civil immunity provisions. The applicants and corporate respondentswere invited to respond to those submissions by April 7. The applicants declined the invitation. In a March 24, 2016, email, counsel forthe applicants took the position that the Board had “persistently shifted the goal posts and insisted on reopening pleadings after promisingotherwise”. As he put it: In

summary, the Board has no jurisdiction to reopen closed pleadings and to include non-parties with no standing. Without anyexplanation from the Board (despite repeated requests), we have no choice but to conclude that the Board has taken a position that ispartial to the Defendants in this matter. We do not recognize any further pleadings and will challenge the Board’s conduct in Court. [10] Before he assessed these circumstances, the Chambers judge correctly informed himself of the law of decision-maker bias asset forth in Committee for Justice and Liberty et al. v National Energy Board et al., (SCC), [1978] 1 SCR 369 [Committeefor Justice], per de Grandpré J. at 394, namely:

…the apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the questionand obtaining thereon the required information. In the words of the Court of Appeal, that test is “what would an informed person, viewingthe matter realistically and practically—and having thought the matter through—conclude.

Would he think that it is more likely than notthat [the decision-maker], whether consciously or unconsciously, would not decide fairly.” [11] Then, when applying the Committee for Justice test, the Chambers judge wrote: [48] There is, in my view, nothing in what the Board did that would lead an informed person, viewing the matter realistically andpractically — and having thought the matter through — to conclude it is more likely than not that the Board, whether consciously orunconsciously, would not decide fairly.

As the applicants note, it is to be expected that the Attorney General will generally defend theconstitutional validity of provincial laws.

The fact that a tribunal invites the Attorney General to offer that defence – whether in themanner and at the time specified in the CQ Act or otherwise − does not create the substantial grounds necessary to conclude that there is anapprehension of bias. [12] Following this, the Chambers judge found that the process employed by the Board to notify and obtain submissions from theAttorney General had not given rise to a breach of the principles of natural justice and could not constitute an abuse of process.

As to theformer, he observed pointedly that the Appellants had refused to take up the Board’s invitation “to clarify their constitutional questions,and … to respond to the Attorney General’s submissions” (QB Decision at para 51).

With respect to the latter, he found that abuse ofprocess, although a flexible doctrine, did not apply to actions taken by a decision-maker. [13] As the Chambers judge recognised, the matter before the Board was an application by an employer for a ruling that the Actapplied to the Appellants’ injury claims and, therefore, barred the Appellants’ Court of Queen’s Bench civil action (see University ofSaskatchewan v Workers’ Compensation Board of Saskatchewan, 2009 SKCA 17 at para 60, [2009] 3 WWR 387 [U of S]).

Suchapplications are predicated on the reasoning in Pasiechnyk v Saskatchewan (Workers’ Compensation Board), (SCC),[1997] 2 SCR 890 [Pasiechnyk], where the majority held that the Board has exclusive jurisdiction to decide questions of a worker’seligibility for compensation under the Act and therefore has exclusive jurisdiction to decide whether a worker’s civil action was barred:“individual immunity is the necessary corollary to collective liability” (at para 42).

That is, if the Board finds that a worker’s injury fallswithin the compensation regime under the Act, then the worker has axiomatically no right of action against the employer (s. 43) becausethe Act applies instead of rights and causes of action (s. 168) and, except as otherwise provided in the Act, “all rights of action againstemployers for injuries to workers, either at common law or pursuant to any former Workers’ Compensation Act, are abolished” (s. 181). [14] Moreover, in U of S and in Clarke v Federated Co-operatives Limited, 2011 SKQB 180, 374 Sask R 1 [Clarke], aff’d 2013SKCA 37, the Courts held that the barring provisions prohibited all civil rights of action based on a claim of workplace injury.

In Clarke,Currie J. addressed the specific issue of an exception to the barring provisions under the previous Act for what may be described as badfaith claims, writing, [32] [The barring provisions] make no exception, to the broad scope of the Act, for the morally reprehensible intentional conduct ofanother. Those sections restrict the entirety of an injured worker’s right of action to the workers’ compensation scheme.

Further, such anexception would not be consistent with the purpose and philosophy of the Act. [15] Notwithstanding Pasiechnyk and Clarke, the Appellants responded to the application by arguing against the “extension of [civilimmunity] protections to employers in cases of bad faith conduct or where the system incentivized employers to sacrifice safety for profitsor personal interests” (WCB Decision at 5).

