Ontario Divisional Court
DIVISIONAL COURT FILE NO.: 14/23
DATE: 20241220
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mew, Myers, and O’Brien JJ
BETWEEN:
IRVING CONSUMER PRODUCTS LIMITED and JOHN DOE
Applicants
– and –
GURJOT SINGH, MANMEET KAUR, RANGI BROTHERS LOGISTICS INC., SURINDER SINGH, OLD REPUBLIC INSURANCE COMPANY OF CANADA, and WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
Chris Pigott and Christopher J. Rae, for the Applicants
Gregory J. Van Berkel, for the Respondents/Plaintiffs Gurjot Singh and Manmeet Kaur
Patrick Monaghan, for the Respondents Rangi Brothers Logistics Inc. and Surinder Singh
Greta Hoaken, for the Workplace Safety and Insurance Appeals Tribunal
HEARD at London: November 27, 2024
FL Myers J.:
REASONS FOR DECISION
Introduction
[1] Irving Consumer Products Inc. and its employee John Doe seek judicial review of the decision of the Workplace Safety and Insurance Appeals Tribunal dated June 15, 2022 and the reconsideration decision dated March 10, 2023.
[2] The tribunal held that under s. 28 of the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch A, Gurjot Singh and his spouse Manmeet Kaur are entitled to sue Irving and its employee John Doe in the Ontario Superior Court of Justice for compensation for injuries suffered by Mr. Singh in the course of his employment.
[3] Irving and Mr. Doe sought an order under s. 28 of the statute declaring that Mr. Singh and his spouse were not entitled to sue them in Ontario. The effect of the order would have been to limit the compensation available to Mr. Singh and his spouse to the workers’ compensation benefits under the statute.
[4] The tribunal held that since Mr. Doe has no connection to Ontario, the injured Ontario worker Gurjot Singh and his spouse may sue Mr. Doe in Ontario. The tribunal also held that the injured Ontario worker and his spouse may sue John Doe’s employer Irving despite it being a Schedule 1 employer under the statute.
[5] For the reasons that follow, the application is allowed. The application is referred back to a differently constituted tribunal for consideration without the constitutional extra-territoriality considerations that formed the basis of the tribunal’s interpretation below.
Background
[6] The facts are not in dispute.
[7] Rangi Brothers Logistics Inc. is an Ontario-based trucking company that is registered as a Schedule 1 employer with the Ontario Workplace Safety and Insurance Board.
[8] Irving hired Rangi Brothers to transport goods from New Brunswick to Texas.
[9] An unknown employee of Irving, who is being referred to as John Doe, loaded the trailer in New Brunswick. There is no evidence that the unknown employee, whoever he or she may be, had any connection at all to Ontario.
[10] The respondent Surinder Singh is also an employee of Rangi Brothers. He drove the truck from New Brunswick to Toronto.
[11] The plaintiff Gurjot Singh was employed as a driver by Rangi Brothers in Toronto. He took over the driving duties in Toronto.
[12] Gurjot Singh drove the Rangi Brothers’ truck and trailer from Toronto to Texas. Gurjot Singh suffered injuries in Texas while unloading the trailer in the course of his employment for Rangi Brothers.
[13] It is not disputed that Gurjot Singh is subject to the Ontario workers’ compensation scheme vis-à-vis his own employer Rangi Brothers in relation to injuries incurred in the course of his employment in Texas.
[14] Irving is also a Schedule 1 employer with the Ontario WSIB. Irving has employees and operations based in Ontario for whom it reports and pays assessments to the WSIB under the Ontario statute.
[15] Irving is also registered with New Brunswick’s workers’ compensation regulator Worksafe NB. Irving reports and pays assessments for its New Brunswick employees to the New Brunswick regulator. This presumably includes John Doe.
[16] Despite the statutory compensation benefits available to Gurjot Singh and his spouse, they have elected to sue Irving and John Doe for negligence in the Ontario Superior Court of Justice. As plaintiffs, they claim that the injuries sustained by Mr. Singh in the course of his employment in Texas were caused by the negligence of Irving and John Doe improperly loading the trailer and securing the load in New Brunswick.
[17] Irving and John Doe have commenced a third-party claim in the Ontario Superior Court action against Rangi Brothers and the first driver Surinder Singh. Irving and John Doe claim that the negligence of Surinder Singh and Rangi Brothers caused or contributed to the injuries sustained by the plaintiffs Gurjot Singh and his spouse.
[18] Irving and John Doe then commenced an application under s. 31 of WSIA, 1997 seeking an order that the plaintiffs’ rights to sue them were extinguished under s. 28 of the statute.
[19] The tribunal held that the plaintiffs were entitled to sue Irving and John Doe in Ontario because John Doe has no connection to Ontario. In that lawsuit however, the tribunal held that no one may recover from Rangi Brothers or Surinder Singh for any liability that the court may assess against them due to their own fault.
[20] As will be discussed below, the holding in relation to Rangi Brothers and the first driver reflect the essential trade-off of the statutory benefits scheme. Employees receive compensation for injuries suffered in the course of employment without proving fault by their employer and the employer is protected from being sued for tort liability in return for its participation and paying assessments into the scheme.
[21] Irving submits that it too is protected by that trade-off due to its participation in the Ontario and NB statutory compensation schemes. It submits that on a proper interpretation of the express wording of s. 28 of WSIA, 1997 the location of John Doe is not a basis to exclude Irving and John Doe from the trade-off provided under the statutory language.
Relevant Provisions
[22] Subsection 92 (13) of The Constitution Act, 1867, 30 & 31 Vict., c 3 provides that each province may exclusively make laws in relation to “Property and Civil Rights in the Province.”
[23] The following sections of the WSIA, 1997 require consideration:
Definitions
2 (1) In this Act,
“worker” means a person who has entered into or is employed under a contract of service or apprenticeship and includes the following:
Insured injuries
13 (1) A worker who sustains a personal injury by accident arising out of and in the course of his or her employment is entitled to benefits under the insurance plan.
Exception, employment outside Ontario
(3) Except as provided in sections 18 to 20, the worker is not entitled to benefits under the insurance plan if the accident occurs while the worker is employed outside of Ontario.
Employment outside Ontario
18 (1) This section applies if the accident happens while the worker is employed outside of Ontario, if the worker resides and is usually employed in Ontario and if the employer’s place of business is in Ontario.
Outside Ontario less than six months
(2) The worker is entitled to benefits under the insurance plan if the employment outside of Ontario has lasted less than six months.
Same, six months or more
(3) Upon the application of the employer, the Board may declare that the insurance plan applies to a worker whose employment outside of Ontario lasts or is likely to last six months or more.
Accident outside Ontario
19 (1) A worker who resides outside of Ontario is entitled to benefits under the insurance plan if his or her employer’s place of business is in Ontario, the worker’s usual place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a temporary purpose connected with the worker’s employment.
Same, non-Ontario employer
(2) If the accident happens outside of Ontario, the employer’s place of business is outside of Ontario and the worker is entitled to compensation under the law of the place where the accident happens, the worker is entitled to benefits under the insurance plan only if the worker’s place of employment is in Ontario and the accident happens while the worker is employed outside of Ontario for a casual or incidental purpose connected with the worker’s employment.
