Appeal from judicial review decision finding Workers’ Compensation Board decision regarding employer’s reporting duties unreasonable

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers compensation – Employer – definition – Employer’s duty to report accident – Third parties – Judicial review – Standard of review – Reasonableness simpliciter – Compliance with legislation

British Columbia Hydro and Power Authority v. Workers’ Compensation Board of British Columbia, [2014] B.C.J. No. 2298, 2014 BCCA 353, British Columbia Court of Appeal, September 15, 2014, K.E. Neilson, E.A. Bennett and N.J. Garson JJ.A.

The appellant Workers’ Compensation Board (the “Board”) issued an order citing the respondent British Columbia Hydro & Power Authority (“BC Hydro”) for not reporting an accident that involved a worker employed by a third party while working on a power line owned by BC Hydro.

In response to the order citing BC Hydro, BC Hydro took the position that it had no duty to report the accident as it was not the worker’s employer. On review, the Review Division upheld the Board’s order.

BC Hydro brought a petition for judicial review of the Review Division decision. The chambers judge found the Review Division decision was unreasonable, ordered that it be quashed, and remitted the matter to the Review Division for reconsideration.

The Board appealed to the court of Appeal seeking to set aside the order of the chambers judge on the basis that, in reviewing the review decision, he misapplied the reasonableness standard.

On appeal, the Board argued that although the chambers judge selected the proper standard of review, he erred in its application. Specifically, his decision was based on two erroneous propositions. First, the chambers judge misinterpreted the review decision with respect to whether BC Hydro’s participation at the accident scene informed its obligation to report the accident. The Court of Appeal held the chambers judge’s misapprehension of the review decision on this point was incorrect.

Second, the Board argued the chambers judge erred in interpreting the Workers Compensation Act (the “Act”) and the employer’s reporting requirements. The Board argued BC Hydro was an employer under the Act and given its connection to the worksite and the accident, it was reasonable to find it had an obligation as an employer to report the accident under the applicable provisions. The Board argued that the fact that the applicable provisions might be interpreted more narrowly does not render the decision unreasonable.

The Court of Appeal held the chambers judge correctly applied the standard of reasonableness in concluding the decision was unreasonable. Interpreting the Act and employer’s reporting requirements, the obligation to immediately report the accident under the applicable provisions lay with the third party employer. That third party failed to properly perform that duty, through no fault of BC Hydro. Before expanding the duty to report of BC Hydro, it was necessary to examine the entire legislative context and determine whether it revealed a gap that justified an expansive of interpretation, or whether the failure to report simply arose from the circumstances of the third party’s failure to report.

The Court of Appeal quashed the decision and remitted the matter to the Review Division for reconsideration.

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

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