They submitted, on the one hand, that they were not challenging Pasiechnyk but, on the otherhand, if the Board were to extend the application of the barring provisions to claims of bad faith, then the provisions would beunconstitutional and, if that were the case, then the issue of constitutionality would have to be left to the Court of Queen’s Bench. [16] Let me put the Appellants’ position in less artful terms to highlight why the Board had no choice but to seek the participation ofthe Attorney General in this matter and why doing so did not give rise to a reasonable apprehension of bias. [17] The Appellants told the Board that, if it sought assistance from the Attorney General, then the Appellants would “notrecognize” the Attorney General’s submissions and would “challenge the Board’s conduct in Court” (QB Decision at para 42).

In artlessterms, the Appellants told the Board to decide in their favour, or else. However, because the Appellants only thinly disguised their directchallenge to Pasiechnyk, Clarke and the constitutionality of the Act, the Board had no choice but to engage the Attorney General in thematter and to address the Appellants’ challenge to its exclusive jurisdiction head on.

Accordingly, the Board moved promptly, albeitperhaps a bit inelegantly, to ensure that the Attorney General received notice of the constitutional questions raised by the Appellants andto ensure that the Attorney General and all parties to the application had an opportunity to make further submissions thereon. Nothing inthis scenario gives rise to an apprehension of bias. Quite the opposite.

It is clear an informed person, viewing the matter realistically andpractically, and having thought it through, would conclude that the Board was moving consciously to decide the matter fairly. [18] In terms of appellate review, I find the Chambers judge concluded correctly that the Board’s engagement of the AttorneyGeneral was appropriate, had been carried out in a procedurally fair manner, and had not given rise to a reasonable apprehension of bias: [49] …[T]he participation of Attorneys General is contemplated by federal and provincial law and is the normal course of the businessin courts and tribunals, for good reason.

Those laws, and that practice, recognize the nature of constitutional questions that involve achallenge to legislation, and the role of the Attorney General. As Sopinka J. noted in Eaton v Brant County Board of Education, (SCC), [1997] 1 SCR 241 (WL), in relation to the purpose of a statutory notice provision in Ontario legislation: 48 … In our constitutional democracy, it is the elected representatives of the people who enact legislation.

While the courts have beengiven the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised exceptafter the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by andpursuant to the act of Parliament or the legislature would work a serious injustice not only to the elected representatives who enacted it butto the people.

Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionallyinfirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of theconstitutional issues in the courts or tribunal from which the appeals arise.

See, to the same effect, Guindon v Canada, 2015 SCC 41 at para 48, [2015] 3 SCR 3. [50] In the result, it is my view that the Board had the right to solicit comments from the Attorney General regardless of whether it didso at the time, and in the manner, specified by [The Constitutional Questions Act, 2012]. The fact that it did so did not raise a reasonableapprehension of bias. [19] I would dismiss this ground of appeal for the reasons given by the Chambers judge. B.

Are the barring provisions constitutionally sound? [20] As the Chambers judge understood, a tribunal’s answers to questions about the constitutionality of a statute or a statutoryprovision are reviewed on the standard of correctness. There is no error in the QB Decision on the issue of the appropriate standard ofreview. 1.

Did the Chambers judge err in his analysis under s. 7 of the Charter? [21] The Appellants say the Chambers judge erred when he found that they had not established that their right to sue in tort forworkplace injuries—which is an economic or property interest—is protected by s. 7 of the Charter. [22] This aspect of the appeal may be dismissed summarily—i.e., without inquiring into the correctness of the Chambers judge’sconclusion that there is an insufficient causal connection between the barring provisions and an interference with security of the person(Bedford v Canada (Attorney General), 2013 SCC 72, [2013] 3 SCR 1101). [23] As a general rule, economic or property interests are not protected by s. 7 of the Charter (see Irwin Toy v Quebec (AttorneyGeneral), (SCC), [1989] 1 SCR 927 at para 96; Gosselin v Québec (Attorney General), 2002 SCC 84 at para 80, [2002] 4SCR 429; Whitbread v Walley, (BC CA), [1988] 5 WWR 313 (BCCA) aff’d (SCC), [1990] 3 SCR1273).

In specific terms, the right to sue in tort for workplace injuries has been found to be an economic or property interest that is notprotected by s. 7 of the Charter (see: Budge v Alberta (Workers’ Compensation Board), 1991 ABCA 3, at para 11, [1991] 77 DLR (4th)361; Re Terzian et al. v Workers’ Compensation Board et al. (1983), (ON SC), 42 OR (2d) 144 (Div Ct); Ryan vOntario (Workmen’s Compensation Board) (1984), 6 OAC 33 (Div Ct); Vail & McIver v WCB (PEI), 2012 PECA 18, 268 CRR (2d) 24;and Rowell (Rowel) v Manitoba, 2006 MBCA 14, 265 DLR (4th) 173).