Same, on a vessel
(3) If the accident happens outside of Ontario on a vessel, the worker is entitled to benefits under the insurance plan if the worker resides in Ontario and,
(a) if the vessel is registered in Canada; or
(b) if the chief place of business of its owner or of the person who offers it for charter is in Ontario.
Same, certain vehicles, etc.
(4) If the accident happens outside of Ontario on a train, an aircraft or a vessel or on a vehicle used to transport passengers or goods, the worker is entitled to benefits under the insurance plan if he or she resides in Ontario and is required to perform his or her employment both in and outside of Ontario.
Obligation to elect, concurrent entitlement outside Ontario
20 (1) This section applies if a worker is entitled to benefits under the insurance plan relating to an accident and is also entitled to compensation under the laws of another jurisdiction in respect of the accident regardless of where the accident occurs This section also applies with necessary modifications if the worker’s survivors are so entitled.
No action for benefits
26 (1) No action lies to obtain benefits under the insurance plan, but all claims for benefits shall be heard and determined by the Board.
Benefits in lieu of rights of action
(2) Entitlement to benefits under the insurance plan is in lieu of all rights of action (statutory or otherwise) that a worker, a worker’s survivor or a worker’s spouse, child or dependant has or may have against the worker’s employer or an executive officer of the employer for or by reason of an accident happening to the worker or an occupational disease contracted by the worker while in the employment of the employer.
Application of certain sections
27 (1) Sections 28 to 31 apply with respect to a worker who sustains an injury or a disease that entitles him or her to benefits under the insurance plan and to the survivors of a deceased worker who are entitled to benefits under the plan.
Same
(2) If a worker’s right of action is taken away under section 28 or 29, the worker’s spouse, child, dependant or survivors are, also, not entitled to commence an action under section 61 of the Family Law Act.
Certain rights of action extinguished
28 (1) A worker employed by a Schedule 1 employer, the worker’s survivors and a Schedule 1 employer are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
Any Schedule 1 employer.
A director, executive officer or worker employed by any Schedule 1 employer.
Same, Schedule 2 employer
(2) A worker employed by a Schedule 2 employer and the worker’s survivors are not entitled to commence an action against the following persons in respect of the worker’s injury or disease:
The worker’s Schedule 2 employer.
A director, executive officer or worker employed by the worker’s Schedule 2 employer.
Restriction
(3) If the workers of one or more employers were involved in the circumstances in which the worker sustained the injury, subsection (1) applies only if the workers were acting in the course of their employment.
Liability where negligence, fault
29 (1) This section applies in the following circumstances:
In an action by or on behalf of a worker employed by a Schedule 1 employer or a survivor of such a worker, any Schedule 1 employer or a director, executive officer or another worker employed by a Schedule 1 employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
In an action by or on behalf of a worker employed by a Schedule 2 employer or a survivor of such a worker, the worker’s Schedule 2 employer or a director, executive officer or another worker employed by the employer is determined to be at fault or negligent in respect of the accident or the disease that gives rise to the worker’s entitlement to benefits under the insurance plan.
Same
(2) The employer, director, executive officer or other worker is not liable to pay damages to the worker or his or her survivors or to contribute to or indemnify another person who is liable to pay such damages.
Determination of fault
(3) The court shall determine what portion of the loss or damage was caused by the fault or negligence of the employer, director, executive officer or other worker and shall do so whether or not he, she or it is a party to the action.
Same
(4) No damages, contribution or indemnity for the amount determined under subsection (3) to be caused by a person described in that subsection is recoverable in an action.
Election, concurrent entitlements
30 (1) This section applies when a worker or a survivor of a deceased worker is entitled to benefits under the insurance plan with respect to an injury or disease and is also entitled to commence an action against a person in respect of the injury or disease.
Election
(2) The worker or survivor shall elect whether to claim the benefits or to commence the action and shall notify the Board of the option elected.
Decisions re rights of action and liability
31 (1) A party to an action or an insurer from whom statutory accident benefits are claimed under section 268 of the Insurance Act may apply to the Appeals Tribunal to determine,
(a) whether, because of this Act, the right to commence an action is taken away;
(b) whether the amount that a person may be liable to pay in an action is limited by this Act; or
(c) whether the plaintiff is entitled to claim benefits under the insurance plan.
Same
(2) The Appeals Tribunal has exclusive jurisdiction to determine a matter described in subsection (1).
Finality of decision
(3) A decision of the Appeals Tribunal under this section is final and is not open to question or review in a court.
The Decisions under Review
[24] To understand the issues, it is necessary to provide a brief outline of the decisions of the tribunal. Both the initial decision and the reconsideration decision were written by the same Vice-Chair of the tribunal.
[25] Gurjot Singh and his spouse initially elected to take benefits under the workers’ compensation scheme. However, they then returned the funds and elected to sue Irving and John Doe under s. 30 (2) of WSIA, 1997 on the basis that they were entitled to sue despite s. 28 of the statute.
[26] Irving and John Doe applied for an order under s. 31(1)(a) of the statute submitting that the common law rights to sue in tort of both Gurjot Singh and his spouse fell within the scope of the statutory trade-off set out in ss. 28 (1) and 27 (2) of the statute respectively.
[27] Irving and John Doe submitted that they could not be sued under s. 28 (1) because on the uncontested facts:
a. Gurjot Singh was an employee of a Schedule 1 employer Rangi Brothers as described in the body of s. 28 (1);
b. Irving is a Schedule 1 employer as provided in s. 28 (1)1; and
c. John Doe is or was a worker employed by a Schedule 1 employer as provided in s. 28 (1)2.
[28] The tribunal held that defendants sued in Ontario courts by injured workers must be in Ontario or sufficiently connected to Ontario to allow the province to affect their property and civil rights in Ontario. It held that John Doe had no connection to Ontario so the Province could not affect his property and civil rights. As I explain below, this was a mistaken characterization of the issues.
[29] The tribunal held that, “the Ontario Legislature can only legislate within Ontario.” It relied on the decision of the BC Court of Appeal in British Airways v. British Columbia (Workers' Compensation Board), 1985 758 (BC CA).
[30] Generally speaking, the tribunal thought it was applying a constitutional doctrine precluding provinces from legislating with extra-territorial effect, to limit the definition of the word “worker” as used in s. 28 (1)2 of the statute.
[31] The tribunal relied on a line of case law from the tribunal purporting to apply the British Airways case to hold that the word “worker” wherever used in the statute implicitly carries with it a territorial limitation. As Mr. Doe had no connection to Ontario, he was therefore not a “worker” within the scope of the trade-off contemplated by s. 28 (1)2 of the statute.
[32] This led to the seemingly perverse result that because John Doe had no connections to Ontario, he can be sued here for a tort committed in New Brunswick and injuries suffered in Texas. Typically, one would expect the court’s jurisdiction to be limited to those people in Ontario or with a real and substantial connection to Ontario. But because the tribunal misunderstood the nature of the “property and civil rights” at issue in this statutory scheme, it turned the constitution upside down.
