Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Employer – definition – Judicial review – Standard of review – Reasonableness simpliciter – Compliance with legislation
Petro-Canada v. British Columbia (Workers’ Compensation Board),  B.C.J. No. 1366, British Columbia Supreme Court, July 18, 2008, T.J. Melnick J
Petro-Canada is engaged in the sale and distribution of petroleum products. It sells or consigns these products through retail outlets typically referred to as service stations. Petro-Canada had approximately 180 service stations operating in British Columbia. At issue in the case were incidents at a service station on Scott Road, in Surrey, British Columbia and a service station in Langley, British Columbia. Under the Scott Road service station lease and performance agency agreement, the operator was deemed to be an agent of Petro-Canada and the workers were employees of the operator and not of Petro-Canada. Under the Langley service station retail licensee agreement, the licensee was the agent for Petro-Canada and the workers at the service station were employees of the licensee and not of Petro-Canada.
On May 8, 2006, a worker at the Scott Road service station was hit by a vehicle during a “gas and dash” incident and in February 2005,a worker at the Langley service station was held at knife point during a robbery. WCB issued inspection reports relating to these incidents which held that Petro-Canada had an obligation to its own workers as well as the workers at the service stations where Petro-Canada’s work was being done. Petro-Canada requested a review of these decisions.
On May 29, 2007, the Review Officer of the WCB review division issued his decision with respect to the Inspection Reports involving the service stations and found that Petro-Canada was obligated as an employer under section 115 of the Act to ensure the health and safety of the employees at the service stations and that Petro-Canada had not discharged its obligations. Petro-Canada then sought judicial review of the decision of the Review Officer including the finding that Petro-Canada was obligated as an employer under section 115(1)(a)(ii) of the Act to ensure the health and safety of the workers employed by the operators of the service stations.
In determining the appropriate standard of review, the Court noted that the standard must be determined by the common law for which the most recent instructions from the Supreme Court of Canada were found in Dunsmuir v. New Brunswick, 2008 SCC 9. That decision indicated that there are now only two standards of review: correctness and reasonableness. In this case, given the presence of a privative clause, the nature of the questions, the purpose of the legislation and the expertise of the WCB, the Court concluded that the appropriate standard of review of all the questions in the case was that of reasonableness.
The primary issue was the proper interpretation of the term “employer” with respect to Part 3 of the Act. The Court held that it was reasonable to conclude, as the Review Officer did, that the definition of “employer” contained in section 1 of the Act was non-exhaustive because it contained the word “includes” when providing examples of the situations which would fit within the term. However, the Court noted that the word “includes” within the definition of “employer” did not give carte blanche to the Review Officer to deem any party to be an “employer”. The Court held that the Review Officer’s interpretation of the scope of “employer” was not in accordance with reason. The Court noted that the Officer’s interpretation that an “employer” would essentially encompass anyone with the ability to affect the occupational health and safety of a worker ignored the plain meaning of the definition set out in section 106 and the subsequent section within Part 3 which allocated the responsibility for health and safety among a variety of parties, not just the “employer”. The Court found that there was no convincing rationale for the notion that the definition of “employer” in Part 3 should be given the scope as set out by the Review Officer. Given this conclusion, the Court held that it was unreasonable for the Review Officer to conclude that Petro-Canada was an “employer” with respect to the two service stations for the purposes of section 115(1)(a)(ii) of the Act.
The relationship of Petro-Canada to the service station workers did not fall within the definition of “employer” set out in section 1, nor within any conceivable common meaning of the word “employer”. There was no evidence of any contract between Petro-Canada and any of the workers of the service station. The Court noted that the clear contractual wording that Petro-Canada was not an “employer” of the service station workers should not have been glossed over by the Review Office in the absence of clear evidence to the contrary. The Court further noted that the Act and the regulations do not contain any provision deeming a franchisor, lessor, licensor, landlord or fuel producer as being a deemed “employer” of a franchisee, lessee, licensee, tenant or retailers and employees. Nor did Part 1 state that a WCB officer had the authority to deem just anyone to be an “employer” under Part 1. Only the Review Officer’s unreasonable legal interpretation of the scope of “employer” allowed him to classify Petro-Canada as an “employer” with respect to the service stations for the purposes of Part 3 of the Act and this decision could not stand.
In the result, the decision of the Review Officer was set aside and the orders relating to this decision were quashed.
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