Dionne v. Workplace Safety and Insurance Appeals Tribunal et al. [Indexed as: Dionne v. Ontario Hydro]

93 O.R. (3d) 61

Ontario Superior Court of Justice,

Divisional Court,

Ferrier, Janet M. Wilson and Lederman JJ.

October 29, 2008

Workers' compensation -- Actions -- Worker allegedly injured as result of nuclear accident in course of his employment with Ontario Power Generation -- Workplace Safety and Insurance Appeals Tribunal correctly granting employer's application under s. 17 of Workers' Compensation Act for declaration that worker had no right to sue employer -- Employer being Schedule 2 employer under Workers' Compensation Act -- Nuclear Liability Act not creating federal statutory tort -- Federal jurisdiction over nuclear power not ousting provincial jurisdiction to legislate employees' compensation schemes for employees of nuclear power stations -- Section 12 of Nuclear Liability Act upholding rights and obligations arising under Workers' Compensation Act -- Nuclear Liability Act, R.S.C. 1985, c. N-28 -- Workers' Compensation Act, R.S.O. 1990, c. W.11, s. 17.

The applicant was allegedly injured as a result of a nuclear accident that occurred during the course of his employment with OPG, a Schedule 2 employer [page62 ]under the Workers' Compensation Act ("WCA"). He brought an action against OPG for damages. The Workplace Safety and Insurance Appeals Tribunal granted OPG's application under s. 17 of the WCA for a declaration that the applicant had no right to sue OPG. The applicant applied for judicial review of that decision.

Held, the application should be dismissed.

The Nuclear Liability Act ("NLA") does not create a federal statutory tort. The federal jurisdiction over nuclear power does not oust the provincial jurisdiction to legislate employees' compensation schemes for employees of nuclear power generating stations. The absolute liability of nuclear operators created by the NLA does not conflict with the employees' compensation scheme set out in the WCA. The NLA does not create a right to sue an employer that the WCA takes away. Section 12 of the NLA upholds the rights and obligations arising under the WCA.

APPLICATION for judicial review of the decision that the applicant did not have the right to sue his employer for injuries sustained in the course of his employment.

Cases referred to Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), 1988 83 (SCC), [1988] 1 S.C.R 897, [1988] S.C.J. No. 38, 51 D.L.R. (4th) 253, 85 N.R. 241, [1988] 4 W.W.R. 385, J.E. 88-754, 28 B.C.L.R. (2d) 312, 15 Q.A.C. 161, 21 C.C.E.L. 228, 9 A.C.W.S. (3d) 410; Canadian Pacific Railway Co. v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2000] O.J. No. 500, 130 O.A.C. 330, 49 C.C.E.L. (2d) 222, 95 A.C.W.S. (3d) 64 (Div. Ct.) Statutes referred to Nuclear Liability Act, R.S.C. 1985, c. N-28, ss. 3, 4, 12 Workers' Compensation Act, R.S.O. 1990, c. W.11, ss. 16, 17

Allen P. Welman, for Claude Dionne. Daniel S. Revington, for Workplace Safety and Insurance Appeals Tribunal. William G. Scott and Alastair J. McNish, for Ontario Hydro (now operating as Ontario Power Generation).

The judgment of the court was delivered by

[1] FERRIER J.: -- This is an application for judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal (the "Tribunal"), dated June 14, 2007.

[2] The applicant Claude Dionne (the "applicant") allegedly sustained injuries as a result of a nuclear accident that occurred during the course of his employment with Ontario Hydro, now Ontario Power Generation ("OPG") at the Pickering nuclear power station. He brought an action against OPG for damages. The Tribunal granted OPG's application under s. 17 of the Workers' Compensation Act, R.S.O. 1990, c. W.11 ("WCA") for a declaration [page63 ]that the applicant -- as an employee of a Schedule 2 employer -- has no right to sue OPG (the "Section 17 application").

