Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] 2 SCR 890

Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890

The Workers’ Compensation Board

and the Government of Saskatchewan Appellants (Respondents)

v.

Elaine Pasiechnyk, Rhonda McFarlane, Ronald

MacMillan, Gordon Thompson, Orval Shevshenko,

Clifford Sovdi, Aaron Hill and Larry Marcyniuk Respondents (Applicants)

and

Pro‑Crane Inc., Saskatchewan Power Corporation

and the Attorney General for Saskatchewan Respondents (Interveners)

and

The Workers’ Compensation Board of Alberta,

the Westray Families, Sheila Fullowka,

Doreen Shauna Hourie, Tracey Neill,

Judit Pandev, Ella May Carol Riggs

and Doreen Vodnoski Interveners

Indexed as: Pasiechnyk v. Saskatchewan (Workers’ Compensation Board)

File No.: 24913.

1997: April 30; 1997: August 28.

Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Major JJ.

on appeal from the court of appeal for saskatchewan

Administrative law ‑‑ Judicial review ‑‑ Privative clause ‑‑ Compensation scheme barring actions against employers if compensation received ‑‑ Compensation received and action launched alleging breach of statutory duty ‑‑ Workers’ Compensation Board determining actions statute barred ‑‑ Standard of review (patent unreasonableness or correctness) applicable ‑‑ If patent unreasonableness, was the Board’s decision patently unreasonable ‑‑ If correctness, was the Board’s decision correct ‑‑ Workers’ Compensation Act, 1979, S.S. 1979, c. W‑17.1, ss. 2(f)(ii), (g), (j), (k)(i), (ii), (iii), (t), 3(1), 22(1)(b), (h), (i), (2), 28, 44, 57, 167, 168, 180.

SaskPower workers were killed and others injured by a falling crane owned by Pro-Crane. Injured workers and dependants of deceased workers qualified for and received workers’ compensation benefits. The respondents launched an action against SaskPower, Pro-Crane, and the Saskatchewan Government. The claim against the government alleged that it failed to meet its duties under The Occupational Health and Safety Act by failing to inspect the crane adequately. The government, Pro‑Crane and SaskPower successfully applied to the Workers’ Compensation Board for a determination of whether the actions were barred by the Act. The Court of Queen’s Bench dismissed the respondents’ application for judicial review. The Court of Appeal allowed the respondents’ appeal with respect to the action against the government but not with respect to the actions against Pro-Crane and SaskPower. This appeal involves only the action against the Government of Saskatchewan. The issues considered here were: (1) whether the standard of review to be applied was patent unreasonableness or correctness, and (2) whether, applying the proper criterion, the Board’s decision should be reviewed.

Held (L’Heureux‑Dubé J. dissenting): The appeal should be allowed.

Per Lamer C.J. and La Forest, Sopinka, Gonthier and Major JJ.: The standard of review applicable depends on whether the subject matter of the administrative tribunal’s decision was subject to a privative clause having full privative effect. If so, the decision is only reviewable if it is patently unreasonable or if the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal’s powers. In either circumstance the tribunal will have exceeded its jurisdiction.

A “full” or “true” privative clause declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference. The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In applying the test, a functional and pragmatic approach is to be taken. Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature.

The privative clause here (s. 22) was clearly intended to and applies to all issues that fall to be decided under the Act unless the issue is one that limits jurisdiction. The words “final and conclusive” in s. 168 do not indicate that the section was to have its own “stand‑alone” privative clause. The wording of s. 168 responds directly to the test: did the legislature intend to commit the matter exclusively to the Board?

The Board’s exclusive jurisdiction to decide the question of whether the statutory bar applies is supported by the history and purpose of workers’ compensation. The Board’s composition, tenure, and powers demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system.

A determination that an action is statute barred involves a determination of the very issues that go into determining whether the injured person is eligible for compensation. Every potential defendant, however, is not relieved of liability once the injured person has been found eligible for compensation. The Act contemplates that some rights of action will remain.

