Administrative law – Decisions of administrative tribunals – Government agencies – Government employees – Workers compensation – Federal and provincial legislation – Worker – definition – Judicial review – Compliance with legislation – Jurisdiction of tribunal – Standard of review – Correctness
Canadian Broadcasting Corp. v. Luo,  B.C.J. No. 1559, British Columbia Court of Appeal, June 29, 2009, M.E. Saunders, S.D. Frankel and D.F. Tysoe JJ.A.
Mr. Meng died in a motor vehicle accident while engaged on behalf of the CBC. He or his company had a contract with CBC to transport and host visitors to British Columbia using his own motor vehicle. His death occurred while he was furthering that contract. Ms. Luo claimed as a dependent. There was no issue as to her status except in relation to Mr. Meng’s status as an employee.
CBC is a federal crown corporation and legislative competence in employment matters concerning CBC lies with Canada. The WCB is a creature of the Province of British Columbia constituted under the Workers’ Compensation Act, R.S.B.C. 1996, c. 492. The WCB has no jurisdiction in a compensation matter involving a person engaged by Canada or one of its crown agencies or crown corporations without empowerment by Canada and authority from British Columbia. Canada, rather than establishing its own compensation scheme for employees of the federal government and federal crown corporations, effects compensation through the use of provincial Workers’ Compensation Tribunals. It does this through the Government Employees Compensation Act.
The federal agency known as Human Resources and Skills Development Canada (“HRSDC”) concluded Mr. Meng was not an employee of CBC and thus concluded the matter could not be referred to the WCB for processing of the claim by Ms. Luo for compensation as his dependent. However, the WCB and, on review, the WCAT, determined that the WCB did have jurisdiction to determine whether Mr. Meng was an employee under the Act at the time of his death. The issue for the Court in this case was not whether Mr. Meng was an employee of CBC, but rather, the jurisdiction of the WCB to determine that question.
At trial, the learned judge concluded that the relevant standard of review was the standard of correctness. No issue was taken with that finding at the appeal.
The Court of Appeal held that Workers’ Compensation Tribunals were to decide the fundamental questions of entitlement under the legislative scheme. The Government Employees’ Compensation Act expressly assigned all questions under section 4(1) respecting entitlement to compensation to the provincial tribunal charged with determining the compensation questions. The Court held there was no reason to take the single issue of employment status out of that determination. There was no basis on which to raise one of the criteria for compensation set out in section 4(1) to a threshold question so as to exclude it from the processes of the provincial body. The absence of language in the Act which would reserve to the Minister or a federal agency authority to determine the issue of employment status when presented with a claim, and the absence of any legislated process by which a claimant could make submissions prior to a determination of the issue, absent jurisdiction in the provincial body, supported this interpretation. The Court noted that the interpretation advanced by CBC, carving out the singular question of employee status from section 4(1), strained the language of the section and should be avoided. The Court held that section 4 of the Act contemplated the provincial body making all determinations necessary to the claim, including whether the individual was an employee as required by section 4(1) and dismissed the appeal.
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