[33] The tribunal then held that despite the plain wording of s. 28 (1)1 precluding lawsuits by injured Ontario workers against “any Schedule 1 employer”, s.28 (3) of the statute applied to exclude Irving from the protection of s. 28 (1).
[34] Lest there be any doubt about the understanding of the tribunal as to the constitutional underpinnings of its decisions, the member wrote the following in the reconsideration decision:
[27] At the original hearing, the respondents submitted that the fundamental issue in determining the application was the constitutional jurisdiction of the provinces and the effect of the limits of provincial constitutional jurisdiction when defining “worker” in the Ontario WSIA. The respondents submitted that the analysis should focus on whether a non-resident with no connection to Ontario was a “worker” as defined in the WSIA.
[28] Decision No. 281/22 agreed with the respondents’ submissions and the constitutional limitation that the Ontario Legislature can only legislate within Ontario...
[35] Accordingly, implying a constitutional limit to the word “worker” led the tribunal to dismiss the claim of Irving and John Doe that s. 28 (1) took away Gurjot Singh’s right to sue them.
Issues
(a) The Standard of Review
[36] The parties disagree on the applicable standard of review. If the issue is one of constitutional law, then the standard of review is correctness. If, however the decision is one of statutory interpretation, then the standard of review is reasonableness. Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 17, 55-57, and 108-110.
(b) The Merits
[37] The parties join issue on whether the decisions below are correct or reasonable depending on the standard of review that the court adopts.
(c) The Outcome does not turn on the Standard of Review
[38] When reviewing a matter for correctness, the reviewing court reviews a matter to arrive at its own conclusion of the correct outcome. It may or may not find the reasoning of the initial decision maker persuasive in that review. Vavilov, at paras. 53 and 54.
[39] In Thales DIS Canada Inc. v. Ontario (Transportation), 2023 ONCA 866, the Court of Appeal provided very explicit guidance as to how this court and any reviewing court ought to approach judicial review when a reasonableness standard of review applies (as it usually does).
[91] In Vavilov, at para. 83, the court emphasized that the reasonableness review must focus on the reasons of the administrative decision maker. The reviewing court’s role is not to decide the issue afresh: “a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the ‘range’ of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the ‘correct’ solution to the problem.” The court further emphasized, at para. 84, that the “reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion”.
[92] The hallmarks of a reasonable decision are justification, transparency and intelligibility: Vavilov, at para. 99.
[93] There are two types of “fundamental flaws” that may make a decision unreasonable: Vavilov, at para. 101. First, a decision may be unreasonable because the reasoning process is internally irrational: Vavilov, at para. 101. As explained in Turkiewicz, at para. 59, the “reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic”: see also Vavilov, at para. 102.
[94] Second, a decision may be unreasonable because it is “untenable in light of the relevant factual and legal constraints that bear on it”: Vavilov, at para. 101. Again, as described in Turkiewicz, at para. 60, the relevant factual and legal constraints include “the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the parties’ submissions; the past practices and decisions of the administrative body; and the potential impact on the individual to whom it applies”: see also Vavilov, at para. 106.
[40] In my view, I do not need to resolve the standard of review. The decision is both incorrect constitutionally and untenable in light of legal constraints as described in Vavilov and Thales. Applying the correct constitutional analysis removes the extra-territoriality issue from the statutory interpretation process to be applied by the tribunal. Alternatively, although the tribunal’s decisions are transparent, they cannot be justified due to legal constraints. By relying principally on the constitutional issue as the applicable tool for statutory interpretation, the tribunal has yet to conduct a statutory interpretation of s. 28 of WSIAT, 1997 using the modern, purposive approach adopted by the Supreme Court of Canada.
[41] As discussed in Vavilov at para. 110, the decision of the tribunal, and those on which it relied, have strayed beyond the limits set by the statutory language. The decisions cannot be justified under a reasonableness standard.
[42] I am cognizant of the discussion in Vavilov about being hesitant to pronounce upon an issue of law left to a tribunal and allowing a tribunal to sort out differences in competing lines of authority at the tribunal. See: Vavilov at paras. 124 and132. While there may have been competing lines of authority a decade or more ago, the line of cases applied below has won out. It is based upon a misreading of a single constitutional authority, a mis-categorization of the constitutional pith and substance of the relevant law, and a failure to apply the modern approach to statutory interpretation to the provisions under consideration. I say this without criticism as the British Airways precedent followed below is from 1985. While the age of a precedent does not necessarily alter its persuasiveness, it does in this case. The BC Court of Appeal decided British Airways five years before the Supreme Court of Canada modernized the approach to inter-provincial relations in Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC) and ten years before the Supreme Court of Canada definitively adopted the modern approach to statutory interpretation in Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC).
[43] I am cognizant as well that administrative decision makers do not necessarily apply the modern approach to statutory interpretation explicitly. They may quite properly bring specialized expertise and experience to bear. See: Vavilov at paras. 119 and 122. But that is not what happened here. Instead of interpreting the statutory language in the light of the statutory purpose, wording, and context, the tribunal has simply relied inaptly on an inapt precedent.
[44] In light of the analysis below, even under a reasonableness review, this case must go back to the tribunal for consideration of the statutory interpretation issues freed of the inapplicable constitutional baggage.
The Constitutional Issue – British Airways
[45] In British Airways, the BC workers’ compensation authority purported to assess British Airways to bring under the BC statutory workers’ compensation scheme its flight crews and flight attendants who fly into BC on their way elsewhere.
[46] British Airways was a Crown corporation in the UK. Its flight crews and flight attendants would fly through BC airspace for a total of 75 minutes with a temporary stopover. During stopovers, British Airways’ flight crews and flight attendants spent on average 2.5 hours on the ground in BC.
[47] The issue before the court was whether the BC authority was entitled to assess British Airways, “for workers’ compensation in respect of the Plaintiff’s employees employed as flight crew or flight attendants on the Plaintiff’s aircraft present in the Province of British Columbia from time to time.”
[48] Like the Ontario statute set out above, the BC statute defined “worker” by reference to the employment relationship and without any express territorial limit.
[49] The majority decision written by MacFarlane JA starts by finding that the statute itself is not unconstitutionally broad. Rather, as a matter of statutory interpretation, the provisions of the statute ought to be limited to their intra vires or constitutionally permissible reach.
[50] The majority cited the Privy Council decision in Workers Compensation Board v C.P.R. Co., (1919), 1919 411 (UK JCPC) to discuss the constitutional underpinnings of workers compensation legislation. MacFarlane JA wrote:
47] I do not think that the Act is ultra vires. I agree with counsel for British Airways that the true construction of the Act is consistent with the constitutional limitations on the powers of the province. I also agree that the board, in bringing the employees of British Airways within the Act, has extended the reach of the Act beyond the constitutional limits of the province.
48] The Workers Compensation Act has been characterized as a law relating to a matter coming within s. 92(13) of the Constitution Act, 1867, namely, “Property and civil rights in the province”. In Workmen’s Compensation Board v. C.P.R. Co., supra. Lord Haldane said, at p. 222 D.L.R., p. 181 W.W.R.:
The scheme of the Act is not one for interfering with rights outside the Province. It is in substance a scheme for securing a civil right within the Province.
