The Appellant Board successfully appealed the decision of the Chambers judge, which had overturned the Board’s review decision that found the Respondent Petro-Canada was not an employer, within the meaning of the Workers’ Compensation Act, in respect of a safety investigation

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Employer – definition – Judicial review – Procedural requirements and fairness – Standard of review – Reasonableness simpliciter

Petro-Canada v. British Columbia (Workers’ Compensation Board), [2009] B.C.J. No. 1842, British Columbia Court of Appeal, September 16, 2009, M.V. Newbury, S.D. Frankel and H. Groberman JJ.A.

After inspecting two service stations of the Respondent Petro-Canada, the Appellant Board made four Orders under the Workers’ Compensation Act (the “Act”) against Petro-Canada. The inspection, and the Orders, related to a violent incident that occurred at one of Petro-Canada’s service stations. The Board’s Orders found Petro-Canada, as an employer, had failed to consider, or take adequate steps to address, the safety of its employees.

Petro-Canada pursued a review in respect of the Prevention Officer’s decision (the “Review”). Petro-Canada argued that it was not an employer for the purposes of the Act because the Licensee of the service station, and not Petro-Canada, was actually the employer for those employees working at the service station.

The Case Officer (on behalf of the Appellant) conceded that two of the Orders ought to be rescinded because they could only be made against “employers” and Petro-Canada was not the employer of the employees. Petro-Canada, in putting forward its case, specifically chose not to argue this issue since the Appellant had conceded the point. The Review Officer considered the word “employer”, which is defined in several different parts of the Act. One such definition is in section 1 where the word “employer” was defined as follows: “employer includes every person having in their service under a contract of hiring or apprenticeship, written or oral, express or implied, a person engaged in work in or about an industry”. The Review Officer held that the definition in section 1 was not an exhaustive one and went on to find that the intent of the statute was to provide a “flexible and expansive concept of employer.” The Review Officer concluded that Petro-Canada was subject to the Act since it fell within the expansive definition of employer contemplated by the Act.

Petro-Canada sought judicial review of the Review Officer’s decision. Petro-Canada argued that the decision was wrong in the interpretation of the word “employer”. Petro-Canada also argued that it was denied procedural fairness because, at the hearing of the Review, the Case Officer conceded that Petro-Canada was not an employer and, as such, Petro-Canada did not address that issue before it lost on that issue.

The Chambers judge first decided that the applicable standard of review was reasonableness. This was the case because there is a strong privative clause, the applicable section of the Act involves a balancing of public interests, the Board has expertise in these matters, and the questions at issue were ones of law and of mixed fact and law. The Chambers judge accepted Petro-Canada’s submission that the term “employer” should not be interpreted so broadly that it captures employers in respect of employees that are not, strictly speaking, their own employees. The Chambers judge held that the Review Officer’s decision was unreasonable and remitted the matter back to the Appellant Board with directions as to how to interpret the term “employer”.

The Appellant appealed the Chambers judge’s decision. The Court held that the Review decision and the Chambers judge both focused inappropriately on the issue of whether Petro-Canada was an “employer”. Petro-Canada was clearly an employer within the meaning of the relevant section of the Act. The more difficult issue was whether the service stations operated by the franchisees were workplaces at which Petro-Canada’s work was carried out. The other issue was what Petro-Canada could reasonably do to ensure the health and safety of workers in light of its role in the service stations. The Review decision was in error in its reasoning but the error in reasoning did not permeate the remainder of that decision. The Review decision reasonably concluded that Petro-Canada’s work was being carried out at the service station and, as such, the Court disagreed with the Chamber judge’s finding that the Review decision was unreasonable.

The Court had to consider the procedural fairness argument and Petro-Canada did not address this issue in the Review decision. Petro-Canada made it clear, before making its submission to the Review Officer, that it was not addressing the term “employer” because of the concessions made by the Appellant’s Case Officer. The Review Officer ought to have corrected Petro-Canada’s mistaken assumption and, in failing to do so, Petro-Canada was denied procedural fairness.

The Court ordered that two components of the Review Decision be reinstated and also ordered that the Orders arising out of the phrase “employer” be remitted back to the Appellant Board so that each party can make submissions.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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