[3] The parties submitted an agreed Statement of Facts as follows: -- Ontario Hydro (now operating as Ontario Power Generation) was a Schedule 2 employer under the Workers' Compensation Act, R.S.O. 1990, c. W.11 on December 10, 1994 and at all material times. -- Claude Dionne was an employee of the Schedule 2 employer, Ontario Hydro, at its Pickering Nuclear Generating Station on December 10, 1994. -- On December 10, 1994, the Pickering Nuclear Generating Station experienced a temporary emergency situation (the "emergency situation"). -- Mr. Dionne's alleged injuries arose from that emergency situation on December 10, 1994. -- The damages alleged by Mr. Dionne arose out of and were in the course of his employment at the Pickering Nuclear Generating Station.

[4] It was also agreed at the hearing that, for the purposes of OPG's Section 17 Application, the allegations set out in the applicant's amended statement of claim were deemed to be true.

[5] The Tribunal held that the WCA applied and dismissed Mr. Dionne's action, leaving him to pursue his remedy under the WCA.

[6] For the reasons following, the application is dismissed. Standard of Review

[7] The Tribunal was correct in its decision. It is accordingly not necessary to decide whether the lesser standard of reasonableness applies.

Issue One: Does the [Nuclear Liability Act, R.S.C. 1985, c. N- 28](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-n-28/latest/rsc-1985-c-n-28.html) ("NLA") create a federal statutory tort?

[8] The applicant argued that it does. I disagree.

[9] Sections 3 and 4 of the NLA are the relevant sections. There is nothing in the balance of the NLA provisions which support the interpretation urged by the applicant. The sections read as follows: [page64 ]

Duty of Operator

3. Subject to this Act, an operator is under a duty to secure that no injury to any other person or damage to any property of any other person is occasioned as a result of the fissionable or radioactive properties, or a combination of any of those properties with toxins, explosive or other hazardous properties, of (a) nuclear material that is in the nuclear installation of which he is the operator; (b) nuclear material that, having been in the nuclear installation of which he is the operator, has not subsequently been in a nuclear installation operated under lawful authority by any other person; or (c) nuclear material that is in the course of carriage from outside Canada to the nuclear installation of which he is the operator or is in a place of storage incidental to that carriage.

Absolute Liability of Operator

4. Subject to this Act, an operator is, without proof of fault or negligence, absolutely liable for a breach of the duty imposed on him by the Act.

[10] Thus, s. 3 defines a duty of care, requiring the operator of a nuclear facility to secure that no injury occurs as a result of fissionable or radioactive properties of nuclear materials.

[11] Section 4 provides for the absolute liability of the operator when that duty of care is breached.

[12] The sections go no further. The injured person must still prove an injury and that the radioactive properties of nuclear material caused the damage. A new "federal tort" is not created by the NLA.

Issue Two: Does the federal jurisdiction over nuclear power oust the provincial jurisdiction to legislate employees' compensation schemes for employees of nuclear power generating stations?

[13] The answer is no.

[14] When employers in Ontario are engaged in a federal undertaking, provincial employees' compensation is applicable: Canadian Pacific Railway Co. v. Ontario (Workplace Safety and Insurance Appeals Tribunal), [2000] O.J. No. 500, 130 O.A.C. 330 (Div. Ct.), at para. 7.

[15] As noted by the Tribunal, in the Canadian Pacific Railway case the Divisional Court held as follows [at para. 7]:

It is well established that the labour relations of federal undertakings are subject to exclusive federal jurisdiction under the constitution. However, the Judicial Committee of the Privy Council also recognized long ago that provincial workers' compensation legislations are applicable to federal [page65 ]undertakings (Workers' Compensation Board v. Canadian Pacific Railway Co., 1919 411 (UK JCPC), [1920] A.C. 184). As explained by Martland J., speaking about workers compensation legislation in Commission du Salaire Minimum v. Bell Telephone Co., 1966 1 (SCC), [1966] S.C.R. 767 at 774:

The Act did not purport to regulate the contract of employment. What it did was to create certain new legal rights which were to be in lieu of all rights of action to which the employee or his dependants might otherwise have been entitled at common law or by statute.