He also said, at the same pages:
This right arises, not out of tort, but out of the workman’s statutory contract, and their Lordships think that it is a legitimate provincial object to secure that every workman resident within the Province who so contracts should possess it as a benefit conferred on himself as a subject of the Province.
He continued, at p. 222 D.L.R., p. 182 W.W.R.
… here the rights in question are the rights of workmen within British Columbia. It makes no difference that the accident insured against might happen in foreign waters. For the question is not whether there should be damages for a tort, but whether a contract of employment made with persons within the Province has given a title to a civil right within the Province to compensation.
[51] Workers’ compensation schemes are valid provincial legislation because they secure rights for workers within the province. They describe who will receive benefits and how the benefits will be funded. They control who will have access to the civil courts in the province and who will be provided benefits under the statutory scheme.
[52] In the context of discussing the limits of property and civil rights in the province, MacFarlane JA wrote:
53] It is clear that the Act could not apply to non-residents, who had entered into contracts of employment outside the province, and who worked outside the province. It is clear also that the Act applies to persons who work in the province, but who reside outside it. The Act also may apply to persons who reside in the province, and do some work outside the province. In order to give the province jurisdiction to secure the civil rights of a person related to his employment there must be a sufficient connection between that person’s employment and the province. [Emphasis added.]
[53] The majority ultimately read-in a territorial limitation to the definition of “worker”:
33] The word “worker” includes: (1) a person who enters into a contract of service, and (2) a person who works under a contract of service. I think that s. 1 must be read as if the words “in British Columbia” follow the words “contract of service or apprenticeship”.
[54] It is clear from the rest of the decision that the words read-in - “in British Columbia” – also include those with a “sufficient connection to British Columbia.”
[55] The decision ultimately held that BC workers’ compensation authorities could not assess a foreign corporation for employees with transitory presence in the province. Technically speaking, it held that the British Airways flight crews and flight attendants were not “workers” who would be entitled to receive benefits under the scheme and their employer thereby was not assessable under the scheme.
[56] In essence, the court held that a province cannot pull into its benefits system employees with only a transitory presence in the province and it cannot assess foreign corporations who employ the transitory workers.
[57] The easiest constitutional analogy is to provincial taxation. Just as a province cannot tax a person outside its borders who has no connection to the province, so too it cannot levy assessments against employers whose businesses and employees have no connection to the province. Those employees’ contracts of employment are not within the reach of the province’s jurisdiction over property and civil rights in the province.
[58] There are several important points which must be drawn from this decision to understand the meaning and scope of the Court of Appeal’s holding. First, the court was interpreting the statute in accordance with the principle that a statute should be interpreted in a way that renders it intra vires if possible. The Court was clear that there was no constitutional challenge the vires of the statute. Second, the Court was considering the reach of the law as to who can obtain benefits and who can be assessed under the provincial statute. It was not considering other elements of the law, like who can be sued in the BC Supreme Court by a BC benefits recipient. Third, the pith and substance of the law, to qualify under s. 92 (13), is that the law regulated property and civil rights of workers in the province The law deals with regulating BC worker injuries and benefits. The court therefore looked at the facts surrounding the worker claimant and the claimant’s employer only.
[59] I repeat the highlighted words above that form the ratio decidendi of British Airways:
In order to give the province jurisdiction to secure the civil rights of a person related to his employment there must be a sufficient connection between that person’s employment and the province.
[60] The decision deals with the rights of local workers and securing the property and civil rights of workers in or connected to BC.
The Decisions Below
[61] The issue before the tribunal was whether Irving and John Doe were protected from lawsuits under s. 28 (1) of the Ontario law. John Doe did not seek to claim benefits under the Ontario statute. There was no issue that Gurjot Singh was entitled to workers compensation benefits and his employer was thereby protected from being sued.
[62] The question then was whether s. 28 precluded Gurjot Singh and his spouse from suing Irving, a Schedule 1 employer, and John Doe, an employee of Irving.
[63] As expanded upon below, there is no constitutional division of powers issue raised by the question of whether the Province of Ontario may define who can sue and be sued by an injured Ontario worker in the Ontario Superior Court of Justice. The Province defines the causes of action available to plaintiffs. It defines who can be sued in its courts. Rule 17 of the Rules of Civil Procedure, RRO 1990, Reg 194, specifically describes how and when people outside Ontario may be brought before the Superior Court of Justice. Ontario’s common law and statutes preclude lawsuits against diplomats, people who are sued for things said or done during the course of a lawsuit, provincial employees who have not engaged in bad faith, and a myriad of others. There is no issue of extra-territoriality when a province enacts legislation under s. 92 (13) of the Constitution Act, 1867 that in pith and substance deals with changes to its common law of torts and who can sue and be sued in its courts by local workers who are entitled to workers’ compensation benefits.
[64] Yet the tribunal approached the issue in this case as if the Province might be unconstitutionally legislating extra-territorially by precluding an Ontario benefits recipient from suing someone who resides outside Ontario in the Ontario Superior Court of Justice in relation to the injuries for which benefits under the statute are available.
[65] The tribunal accepted the respondent’s submission:
[37] Accordingly for the WSIA to apply to affect the civil rights of the applicant, John Doe, and for John Doe to be considered a “worker” pursuant to the WSIA, there must be a sufficient connection between John Doe and Ontario. In this case, John Doe does not have a substantial connection with Ontario. Therefore, the civil action must be allowed to proceed. [Emphasis added.]
[66] Instead of assessing whether the statute could reach Gurjot Singh to preclude him from suing Irving and John Doe in Ontario, the tribunal considered whether Ontario could regulate the civil rights of John Doe in New Brunswick. The tribunal relied on WSIB policies that required workers to have a substantial connection with Ontario to fall within the statutory scheme.
[67] The tribunal held:
[41] The applicants’ representative submitted that the definition of “worker” and “employer” in the WSIA is not qualified or limited. The applicants submit that as Irving Consumer Products Limited employs workers and pays premiums in Ontario that makes Irving Consumer Products Limited, in New Brunswick, a schedule 1 employer and therefore it cannot be sued.
[42] I have considered the submissions but do not agree with them. I agree with the submissions from the respondents’ representatives that the Ontario Legislature can only legislate within Ontario. In support, I rely on British Airways where the British Columbia Court of Appeal had to decide whether British Airways was required to pay workers compensation assessments to the British Columbia Workers Compensation Board for the flight crew and flight attendants who worked on aircraft present in British Columbia from time to time. It was undisputed that British Airways conducted business in the province of British Columbia.
[43] As noted in British Airways while the wording of the statute was broad enough to include persons who do not reside or work in British Columbia and those whose contracts of service is [sic] made anywhere, constitutionally, the court found there must be a limit as the Act is “in substance a scheme for securing civil rights within the province”. The court noted how the scheme of workers’ compensation legislation is to secure civil rights of workers in that province and found that it did not apply to flight crew employees of British Airways in paragraph 71, as follows:
[44] I find the definition of “worker” in the WSIA is implicitly limited to persons who work in the province, have a contract of employment made in the province and/or have a sufficient connection with the province. In my view, it is implicit in the definition of worker that it applies to a person who has entered into or is employed under a contract of service in Ontario or has a substantial connection to Ontario.
