Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Worker, defined – In and out of the course of employment – Personal time – Judicial review – Standard of review – Reasonableness simpliciter
Pontes Estate v. Alberta (Appeals Commission for Alberta Workers’ Compensation),  A.J. No. 487, 2010 ABQB 284, Alberta Court of Queen’s Bench, April 27, 2010, R.A. Graesser J.
On February 15, 2004, Jose Francisco Pontes was killed and Walter Fillatre was seriously injured when their vehicles struck a grader that was parked on the side of Zama Lake Highway. The grader had been operated by Angus Scott, who was an employee of Big A and had been removing snow and ice from a highway pursuant to a contract between Big A and the Municipal District of Mackenzie.
On the day of the accident, Scott began work between 8 and 9 am. At approximately 3 pm, he got a phone call from his daughter, whose vehicle had slid off the road about 7 km away. He was still grading the road at the time. He turned the grader around, and drove it to where his daughter’s car had gone off the road. Scott decided to call for a tow truck, and waited with his daughter when the tow truck arrived. He did not utilize the grader to help extricate the car or assist the tow truck driver. The accident happened as Scott watched the tow truck operator work.
Proceedings before the Workers’ Compensation Board were initiated by Scott and Big A after the Pontes Estate and Fillatre sued them for damages. Scott and Big A sought a declaration from the Board that Scott had been acting in the course of his employment at the time of the accident and was thus protected from civil liability. Both the Board and its Decision Review Body ruled that at the time of the accident Scott had abandoned his duties or had removed himself from the course of his employment. Scott and Big A appealed that decision to the Appeals Commission, which reversed the decisions of the Board and Decision Review Body and declared that Scott had been acting in the course of his employment at the time of the accident. The Pontes Estate and Filatree sought judicial review of the decision of the Appeals Commission.
On review, the court applied Dunsmuir v. New Brunswick, 2008 SCC 9 and noted that the appropriate standard of review was reasonableness. The court found that the decision of the Appeals Commission fell within the range of reasonable outcomes. The Appeals Commission noted that Scott’s employment required him to be on call 24 hours a day, and that the accident occurred where Scott had been operating his employer’s equipment, and that the location was one for which Big A had maintenance responsibility. The Appeals Commission also noted that when Scott had reached the site where his daughter’s vehicle had left the road, he had worked on it so that others would not slip in the icy conditions. Further, Scott testified that he would expect and would authorize other equipment operators to assist in similar situations on the road. The Appeals Commission accepted this evidence, despite its self-serving nature. The Appeals Commission’s decisions on credibility and its findings were entitled to deference and cannot be said to be unreasonable. The court upheld the decision of the Appeals Commission.
To stay current with the new case law and emerging legal issues in this area, subscribe here.