[16] Section 16 of the WCA provides:

16. The provisions of this Part are in lieu of all rights and rights of action, statutory or otherwise, to which a worker or the members of his or her family are or may be entitled against the employer of such worker, or any executive officer thereof, for or by reason of any accident happening to the worker or any occupational disease contracted by the worker on or after the 1st day of January, 1915, while in the employment of such employer, and no action lies in respect thereof.

[17] The foregoing supports the Tribunal's decision that "while the operation of a nuclear facility may well be a federal undertaking, that fact in and of itself does not oust provincial workers' compensation legislation".

[18] OPG's Pickering station, as a nuclear installation, is a federal undertaking. OPG, as a Schedule 2 employer in Ontario, is required by provincial law to contribute to the provincial workers compensation scheme. In return for this obligation, its employees, who have the right to apply for no-fault benefits under the provincial compensation scheme, forego any other right of action. The applicant, as an employee of Ontario Hydro at the time of his alleged accident, is obliged to resort to Ontario's employees' compensation scheme. Such a scheme "represents a statutory regime of collective no-fault liability designed to replace a private law regime of individual liability founded upon fault", per Beetz J. in Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), 1988 83 (SCC), [1988] 1 S.C.R. 897, [1988] S.C.J. No. 38, at para. 22.

[19] Furthermore, the absolute liability of nuclear operators created by the Nuclear Liability Act does not conflict with the employees' compensation scheme set out in the Workers' Compensation Act.

[20] There is no conflict between the NLA and the WCA. The NLA does not create a right to sue an employer that the WCA takes away.

Issue Three: Does s. 12 of the [NLA](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-n-28/latest/rsc-1985-c-n-28.html) uphold the rights and obligations arising under the [WCA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-w11/latest/rso-1990-c-w11.html)?

[21] The answer is yes. [page66 ]

[22] The section provides:

Limitation

12. Nothing in this Act shall be construed as limiting or restricting (a) any right or obligation of any person arising under (i) any contract of insurance, including any insurance required by subsection 15(1) to be maintained by an operator, (ii) any scheme or system of health or hospitalization insurance, employees' compensation or occupational disease compensation, or (iii) any survivorship or disability provision of or governing any superannuation or pension fund or plan; or (b) where a nuclear incident resulting in any injury or damage of the kind described in section 3 occurred wholly or partly as a result of an unlawful act or omission of any person done or omitted to be done with intent to cause injury or damage, any right of recourse of an operator against that person. (Emphasis added)

[23] The applicant argued that s. 12 simply means that the employee may pursue his remedies under the WCA as well as his right to sue for damages under the NLA.

[24] I reject this interpretation of s. 12.

[25] The section provides that the NLA shall not limit or restrict "any right or obligation" arising under any employees' compensation scheme.

[26] It is not only the employees who have rights (benefits) under the scheme.

[27] The employers also have rights and obligations under the WCA. Those rights are not limited or restricted by the NLA. One of the rights is to have the employee's claim dealt with under the WCA and not in a civil action.

[28] Furthermore, Part I of the NLA, under which the applicant claims, does not provide for a compensation scheme. Part II does so, but only where liability is expected to exceed $75,000,000.

[29] Accordingly, the application is dismissed. Costs

[30] As agreed, there shall be no costs between the applicant and the WSIB.

[31] The applicant commenced his action against OPG (then Ontario Hydro) in December 1995.

[32] Pleadings were amended several times and several interim steps were taken, including extensive discoveries. [page67 ]

[33] It was only in January 2006 that OPG applied to the Tribunal for a determination under s. 17 of the WCA.

[34] In these circumstances, there will be no order as to costs between the applicant and OPG.

Application dismissed.