[68] The tribunal found support for its decision in Decision No. 2071/12R2, 2016 ONWSIAT 313. In that case the tribunal found that for the purpose of s. 28, the connection between Ontario and the proposed defendant employer and its employee ought to be considered in the constitutional assessment of extra-territoriality. In that case the tribunal did not say why the proposed defendants’ residence or connection to Ontario was relevant to the constitutional reach of the statute. It simply cited British Airways as authority for the outcome.
[69] In addition, relying on the same precedent, the tribunal held that s. 28 (3) precludes a decision in favour of the employer of the non-resident employee even if the employer otherwise qualifies for protection under s. 28 (1)1. This is ostensibly because the non-resident employee (John Doe) is not a “worker” for the purposes of the statute.
[70] In its reconsideration decision below, the tribunal cited extensively from the decision of the Workers' Compensation Appeals Tribunal in Decision No. 462/88, 1988 2777. That case is the flipside of this one. An Ontario employee with an Ontario employer loaded a truck in Ontario and drove it to Pennsylvania. He was injured in Pennsylvania and sued there. The employee who was sued in Pennsylvania and the employer moved before the tribunal for an order precluding the employee from suing them in the Pennsylvania court.
[71] Relying heavily on the constitutional doctrine of extra-territoriality and the statutory interpretation presumption against unconstitutional interpretations, the board found that the Ontario statute did not empower it to make declarations about legal proceedings before the courts of Pennsylvania. It held:
We have concluded that the words "in Ontario" are implied in the phrase "action...the right to bring which is taken away by this Part". In our view, to conclude otherwise would be to extend the reach of the Act beyond the constitutional limits of the Ontario Legislature and violate the internal sovereignty of the Commonwealth of Pennsylvania where the Respondent has brought his action against NDS by derogating from civil rights existing beyond Ontario's boundaries. Our reasons follow.
In 1914 workers in Ontario traded off their right to sue their employers at common law for the new statutory right to compensation in the Act. This "trade off" was certainly part of the terms of reference of the Royal Commission appointed to review the laws relating to the liability of employers in 1910. Commissioner Meredith states in his 1912 Interim Report to the Lieutenant Governor that one of the questions still to be considered was "whether the compensation provided should be in lieu of the common law or other statutory right of the employee against his employer". The substance of the Commissioner's response to this question is clearly in the affirmative. The draft Bill that accompanied the 1913 Second Interim Report included a parallel to what is now section 14.
The introduction to the 1967 Report of the Royal Commission considering the Act offers a good summary of the principles underlying the Act and its historical background. At p. xviii:
It was to improve this system that, by the Workmen's Compensation Act of 1915, a new concept in tis [sic] field was introduced. By it the common law rights of the employer were swept aside and the employer was made responsible for accidents suffered in the course of employment without regard to fault on the labourer's part. In partial compensation for the loss of such rights the amount which the employer could be required to pay was made subject to certain limits. To finance this plan a compensation fund supported only by employers' contributions was established. The Act was in fact a compromise between industry and labour. Each sacrificed certain rights and to each accrued certain benefits.
Exactly how much was "sacrificed" by workers is, however, not so clear. Neither Commissioner Meredith nor the subsequent Commissioners reviewing the Act (Middleton J. in 1932, Roach J. in 1950 or McGillivray J. in 1967) appear to comment on the issue of whether workers traded off all rights of action only in the Province of Ontario or everywhere.
In contrast, however, the constitutional limits on the Ontario Legislature's powers are clear. There is also a strong presumption that the Ontario Legislature generally does not design statutes to operate beyond the territorial limits of Ontario. More specifically, there is a presumption that words in Ontario statutes designating persons, property, undertakings and events should, prima facie, be construed as referring only to persons, property, undertakings and events within Ontario.
Our review of the authorities indicates that the Applicant has a very difficult test to meet before displacing these presumptions, if indeed they can be displaced at all in view of the constitutional issue with respect to the limited powers of the Ontario Legislature.
The cases indicate that the courts (and, by necessary implication, tribunals) "will probably need to be persuaded that the operation of the legislation will be rendered ineffective before the presumption [in favour of territoriality and against extra-territoriality] will be set aside".[13] To import a power or intent to apply an Act to foreign matters outside the territory to which the Act extends"such power must have been conferred on [the Minister] by words in the statute so clear and specific as to be incapable of any other meaning"[14]. In short, the implication that an Act does not deal with foreign matters outside the territory is a strong implication. The courts will imply a broader operation only if the implication is "strong enough to overcome the reverse implication that an Act is intended to apply only to persons and acts within its territory"[15]. The presumption against extra-territoriality is reinforced by another presumption favouring a construction that validates an enactment over one which renders it invalid. Because Provinces have no power to legislate extra-territorially, they are deemed to respect the constitutional limits of their powers.
As has been noted, the presumptions concerning territoriality have been applied to workers' compensation legislation similar to Ontario's Act and the result has generally been the implication of a territorial limitation even though none is expressed. "Any employment" in the British Act has been limited to employment only in Britain.[16] "Contract of service" in the British Columbia Act has been limited to contracts only in British Columbia.[17] “Employer" in the Ontario Act has been limited to employers having a sufficient connection with Ontario.[18] "Accident""employment""action" and "rights and rights of action" in the Alberta Act have all been limited to Alberta.[19] [Notes omitted.]
[72] The tribunal relied on numerous authorities including Desharnais v. Canadian Pacific Railway, [1949] 3 WWR 59444 (Sask CA). That case decided that the workers’ compensation law of Alberta cannot prevent an Alberta employee who was injured in Saskatchewan from suing in Saskatchewan. To do so would give ultra vires extra-territorial effect to the Alberta legislation.
[73] The tribunal recited the final four paragraphs of Decision No. 462/88 reproduced above. The paragraphs certainly support a decision that the Ontario statute does not purport to regulate legal proceedings before a Pennsylvania court. Unfortunately, the tribunal below never asked itself the corollary question: does the presumption against extra-territoriality apply to Ontario legislating to limit Ontario workers’ compensation benefits recipients from bringing proceedings before the Ontario Superior Court of Justice?
[74] The tribunal in Decision is No. 462, above, discussed the uncertainty as to the scope of the trade-off made by Ontario employees who participate under the statutory scheme. Which causes of action did they trade off in order to obtain the no-fault benefits provided under the statutory scheme? That is the very subject matter of s. 28 of the statute. But it is a question of statutory interpretation and not one of constitutional law.
Analysis
Workers’ Compensation is a Shared Canadian Policy
[75] Cases like British Airways and Decision No. 462/88 rely heavily on constitutional presumptions limiting or precluding extra-territoriality in provincial legislation and limiting the interpretation of provincial legislation to preclude extra-territorial reach.
[76] But those presumptions are not the entirety of the interpretive analysis. Nor are they even a primary part of either a constitutional analysis or a statutory interpretation exercise in 2024.
[77] Workers’ compensation schemes have to be understood in the firmament of the national approach to workers’ compensation associated with the decisions of each and every province to replace common law tort law with statutory no-fault benefits. Since the Supreme Court of Canada decision in Morguard, provinces are seen less as independent foreign states at common law and more as part of a cooperative federal whole. Today, legislation is interpreted by the modern approach - to carry out its intended purpose as may be properly within the legislature’s constitutional jurisdiction – rather than by the primary application of limiting presumptions.