The question before the Board on an application under s. 168 is whether the plaintiff is eligible for compensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers’ compensation system. In both cases, the Board is passing on a matter that relates intimately to the purposes and structure of the workers’ compensation system and that is expressed in terms whose meaning is inseparable from their meaning elsewhere in the Act.

The questions of eligibility for compensation and of whether an action is barred are within the Board’s exclusive jurisdiction. The issue as to whether the proposed action is barred is also one that is committed to the Board for final decision and not reviewable unless it is patently unreasonable.

The Board asked itself four questions: (1) was the plaintiff a worker within the meaning of the Act; (2) if so, was the injury sustained in the course of employment; (3) is the defendant an employer within the meaning of the Act; and, (4) if so, does the claim arise out of acts or defaults of the employer or the employer’s employees while engaged in, about or in connection with the industry or employment in which the employer or worker of such employer causing the injury is engaged. These were the appropriate questions and the Board’s decision could not be said to be patently unreasonable.

The government, although not an “industry” in the ordinary sense of the term, must be understood to be an industry within the context of the workers’ compensation scheme. It is expressly included as an “employer” under the Act and pays premiums into the fund. The question, however, is whether the action is barred by s. 167. The “dual capacity” theory, which would divide the role of the government in accordance with its public and private duties, has no application here. The existence of a private law duty and hence a cause of action is not in issue.

It was not necessary to find that the Board was correct in order to uphold its decision. Applying the appropriate standard, clearly the Board’s decision is not patently unreasonable.

Per McLachlin J.: The dual capacity argument ‑‑ if the government is sued as employer, the Board can exclude actions in courts on the patently unreasonable standard, but if it is sued as regulator, the courts have equal expertise and the Board cannot exclude court actions ‑‑ cannot stand. It would undermine the Board’s power to determine whether actions are barred and introduce uncertainty into the system. Ultimately, the historic trade‑off between secure no‑fault compensation for all injuries and fault‑based recovery in the courts would be undermined. Further, the embracive wording of s. 180 indicates that the legislators intended to endow the Board with exclusive power to decide whether employee actions arising from workplace mishaps proceed, notwithstanding their legal characterization. The Board therefore had to consider whether the facts of the case and the relationship between the parties supported the conclusion that the action is barred.

Per L’Heureux‑Dubé J. (dissenting): The approach in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, should be applied with the emphasis not on the legislative intent behind the privative clause but rather on the general intent underlying the legislative scheme as a whole. Since, as a matter of constitutional law, a legislature may not protect an administrative body from review on matters of jurisdiction, it cannot decide freely which matters are jurisdictional and which come within the Board’s exclusive jurisdiction. Here, whether an action is barred by s. 168 of the Act may or may not be within the Board’s exclusive jurisdiction depending on the precise nature of the question and its relation to the Board’s expertise. The question before the Board ‑‑ whether the Government of Saskatchewan, even though it may not be sued as an employer by reason of s. 44 of the Workers’ Compensation Act, may be sued at common law in its capacity as regulator ‑‑ is one for which the Board has no special expertise. Since the matter is not one that falls within the Board’s protected jurisdiction, the proper criterion for review should be correctness, not patent unreasonableness.

The Board erred in declaring that any action against the government qua regulator is barred by the Act. At common law, the government owes a duty of care under certain circumstances and this duty may give rise to an action for negligence. Nothing in the Act abolishes this particular right of action. Indeed, reliance on ss. 44, 167 and 180, which explicitly exclude all rights of action “against the employers” begs the question as to whether the government can be sued in a capacity other than that of an employer. The purpose of the Act does not militate against such a right of action. Absent any provision excluding the common law right of action, the reasons for justifying an implicit exclusion would have to be strong. Here, the “historic trade-off” between employers and employees that resulted in the scheme would not be compromised by the possibility of actions against government qua regulator. There is no reason why employers would complain of such actions and want the regime abolished for that reason.

