An employer’s appeal from a workers’ compensation determination that its employee had been injured, “in and out of the course of employment” as a snow plow operator, was unsuccessful

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Benefits – In and out of the course of employment – Judicial review – Standard of review – Reasonableness simpliciter

Nova Scotia (Department of Transportation and Public Works) v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2005] N.S.J. No. 137, Nova Scotia Court of Appeal, April 8, 2005, E.A. Roscoe, T.A. Cromwell and M.J. Hamilton JJ.A.

The Department of Transportation and Public Works employed a snow plow operator (“Puddicombe”) and called him to work two hours early because of a snowstorm. On the drive to work Puddicombe’s car slid off the road and he sustained injuries. Puddicombe claimed and was granted workers’ compensation benefits, a decision that was upheld by the Workers’ Compensation Appeals Tribunal (“WCAT”).

WCAT ultimately determined that Puddicombe’s injuries arose “out of and in the course of” his employment under s. 10 of the Workers Compensation Act, S.N.S. 1994-1995, c. 10. There was a close nexus between Puddicombe’s work and the risk of injury in a motor vehicle accident given the poor road conditions. The snowstorm was considered a situation of urgency requiring workers to be called in such that the roads would be safe by the start of the workday.

On appeal the questions of the appropriate standard of judicial review of WCAT’s decision and whether WCAT had made a reviewable error were argued.

Applying the pragmatic and functional approach, the Court determined that a standard of reasonableness ought to apply. There was no privative clause in the legislation. Appeals from WCAT to the Court of Appeal on questions of law and jurisdiction were permitted by the statute with leave. However, the Court noted that the lack of a privative clause and the existence of a right of appeal do not automatically warrant a correctness standard of review.

On the question of relative expertise, the Court concluded that WCAT did not have “markedly greater relative expertise with respect to legal questions arising under” the Act but that the tribunal’s functions supported a measure of deference with respect to certain legal questions falling squarely within those functions.

Considering the purpose of the legislation, the Court reasoned:

The overall purpose of workers’ compensation legislation is to take decisions about compensation for workplace injuries out of the tort system and out of the courts. Thus, WCAT’s role as an adjudicator of particular disputes tends towards less curial deference with respect to jurisdictional questions, general questions of statutory interpretation and the application of general legal principles. However, the overall purpose of the Act – getting workers’ compensation problems out of the courts – suggests that a measure of deference should be shown in relation to fact specific matters arising in the day-to-day operation of the workers’ compensation system.

The nature of the problem was held to be a mixture of fact and law. While the broad principles to be deduced from the statutory requirement are legal questions that Courts could comment on at a general level, the application of the phrase “arising out of and in the course of employment” was a fact-driven exercise on which there ought to be deference.

The WCAT decision was held to be reasonable in that it held up to a somewhat probing examination. WCAT had held that, in general, injuries suffered going to and from work do not arise out of or in the course of employment, but that the nature of the work and the link between the activity of the employee giving rise to the injury and the risk of the work ought to be considered. WCAT had proceeded through this analysis, finding as a fact that Puddicombe was expected to be at work within 30 minutes once he accepted the call-in on that date.

The employer’s appeal was dismissed without costs.

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