[78] Justice Whitten recently provided a thorough review of the prevailing approach to the interpretation of workers’ compensation legislation in Thomson v. Watson, 2020 ONSC 4409. In that case the plaintiff was an Ontario resident who was injured while driving his employer’s truck in British Columbia. His employer was based in Alberta. The plaintiff received workers’ compensation benefits under the Alberta workers’ compensation scheme. The plaintiff sued an Ontario resident for damages for negligent maintenance of the truck. The defendant was the corporate owner of the Alberta employer and also owned the truck that was driven by the plaintiff.
[79] The defendant moved to dismiss the action on the basis that it could not be sued under s. 28 of WSIA, 1997.
[80] Whitten J. commenced his analysis of the statute with the following history:
[15] A compelling analysis of the origins of workmans' compensation legislation which exists in every province is provided by Sopinka J. writing for the court in Pasiechnyk v. Saskatchewan (Workers' Compensation Board), 1997 316 (SCC), [1997] 2 S.C.R. 890, [1997] S.C.J. No. 74, in paras. 24 through to 27: [page110]
Workers' compensation is a system of compulsory no-fault mutual insurance administered by the state. Its origins go back to 19th century Germany, whence it spread to many other countries, including the United Kingdom and the United States. In Canada, the history of workers' compensation begins with the report of the Honourable Sir William Ralph Meredith, one-time Chief Justice of Ontario, who in 1910 was appointed to study systems of workers' compensation around the world and recommend a scheme for Ontario. He proposed compensating injured workers through an accident fund collected from industry and under the management of the state. His proposal was adopted by Ontario in 1914. The other provinces soon followed suit. Saskatchewan enacted The Workmen's Compensation Act, 1929, S.S. 1928-29, c. 73, in 1929.
Sir William Meredith also proposed what has since become known as the "historic trade-off" by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability. Initially in Ontario, only the employer of the worker who was injured was granted immunity from suit. The Act was amended one year after its passage to provide that injured Schedule 1 workers could not sue any Schedule 1 employer. This amendment was likely designed to account for the multi-employer workplace, where employees of several employers work together.
The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers' Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers' compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524:
While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible.
I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers' compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker's obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.
Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p. 279 that the scheme is based on four fundamental principles:
(a) compensation paid to injured workers without regard to fault;
(b) injured workers should enjoy security of payment;
(c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and
(d) compensation to injured workers provided quickly without court proceedings. [page111]
I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers' Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number of issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide them with any insurance.
Limits on the Right to Sue as part of the Workers’ Compensation Trade-off are Constitutionally Valid Laws
[81] Whitten J. noted that Pasiechnyk confirms that limits on parties’ rights to sue are valid provincial legislation in relation to the common law of torts within the province. They do not offend the constitutional authority of Superior Courts under s. 96 of the Constitution Act, 1867. Whitten J. continued:
[18] The constitutionality of the workers' compensation statutes and their historic tradeoff which bars the possibility of an action against the employer was established in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, [2013] S.C.J. No. 44.
[19] That decision penned by Lebel and Karakatsanis JJ. refers in para. 26 to the concise description provided by Professor Peter Hogg of the general nature and operation of workers' compensation schemes which, in effect, compresses the description provided by Sopinka J. set out above. [page112]
[20] The justices noted"provincial workers' compensation schemes generally cover persons employed in the relevant province, even if a workplace accident occurs outside of the province" (para. 27).
[82] Justice Whitten then turned to the law of “comity” involving, broadly speaking, the recognition of one state for the acts of another. He quoted from the decision of LaForest J. in Morguard Investments Ltd. v. De Savoye, 1990 29 (SCC):
[33] Justice La Forest wrote [at para. 31] that part of this recognition is based on the idea of "comity" and quoted the United States Supreme Court in Hilton v. Guyot, 159 U.S. 113, 16 S. Ct. 139 (1895), at pp. 163-64 U.S.:
Comity in the legal sense is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation having due regard both to international law and convenience, and to the rights of its own citizens or other persons who are within the protection of its laws.
(Emphasis added)
[34] Justice La Forest believed that "[t]he considerations underlying the rules of comity apply with much greater force between the units of a federal state, and I do not think it much matters whether one calls these rules of comity or simply relies directly on the reasons of justice, necessity and convenience . . . " (ref. ibid., at paras. 35 and 36).
[35] In La Forest J.'s view"[i]t seems anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province" (ref. ibid., at para. 41).
- The provincial superior courts
[36] Justice La Forest in Morguard described the Canadian federal court scene in the following [at para. 37]:
The Canadian judicial structure is so arranged that any concerns about differential quality of justice among the provinces can have no real foundation. All superior court judges -- who also have superintending control over other provincial courts and tribunals -- are appointed and paid by the federal authorities . . . all are subject to final review by the Supreme Court of Canada, which can determine when the courts of one
province have appropriately [page115] exercised jurisdiction in an action and the circumstances under which the courts of another province should recognize such judgments.
[83] Justice Whitten drew on the importance of the trade-off that underlies workers’ compensation schemes in the context of the Canadian federal system to conclude as follows:
[78] The provision of WCB insurance is country wide. Each plan incorporates a provision that reflects the historical tradeoff, or compromise as Sopinka J. described in Pasiechnyk reiterated by Lebel and Karakatsanis JJ. in Marine Services International Ltd.
[79] As was noted in Morguard Investments Ltd. v. De Savoye, La Forest J. indicates that rules of comity are even more applicable amongst units of a foreign state. In fact, the underlying focus for comity relies on reasons of justice, necessity and convenience.
[80] The existence of such plans across the country exist for the protection of workers and facilitate access to a ready source of monthly benefits in contrast to the ponderous obtaining of same pursuant to a tort action. Additionally, employers possess a similar [page121] certainty of exposure by contributing to such plans. For the employers, it is analogous to the purchase of a form of insurance.
[81] As La Forest J. observed in Morguard [at para. 41], it would "seem[page122] anarchic and unfair that a person should be able to avoid legal obligations arising in one province by simply moving to another province".
[82] The existence of principles of comity and the existence of the IJA, compelled Freeman J. in Spencer v. Mansour to find that a tort action by an employee was barred by the intent of Nova Scotian statute. This court is inclined to follow the precedent established by Freeman J. by the Nova Scotia Court of Appeal. To hold otherwise would threaten the fabric of WCB regimes across the country. There is no good reason to establish a tort haven amongst provinces that would encourage the circumventing of the statute and the historical tradeoff by simply moving to a different province.
[83] Therefore, by applying principles of comity and for reasons of justice, necessity and convenience this court finds that the plaintiff is statue-barred with respect to his tort action in this province.
[84] As a result, the court barred an Ontario worker with an Alberta employer from seeking damages in tort in the Ontario Superior Court of Justice against a third party in Ontario.