Cases Cited

By Sopinka J.

Applied: U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048; considered: Dominion Canners Ltd. v. Costanza, 1922 CanLII 3 (SCC), [1923] S.C.R. 46; Mack Trucks Manufacturing Co. v. Forget, 1973 CanLII 27 (SCC), [1974] S.C.R. 788; referred to: Pasiechnyk v. Procrane Inc. (1991), 1991 CanLII 7858 (SK QB), 94 Sask. R. 288, aff’d (1992), 1992 CanLII 8301 (SK CA), 97 Sask. R. 286; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316; Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557; Dayco (Canada) Ltd. v. CAW‑Canada, 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230; National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324; Canada (Attorney General) v. Public Service Alliance of Canada, 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614; Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 (1987), 1987 CanLII 118 (NL CA), 44 D.L.R. (4th) 501; Medwid v. Ontario (1988), 1988 CanLII 193 (ON SC), 48 D.L.R. (4th) 272; Peter v. Yorkshire Estate Co., 1925 CanLII 611 (UK JCPC), [1926] 2 W.W.R. 545; Alcyon Shipping Co. v. O’Krane, 1961 CanLII 42 (SCC), [1961] S.C.R. 299; Farrell v. Workmen’s Compensation Board, 1961 CanLII 46 (SCC), [1962] S.C.R. 48; Crowsnest Air Ltd. v. Workers’ Compensation Board (Sask.) and Stolar (1995), 1995 CanLII 3904 (SK CA), 128 Sask. R. 144; Anns v. Merton London Borough Council, [1978] A.C. 728; Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228.

By McLachlin J.

Referred to: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

By L’Heureux‑Dubé J. (dissenting)

U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048; Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220; Dominion Canners Ltd. v. Costanza, 1922 CanLII 3 (SCC), [1923] S.C.R. 46; Farrell v. Workmen’s Compensation Board, 1961 CanLII 46 (SCC), [1962] S.C.R. 48; Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557; Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228; City of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2; Anns v. Merton London Borough Council, [1978] A.C. 728.

Statutes and Regulations Cited

Building Trades Protection Act, R.S.S. 1978, c. B‑8.

Constitution Act, 1867, s. 96.

Labour Code, R.S.Q., c. C‑27, s. 45.

Occupational Health and Safety Act, R.S.S. 1978, c. O‑1.

Workers’ Compensation Act, 1979, S.S. 1979, c. W‑17.1, ss. 2(f)(ii), (g), (j), (k)(i), (ii), (iii), (t), 3(1), 13(1), 13(1.1) [ad. 1993, c. 63, s. 4], 14(1), 15 [later am. idem, s. 6], 21.1 [ad. idem, s. 8], 22(1)(a), (b), (c) [am. 1980‑81, c. 98, s. 5], (d) [idem], (e), (h), (i), (2), 23, 28, 39 [am. 1984‑85‑86, c. 89, s. 5], 40 [am. 1988‑89, c. 63, s. 3], 44, 57, 67(1) [am. 1980‑81, c. 98, s. 11; 1984‑85‑86, c. 89, s. 13; 1988‑89, c. 63, s. 8(1)], 68 [am. 1984‑85‑86, c. 89, s. 15], 82 to 98.2, 104, 105, 106 to 115.2, 121, 135(1), 135.1 [ad. 1980‑81, c. 98, s. 21], 167, 168, 180.

Workmen’s Compensation Act, R.S.O. 1960, c. 437.

Workmen’s Compensation Act, 1929, S.S. 1928‑29, c. 73.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 1995 CanLII 3984 (SK CA), 131 Sask. R. 275, 95 W.A.C. 275, 127 D.L.R. (4th) 135, [1995] 7 W.W.R. 1, 30 Admin. L.R. (2d) 157, [1995] S.J. No. 342 (QL), dismissing an appeal from a judgment of Scheibel J. (1993), 1993 CanLII 8948 (SK QB), 115 Sask. R. 111, [1993] S.J. No. 624 (QL), dismissing an application for judicial review of a decision of the Workers’ Compensation Board of Saskatchewan. Appeal allowed, L’Heureux‑Dubé J. dissenting.