Therefore, the Chambers judge’s bottom line conclusion that theAppellants’ rights to sue in tort for workplace injuries is not an interest protected by s. 7 of the Charter is correct. [24] There is no reason to inquire further into this ground of appeal.

Section 96 of the Constitution Act, 1867 [25] When arguing before the Chambers judge, the Appellants asserted that the barring provisions, if they bar civil actions involvingclaims of bad faith, preclude access to the superior courts and are therefore, by reason of s. 96 of the Constitution Act, 1867, outside theauthority of a provincial legislature. The Appellants submit that the Chambers judge erred when he concluded otherwise. [26] I have no doubt the Chambers judge answered this question correctly.

The exclusive jurisdiction of the Board to resolvedisputes arising out of workplace injuries is well known and constitutionally sound (see Pasiechnyk; Pasiechnyk v Procrane Inc., (SK CA), [1992] 3 WWR 374 (Sask CA); and Terzian v Ontario (Workers’ Compensation Board)). Moreover, as theChambers judge recognised, the decision in Trial Lawyers Association of British Columbia v British Columbia (Attorney General), 2014SCC 59, [2014] 3 SCR 31, has not changed the

interpretation of s. 96 of the Constitution Act, 1867 in any way that is relevant to thismatter. The law remains as set forth by the Supreme Court in Tomko v Nova Scotia (Labour Relations Board), (SCC),[1977] 1 SCR 112, and Reference re Residential Tenancies Act 1979 (Ontario), (SCC), [1981] 1 SCR 714. [27] All of which means Pasiechnyk v Procrane Inc. is a complete answer to this ground of appeal. C.

Did the Chambers judge err when finding the WCB Decision reasonable? [28] The Chambers judge found that the outcome of the WCB Decision was both reasonable and correct. [29] Under Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1, the presumptive standardin the judicial review of an administrative tribunal’s decision is reasonableness. Nothing in the Act or under the rule of law rebuts thatpresumption. Indeed, the standard is confirmed by the language of the Act and by the jurisprudence.

As all aspects of the applicationbefore the Board in this case fell within its exclusive jurisdiction, it cannot be said that the questions of law raised by the Appellants were“of central importance to the legal system as a whole” (Vavilov at para 17).

Therefore, while correctness applies to the constitutionalquestions in this case, I agree with the Chambers judge that reasonableness was otherwise the correct standard to employ in the review ofthe WCB Decision. [30] Furthermore, I find no error in the Chambers judge’s assessment of the WCB Decision under the standard of reasonableness.Given the decision in Pasiechnyk, once the Board concluded that the Appellants had sustained injuries during the course of theiremployment, all causes of action against the employers were automatically prohibited under the barring provisions.

As the Chambersjudge recognised when he stated that the WCB Decision was correct, this was the only reasonable outcome on the law and the evidence inthis matter. [31] I reject the Appellants’ attempt to reframe the issues in this appeal and to have this Court conduct an inquiry de novo into theissue of constitutionality. I find no particular assistance in an analogy to the exception to the civil immunities statutorily granted togovernment officials when they have exercised a power of the state in bad faith. Those types of civil immunities are not in the same

category as the barring provisions, chiefly because employers do not exercise any governmental authority over their employees. Whenasked in the appeal hearing, the Appellants said again that they were not challenging the correctness of Pasiechnyk. For these and otherreasons, the Appellants reliance on the decisions in cases like Roncarelli v Duplessis, (SCC), [1959] SCR 121, and Nellesv Ontario, (SCC), [1989] 2 SCR 170, for example, is misplaced.

Lastly, since Pasiechnyk remains good law, there is noreason to revisit Sir Meredith’s report or the body of statutory law and jurisprudence developed on that basis. [32] In short, I find the Chambers judge concluded correctly that the WCB Decision was reasonable. III. DISPOSITION [33] I would dismiss the appeal with one set of costs to Federated Co-operatives Limited and Consumers Co-operative RefineryLimited. As the Attorney General did not request costs, I would not award any.

I would not award costs to the Board in thesecircumstances. “Caldwell J.A.” Caldwell J.A.I concur. “Ottenbreit J.A.” Ottenbreit J.A.I concur. “Ryan-Froslie J.A. Ryan-Froslie