[85] Similarly, in Marine Services International Ltd., discussed by Whitten J. above, the Supreme Court of Canada held that Newfoundland and Labrador workers’ compensation legislation that precluded a local injured fisherman from suing others under federal legislation regulating maritime torts was constitutionally valid. The Court held that the application of the provincial workers’ compensation law to bar tort claims under the federal law applicable to events outside the province on the high seas, “appears to reflect the long-standing intention of Parliament through the development of these schemes.”
[86] It is fundamental to note that there was no issue of extra-territoriality raised before or by Whitten J. in Thomson or the Supreme Court of Canada in Marine Services International Ltd. The issue is simply the reach of the trade-offs in lawsuits available to local workers in the provincial courts in the context of our federal national structure.
The Tribunal Applied Inappropriately the Constitutional Doctrine of Extra-Territoriality
[87] In the same vein, it was simply an error for the tribunal below, and in its precedent cases on which it relied, to consider that the issue of whether Gurjot Singh, an injured Ontario worker, can sue John Doe and Irving in the Ontario Superior Court of Justice engages any constitutional or extra-territoriality issue.
[88] As repeatedly set out in the Supreme Court of Canada precedents referred to above and more, workers’ compensation statutes relate to the property and civil rights of injured employees and their employers in Ontario.
[89] The tribunal is mixing up two different questions. In some cases, it must decide which employees fall under the Ontario workers’ compensation benefits scheme. This question may involve the constitutional reach of the Ontario statute under British Airways.
[90] In cases such as this one, the tribunal must decide whether an injured Ontario worker who falls under the Ontario workers’ compensation benefits scheme is entitled, under s. 28 of the statute, to decline benefits and to sue someone in Ontario. This question does not involve British Airways at all.
[91] The tribunal’s discussion that I have quoted about workers’ property and civil rights in relation to the proposed defendant confuses the constitutional positions of Gurjot Singh and John Doe. The statute exists to regulate Ontario workers’ property and civil rights. It regulates the benefits of those with contracts of service in or related to Ontario.
[92] There is no doubt about the constitutional reach of the statutory scheme in this case. It reaches Gurjot Singh and his spouse as Ontario workers who are subject to the Ontario benefits scheme.
[93] The issue of who Ontario workers can sue in the courts of Ontario in lieu of receiving workers’ compensation benefits is a question about the limits and scope of the Ontario worker’s rights. There is no issue of extra-territoriality when Ontario regulates the scope of the trade-offs made by Ontario workers – in this case Gurjot Singh. Whether he and his spouse can sue someone else in the Ontario Superior Court of Justice is just a question of the meaning of s. 28 of WSIA, 1997. It has nothing at all to do with the constitutional underpinnings of the statute or the regulation of property and civil rights of the proposed defendants John Doe and Irving.
[94] In short, the interpretation of the scope of s. 28 of WSIA, 1997 to decide who can be sued by Ontario worker Gurjot Singh and his spouse in this case has nothing to do with the constitutional doctrine of extra-territoriality as reflected in the British Airways case.
[95] The Ontario statute is not aimed at protecting or affecting the property and civil rights of John Doe. His property and civil rights are regulated by the Province of New Brunswick. WSIA, 1997 is in pith and substance legislation about conferring benefits on Ontario workers and deciding who an injured Ontario worker can sue or not sue in the Ontario Superior Court of Justice as a result of the policy trade-off underlying the benefits scheme. This does not involve any issue of extra-territorial reach by Ontario law.
[96] The legal holding or ratio decidendi of British Airways dealt with identifying employees and employers whose property and civil rights might be affected by being swept into the statutory benefits scheme. Here, that is Gurjot Singh
and Rangi Brothers. British Airways said nothing at all about the ability of the Province of BC to legislate as to who is included in the statutory trade-off i.e., who can an injured BC worker sue in the courts of BC for tortiously causing him or her injury.
How to Interpret s. 28 of WSIAT, 1997
[97] In British Airways, the Court of Appeal chose to implement a territorial limitation by imputing a limit to the definition of “worker” under the BC statute. The tribunal’s decisions below seem to treat the case as if the BC Court of Appeal has amended the Ontario statutory definition of “workers” too and for all purposes. It did nothing of the sort.
[98] There are similarities among the statutory schemes of course. But the Ontario statute is subject to its own interpretation in accordance with the modern principle. I quote ss. 13, 18, 19, and 20 of WSIA, 1997 above. These sections deal with injured workers’ rights to benefits when they are injured outside Ontario. In fact, they deal with workers’ rights when they work on vehicles (as in this case), and airplanes (as in British Airways). The Ontario Legislature has made specific laws governing the extra-territorial reach of the Ontario statute. Each section has territorial definitions and numerous other conditions as well.
[99] The BC Court of Appeal read a territorial limitation into the definition of the word “worker” because under the BC statute, that definition drove the decisions about assessment of employers. The Court of Appeal was not asked whether it would impute the same territorial limitation into the definition of “worker” to determine who can be sued by a BC injured worker before the Supreme Court of British Columbia.
[100] In Decision No. 2071/12R2, 2017 ONWSIAT 1090, the tribunal dealt with the question of whether an Ontario employee who was injured while driving a truck in Ontario for his Ontario employer could sue in Ontario the owner and operator of the other truck involved in the collision. The proposed defendants resided in Manitoba. They were passing through Ontario returning from delivering a load in Quebec.
[101] The tribunal in that case cited numerous decisions on both sides of the issue. All the decisions that it relied upon that required the assessment of the location or contacts with Ontario of a proposed defendant did so based on a purported rote following of British Airways. But none considered whether the British Airways concern for extra-territoriality had any applicability to the decision of whether someone can be sued in tort law in Ontario before the Ontario Superior Court of Justice by an Ontario benefits recipient or whether the statutory trade-off expressed in s. 28 of WSIA, 1997 reached the proposed defendant.
[102] For example, at para. 56 of Decision No. 2071/12R2 the tribunal held:
[58] As was noted by the respondents, the Ontario Legislature can only legislate within the province. The province’s jurisdiction limit was also noted in British Airways v. Workers’ Compensation Board[3]…
[59] While I agree that the majority of Tribunal decisions have had to consider a plaintiff’s substantial connection with Ontario, that does not necessarily mean that the defendants’ substantial connection with Ontario is not relevant. In Decision No. 953/11, cited in TCO’s submissions, the parties agreed that the defendant applicants each had a substantial connection with Ontario even though they were “domiciled in Michigan”. Decision No. 334/07 also considered the defendant’s substantial connection with Ontario. Given the jurisdictional limits of the WSIA, I conclude that the provisions removing a right to sue only apply where the plaintiffs and defendants establish a substantial connection with Ontario.
[Emphasis added. Notes omitted.]
[103] Why? There is simply no consideration of why territorial limitations have any applicability to the question of who can be sued in Ontario by an Ontario injured worker. The sum and substance of the decision, which put to rest the prior decisions that leaned the other way, was that British Airways says the statute cannot apply beyond the province. That is just not the correct analysis.
[104] The issue then arises of whether s. 28 of WSIA, 1997, properly interpreted in accordance with modern principle of statutory interpretation and freed of any concern about extra-territorial application of the statute, applies to Irving and John Doe by its terms, context, and statutory purpose.