Robert G. Richards, for the appellant the Workers’ Compensation Board.

Darryl Brown, for the appellant the Government of Saskatchewan.

E. F. Anthony Merchant, Q.C., and Kevin A. Clarke, for the respondents Elaine Pasiechnyk, Rhonda McFarlane, Ronald MacMillan, Gordon Thompson, Orval Shevshenko, Clifford Sovdi, Aaron Hill and Larry Marcyniuk.

Written submission only by Thomson Irvine for the respondent the Attorney General for Saskatchewan.

William P. Ostapek, for the intervener the Workers’ Compensation Board of Alberta.

Raymond F. Wagner, for the interveners the Westray Families.

J. Philip Warner, Q.C., for the interveners Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs and Doreen Vodnoski.

The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Major JJ. was delivered by

1Sopinka J. -- This case raises the issue of the correct standard of review of a determination of the Saskatchewan Workers’ Compensation Board (the “Board”) that an action was barred by The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (the “Act”). It also raises the issue of whether the government, when it acts as a regulator, is an “employer” within the meaning of the Act. I find that the determination made by the Board was protected by a full privative clause, and that it was within the jurisdiction of the Board. The Board’s decision that the government was an “employer” and thus entitled to benefit from the statutory bar was not patently unreasonable.

Facts

Facts

2On May 25, 1990 a crane owned by Pro-Crane fell over onto a trailer in which employees at a Saskatchewan Power Corporation (“SaskPower”) construction site were taking their morning coffee break. Two workers died and six others suffered serious and debilitating injuries. The injured workers and the dependants of the deceased workers qualified for and received workers’ compensation benefits.

3In January 1991, the respondents launched an action against SaskPower, Pro-Crane, and the Saskatchewan Government. The claim against the government alleged that it failed to meet its duties under The Occupational Health and Safety Act, R.S.S. 1978, c. O-1, by failing adequately to inspect the crane. The government, Pro-Crane and SaskPower applied to the Board under s. 168 of the Act for, among other things, a determination of whether the actions were barred by the Act. The respondents applied for an order of prohibition to prevent the Board from making this determination. Both the Saskatchewan Court of Queen’s Bench and the Court of Appeal rejected the respondents’ submission that the Board lacked jurisdiction to determine whether the actions were barred by the Act: see Pasiechnyk v. Procrane Inc. (1991), 1991 CanLII 7858 (SK QB), 94 Sask. R. 288 (Q.B.), aff’d (1992), 1992 CanLII 8301 (SK CA), 97 Sask. R. 286 (C.A.).

4The Board held that the government, Pro-Crane and SaskPower were “employers” within the meaning of the Act, and accordingly the actions were barred by the Act. The Saskatchewan Court of Queen’s Bench dismissed the respondents’ application for judicial review. The Saskatchewan Court of Appeal allowed the respondents’ appeal with respect to the action against the government but not with respect to the actions against Pro-Crane and SaskPower. This appeal involves only the action against the Government of Saskatchewan.

Relevant Statutory Provisions

5The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1

2. In this Act:

(f) “employer” includes any person, corporation, firm, association or body having in its service any worker engaged in any work in, about or in connection with an industry and includes:

(ii) the Crown in right of Saskatchewan and in right of Canada insofar as the latter in its capacity as an employer submits to the operation of this Act, any provincial permanent board or commission appointed in respect of any employment whatever and municipal corporations and school boards, and commissions and boards having the management of any work or service operated for a municipal corporation;

(g) “employment” includes employment in an industry or any part, branch or department of an industry, irrespective of whether the worker’s duties are performed at, near or away from the employer’s plant or business premises;

(j) “industry” means an industry to which this Act applies and includes establishment, undertaking, trade and business;

(k) “injury” means:

(i) the results of a wilful and intentional act, not being the act of the worker;

(ii) the results of a chance event occasioned by a physical or natural cause; and

(iii) any disablement;

arising out of and in the course of employment;

(t) “worker” means a person who has entered into or works under a contract of service or apprenticeship, ...

