Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Benefits – In and out of the course of employment – Judicial review – Appeals – Parties – Standing – Standard of review – Reasonableness simpliciter – Patent unreasonableness
Nabors Canada LP v. Alberta (Workers’ Compensation Appeals Commission),  A.J. No. 1507, Alberta Court of Appeal, December 4, 2006, Conrad, McFadyen and Berger JJ.A.
Derek Sitler (“Sitler”), a worker at the legal predecessor to Nabors, died in a motor vehicle accident when returning home after a two-week job on an oil rig. Just prior to the accident, Sitler took a detour from his usual route home to drop off a co-worker whom he was driving home. Sitler was also transporting work-related materials that one co-worker was to deliver to the head office.
Sitler’s wife’s claim for survivor benefits was denied at the case manager and Claims Service Review Committee levels on the basis that Sitler was not in the course of his employment at the time of his accident.
The WCB Appeals Commission overturned the denial of benefits, holding that Sitler was in the course of employment at the time because work-related materials were being transported in his vehicle.
Nabors appealed to the Court of Queen’s Bench, arguing it was a “person who has a direct interest in a decision of the Appeals Commission” who could thereby appeal on a question of law or jurisdiction.
At the Court of Queen’s Bench, Sulyma J. dismissed the appeal, holding that a reasonableness simpliciter standard of review was applicable and had been met. Nabors and WCB were ordered to pay solicitor-client costs.
The Court of Appeal held that the standard of review of patent unreasonableness, rather than reasonableness simpliciter, ought to apply, as had previously been determined to be the applicable standard of review of a decision of the WCB Commission on whether a worker’s surviving spouse was entitled to compensation.
One justice (Berger J.A.) of the Court held that the generally accepted requirement that a separate Pushpanathan analysis must be done in every case ought to be abandoned where the Court has already settled the standard of review for appeals from the particular administrative tribunal and on the same particular issue of law, despite the passage in Dr. Q v. College of Physicians and Surgeons of British Columbia reading: “In every case where a statute delegates power to an administrative decision-maker, the reviewing judge must begin by determining the standard of review on the pragmatic and functional approach”.
The second concurring justice (Conrad J.A.) would have reached the same result, but held that a fresh Pushpanathan analysis is required to every disputed issue, but that such an analysis could be brief. Conrad J.A. applied a reasonablness simplicter standard of review and held that the standard was met.
Nabors was found to be a person with a “direct interest” and therefore had standing to bring the appeal because the decision of the Court would directly impact Nabors’ financial account with WCB through an increase or decrease in premiums.
Berger J.A. held that Sitler’s vehicle was indispensable to the completion of delivery of the work-related materials that his work colleague was delivering, and that coverage begins when a worker begins the work-related travel and continues throughout the trip. The travel in the course of employment does not end with the completion of the task, provided the worker does not engage in a “distinctly personal departure”. It was not necessary for the worker to realize that he was engaged in a work-related activity in order to be acting in the course of his employment. The Commission’s decision was not patently unreasonable.
Conrad J.A. held that work-related travel here entailed the assumption of different risks than had Sitler gone straight home, and as such there was a reasonable basis for the Commission’s decision.
McFadyen J.A. dissented, and would have also applied a fresh Pushpanathan analysis. McFadyen felt that a reasonableness standard should apply, and reviewed the application of the standard of reasonableness simplicter by the lower Court on the basis of correctness. McFadyen J.A. held that the Appeals Commission erred in law in accepting that an employee could engage in a work-related errand without knowing it. McFadyen J.A. would have allowed the appeal and returned the matter to the Appeals Commission for reconsideration of the question of whether Sitler had personally undertaken the work-related errand.
In the result, the award of solicitor-client costs was upheld.
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