[105] In light of Vavilov’s clear call for deference to the primacy of specialized tribunals, I have decided that I should not engage in the statutory interpretation exercise. It is proper for this court to decide on the constitutional issue (whether it is truly one of vires or itself a question of statutory construction). Regardless, it is the unique and overriding responsibility of the court to provide clarity on constitutional issues. As stated by the Supreme Court of Canada in York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22,
[64] The determination of constitutionality calls on the court to exercise its unique role as the interpreter and guardian of the Constitution. Courts must provide the last word on the issue because the delimitation of the scope of constitutional guarantees that Canadians enjoy cannot vary “depending on how the state has chosen to delegate and wield its power” (Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 116, per McLachlin C.J.). The presumptive standard of reasonableness is, thus, rebutted and correctness applies.
[106] It falls to the tribunal then to consider whether s. 28 (1)1 of WSIA, 1997, properly interpreted, applies to Irving and whether, s. 28 (1)2 properly interpreted applies to John Doe.
[107] I note that the tribunal initially adopted a strained interpretation of s. 28 (3) to somehow exclude Irving from the protection of s. 28 (1)1 of the statute once it had excluded John Doe from the definition of a “worker” under s. 28 (1)2 of the statute.
[108] The tortured interpretation of s. 28 (3) was needed to try to ensure that if John Doe can be sued then Irving can also be sued for vicarious liability. To obtain that desired outcome, rather than repeating the strained interpretation in the reconsideration decision, the tribunal held that because Irving had not paid premiums to Ontario for John Doe, it was not part of the trade-off and they “are not entitled to the extension of civil rights provided by WSIA in the province of Ontario, including the right to protection from a civil action.” Rather than interpreting the words of the statute in their ordinary meaning, in their context, and to achieve the statutory purpose, the tribunal premised its assessment on Ontario spreading its largesse of civil rights outside the province.
[109] However, the Province is not spreading its constitutional jurisdiction beyond it borders to protect others. It is deciding whether Ontario workers who are entitled to statutory no-fault workers’ compensation benefits can sue at common law in the Ontario Superior Court of Justice: any Schedule 1 employer, or an employee who works for any Schedule 1 employer who was acting in the scope of his or her employment.
[110] The proper question for the tribunal will be whether s. 28 (1) applies to Irving and John Doe when interpreted in accordance with the modern principle of statutory interpretation with no consideration of extra-territoriality or the principle espoused in British Airways and with due regard to the shared national implementation of workers’ compensation schemes.
Outcome
[111] I find that the constitutional doctrine of extra-territoriality and the rule of statutory construction to favour an intra vires interpretation have no application to the interpretation of the availability of s. 28 of WSIA, 1997 to a defendant sued or proposed to be sued in the Ontario Superior Court of Justice by an Ontario injured worker.
[112] I set aside both decisions below concerning whether Gurjot Singh and his spouse are entitled to sue Irving and John Doe in the Ontario Superior Court of Justice. I remit the matter to a differently constituted decision-maker or panel to consider the statutory interpretation of s. 28 freed from the constitutional doctrine of extra-territoriality and any thought of applying British Airways.
[113] No one challenges the tribunal’s treatment of Rangi Brothers and Surinder Singh in the event that the lawsuit is permitted to proceed. I do not set aside those aspects of the decisions below.
[114] In accordance with the agreement of the parties filed, Gurjot Singh and the Workplace Safety and Insurance Appeals Tribunal will each pay Irving Consumer Products Limited costs in the amount of $5,000 all-inclusive.
The Role of the Tribunal
[115] The tribunal filed a comprehensive factum that was of assistance to the court in dealing with agreed facts, the workings of the statutory scheme, and the applicable standard of review.
[116] However, commencing at para. 53, the tribunal then took an adversarial position on the merits. It told the court why its decision was reasonable. It went through each of the issues between the parties and supported the respondents and itself on each issue.
[117] It is not appropriate for a neutral, independent statutory decision maker to be taking sides and to be seen to be supporting its own virtuosity and correctness.
[118] The court has a discretion to call on a tribunal to allow more depth of argument especially if one side is not represented. But where the parties are well represented, as was the case here, it is not appropriate for the tribunal to be seen to cast its lot with one party. Do Irving and John Doe now need to fear that on a new hearing the tribunal is already committed to its view of the outcome? I have ordered that the new hearing be before a differently constituted tribunal to try to guard against that outcome.
[119] This is not a new issue for this tribunal in particular. In Hydro Ottawa v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2019 ONSC 4898, this court wrote:
[7] Once the tribunal is a party, the court still has discretion as to the scope of participation to be accorded to the tribunal during the hearing. This involves balancing the need for fully informed adjudication against the importance of maintaining tribunal impartiality (Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147, at paras. 57 and 59; Northwestern Utilities Ltd. v. Edmonton (City), 1978 17 (SCC), [1979] 1 S.C.R. 684, at p. 708-711; Toronto Star Newspapers Ltd. v. Workplace Safety and Insurance Appeals Tribunal, 2017 ONSC 4537 (Div. Ct.), at para. 22). Although, in this case, there is another respondent who can participate in the proceedings, the Tribunal is in a unique position to present arguments concerning the applicable standard of review, jurisdictional issues, policy considerations, and the interrelationship of legislative provisions in the Workers’ Compensation Act and the Workplace Safety and Insurance Act, 1997. (See Ireland v. EFCO Canada Corp., 2017 ONSC 188 (Div. Ct.), at paras. 26-32.) That being said, considering the importance of maintaining tribunal impartiality, those portions of the Tribunal’s Factum from paragraphs 82 forward that address the reasonableness of its Decision will not be taken into account in determining this judicial review. [Emphasis added.]
[120] Similarly, in Radzevicius v. Workplace Safety and Insurance Appeals Tribunal, 2019 ONSC 1678 the court again raised the same issue:
[10] The court also raised with the WSIAT a concern with respect to its role in this proceeding and whether it ought to be adopting an adversarial approach in its factum arguing about the merits of its own decision. Mr. Paliare acknowledged the panel’s concerns and advised that while he is prepared to argue the issue, he will also ensure that the approach taken pays due heed to the tribunal’s impartiality. Accordingly, we leave any further consideration of this question to the panel that may ultimately hear the matter.
[121] We have ignored the provisions of the tribunal’s factum from paras. 52 to 81 inclusive.
[122] I wish to be clear as well that this problem does not lie at the feet of counsel who appeared before us. She was not yet called to the bar when the court told her client and her principals to stop taking sides on the merits when the tribunal’s own order is under review. It should not happen again.
Myers J.
I agree _______________________________
Mew J.
I agree _______________________________
O’Brien J.
Released: December 20, 2024
DIVISIONAL COURT FILE NO.: 14/23
DATE: 20241220
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Mew, Myers, and O’Brien JJ
BETWEEN:
IRVING CONSUMER PRODUCTS LIMITED and JOHN DOE
Applicants
– and –
GURJOT SINGH, MANMEET KAUR, RANGI BROTHERS LOGISTICS INC ., SURINDER SINGH, OLD REPUBLIC INSURANCE COMPANY OF CANADA, and WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondents
REASONS FOR DECISION
FL Myers J.
Released: December 20, 2024