3. -- (1) This Act applies to all employers and workers engaged in, about or in connection with any industry in Saskatchewan except those industries excluded by a regulation or order of the Lieutenant Governor in Council or by section 10.

4. -- (1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which a power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine:

(b) whether any injury has arisen out of or in the course of an employment;

(h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned;

(i) whether any worker is within the scope of this Act.

(2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court.

28. Where, in an industry, a worker suffers an injury, he is entitled to compensation which shall be paid by the board out of the fund.

29. No employer and no worker or any dependent of a worker has a right of action against an employer or a worker with respect to an injury sustained by a worker in the course of his employment.

30. The right to compensation provided by this Act is in lieu of all rights of action, statutory or otherwise, to which a worker or his dependants are or may be entitled against the employer of the worker for or by reason of any injury sustained by him while in the employment of the employer.

31. Any party to any action may apply to the board for adjudication and determination of the question of the plaintiff’s right to compensation under this Act or as to whether the action is one barred by this Act, and that adjudication and determination is final and conclusive.

32. Except as otherwise provided in this Act, all rights of action against the employers for injuries to workers, either at common law or under The Workmen’s Compensation Act, are abolished.

Judgments Below

The Workers’ Compensation Board

Judgments Below

6The Board found that the actions against all three defendants were barred. The Board accepted that the Act was not intended to protect persons from lawsuits merely because of their status as “employers”. Hence they formulated the requirement that the employer or its employees be engaged in an industry. In the case of the Government, its industry was “regulating”. Because the Government must act through its employees, any right of action that the respondents might have against the Government would arise from acts or defaults of government employees while they were engaged in the government’s industry of regulating.

7The Board gave three reasons for rejecting the “dual capacity” theory advanced by the respondents: first, it does not recognize that the Government, Procrane and SaskPower are corporations and can therefore only act through their employees. Thus, they were really being sued in their capacity as employers. Second, the statute bars “all” rights of action in which workers are injured in the course of employment, with no exception for actions based solely on non-employment grounds. Third, this doctrine would allow injured workers to bring actions against their employers on some other ground of liability, thereby defeating the intention of workers’ compensation legislation.

Saskatchewan Court of Queen’s Bench (1993), 1993 CanLII 8948 (SK QB), 115 Sask. R. 111

Saskatchewan Court of Queen’s Bench

8Scheibel J. found that the Board had correctly concluded that Procrane, SaskPower and the Government were employers with workers engaged in an industry. He found that because an industry is an undertaking of any kind, what the government does is its industry. In the present case, the government’s industry was administering and enforcing occupational health and safety standards. If the facts alleged by the respondents were true, then they were injured as a result of a failure in connection with that industry, and that the Government therefore came within the parameters of the Act.

9Turning to the standard of review, Scheibel J. found that because the Board is subject to a true privative clause the test for review is therefore the patently unreasonable test. He found that the Board’s decision had not been shown to be patently unreasonable; nor did the Board exceed its jurisdiction. The decision would withstand not only the patently unreasonable test, but also a test of correctness.

Court of Appeal (1995), 1995 CanLII 3984 (SK CA), 131 Sask. R. 275

Court of Appeal

10Vancise J.A. noted that the Board has unique or specialized expertise and a full privative clause. However, he found that the question the Board had to answer under s. 168 was jurisdictional, because s. 168 delimits the Board’s power, and because the relevant legal framework for the question of whether the government can be sued in tort in its capacity as regulator, despite the statutory bar, was The Occupational Health and Safety Act and the common law, not the Act. Since The Occupational Health and Safety Act is outside the Board’s jurisdiction, he found that the correctness standard of review was applicable.

11In determining that the Board’s decision was incorrect, Vancise J.A., accepted the “dual capacity” doctrine, according to which an action against the government qua regulator is not barred, even though an action against the government qua employer would be barred.

12Wakeling J.A. dissented only on the issue of whether the actions against the Government of Saskatchewan should be allowed to proceed. He began by noting that since the first appellate decision in the matter decided that the Board had jurisdiction to hear and determine the issue, the test to be applied to the result was whether it was patently unreasonable. He also found that s. 168 clearly gave the Board jurisdiction to deal with the issue.

13Wakeling J.A. was also of the opinion that the Board’s decision was not patently unreasonable, and, was, in fact, correct. In rejecting the “dual capacity” doctrine, he noted that the Act expresses a concern with how the claim arises, and not the nature of the liability. The Act does not distinguish between kinds of claims, but bars all claims against employers.

Issues

Issues

14There are three issues in this appeal:

1. the standard of review;

2. if the standard of review is patent unreasonableness was the decision of the Board patently unreasonable; and

3. if the standard of review is correctness, was the Board correct in determining that the action against the government was statute barred?

15I have decided that the standard of review is patent unreasonableness and therefore the third issues does not arise.

Analysis

Standard of Review

Analysis

16To determine the standard of review, I must first decide whether the subject matter of the decision of the administrative tribunal was subject to a privative clause having full privative effect. If the conclusion is that a full privative clause applies, then the decision of the tribunal is only reviewable if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal’s powers. In either circumstance the tribunal will have exceeded its jurisdiction. These principles are summarized in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p. 1086:

It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:

1. if the question of law at issue is within the tribunal’s jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;

2. if however the question at issue concerns a legislative provision limiting the tribunal’s powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.

These two propositions derive their force in part from s. 96 of the Constitution Act, 1867. A legislature cannot completely insulate a tribunal from the superintending and reforming power of the superior courts. To attempt this would be to attempt to constitute the tribunal as a superior court: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220.

17A “full” or “true” privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316, at p. 332, and Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557, at p. 590. Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference. See Dayco (Canada) Ltd. v. CAW-Canada, 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230, at p. 264, and National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324.

18The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In applying the test, a functional and pragmatic approach is to be taken. See Canada (Attorney General) v. Public Service Alliance of Canada, 1991 CanLII 88 (SCC), [1991] 1 S.C.R. 614, at pp. 628-29. Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature. See Bibeault, supra, at pp. 1088-89.

19The respondents submit that s. 168 gives a unique power to the Board to direct the Superior Court not to hear an action. Because of the inherent jurisdiction of the Superior Court to control its own process, s. 168 should be interpreted narrowly, they say. This argument mischaracterizes the nature of the provisions at issue here. Section 168 does not give the Board the power to “direct” the Superior Court; it simply gives the Board the authority to answer a question about whether the action is statute-barred. In this context, it is significant that the Act does not speak of staying actions before the Superior Court, but rather, abolishes rights of action, as discussed below. Thus the effect of the respondents’ submissions would be to impair the power of a provincial legislature to abolish common law rights of action by according them constitutional protection under s. 96 of the Constitution Act, 1867. Moreover, every decision taken by an administrative tribunal in defining the extent of its jurisdiction will have an effect on the jurisdiction of the superior courts. But this effect does not, without more, make the question “jurisdictional”. For instance, a decision of a workers’ compensation board as to whether a disease is work-related or is an industrial disease is arguably a matter that is typically within the boundaries of the jurisdiction of such a board. Yet, clearly, that decision will also have an impact on the jurisdiction of ordinary courts over the matter. Thus, the question is not what is the effect on the jurisdiction of the superior courts, but whether the provision at issue is one which limits the tribunal’s jurisdiction.

20In this appeal the respondent submits that s. 22 which employs the language of a true privative clause does not apply to the matters which the Board is called upon to decide under s. 168. That provision, it is said, provides for its own free standing standard of review in the words “final and conclusive”. These words, it is argued, import a lesser standard of deference.

21I see little merit in this submission. Section 22 was clearly intended to and applies to all issues that fall to be decided under the Act unless the issue is one that limits jurisdiction. I do not accept the respondent’s submission that the presence of the words “final and conclusive” in s. 168 indicates that the section was to have its own “stand-alone” privative clause. On the contrary, in my view, those words were used to make it clear that the question in s. 168 fell within the purview of s. 22 and was committed to the Board whose decision would be final and conclusive. In other words, the wording of s. 168 responds directly to the test: did the legislature intend to commit the matter exclusively to the Board?

22Although this expression of intention by the legislature appears to be clear, it must be tested by reference to the other factors involved in the functional and pragmatic approach which this Court adopted in Bibeault, supra. In my opinion, the conclusion that matters arising under s. 168 are committed to the Board for final and exclusive decision is supported by the history and purpose of the Act as well as the nature and function of the Board. I turn to examine these factors.

23The history and purpose of workers’ compensation supports the proposition that the Board in this case had exclusive jurisdiction to decide the question of whether the statutory bar applies, because this question is intimately related to one side of the historic trade-off embodied in the system.

24Workers’ 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.

25Sir 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.

26The 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), 1987 CanLII 118 (NL CA), 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.

27Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 1988 CanLII 193 (ON SC), 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.

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 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 then with any insurance.

28The cases also support the conclusion that the legislature intended to commit exclusively to the Board the question of whether the statutory bar applied. In Dominion Canners Ltd. v. Costanza, 1922 CanLII 3 (SCC), [1923] S.C.R. 46, Duff J. (as he then was) found that the proper inference from provisions similar to the ones in issue here was that the authority to pass on the issue was solely vested in the Board. He commented, at p. 54:

The autonomy of the board is, I think, one of the central features of the system set up by the Workmen’s Compensation Act. One at least of the more obvious advantages of this very practical method of dealing with the subject of compensation for industrial accidents is that the waste of energy and expense in legal proceedings and a canon of interpretation governed in its application by refinement upon refinement leading to uncertainty and perplexity in the application of the Act are avoided.

29Anglin J. (as he then was) agreed at p. 61:

It seems to be quite clear that the question of the plaintiffs’ right to bring and maintain this action “arises under” Part I and also that it is

a matter or thing in respect to which power, authority or discretion is conferred on the Board.

In my opinion by giving to the board

exclusive jurisdiction to examine into, hear and determine

all such matters and questions the legislature intended to oust and did oust the jurisdiction of the ordinary courts to entertain them, and required that they should be examined into, heard and determined solely by the board.

30Since Dominion Canners, courts have consistently held that the question of whether the statutory bar applied to an action was finally committed to the board. See, for instance, Peter v. Yorkshire Estate Co., 1925 CanLII 611 (UK JCPC), [1926] 2 W.W.R. 545 (P.C.); Alcyon Shipping Co. v. O’Krane, 1961 CanLII 42 (SCC), [1961] S.C.R. 299; Farrell v. Workmen’s Compensation Board, 1961 CanLII 46 (SCC), [1962] S.C.R. 48; Mack Trucks Manufacturing Co. v. Forget, 1973 CanLII 27 (SCC), [1974] S.C.R. 788, and, more recently, Crowsnest Air Ltd. v. Workers’ Compensation Board (Sask.) and Stolar (1995), 1995 CanLII 3904 (SK CA), 128 Sask. R. 144 (C.A.).

31In Alcyon Shipping, the Court rejected the submission that the Board could determine whether a defendant was an “employer” in the administration of the Act but that the court could determine the matter independently. Judson J. found in Dominion Canners a recognition of the exclusive jurisdiction of the Board. He said at pp. 304-5:

As far as I know, this principle has never been in doubt since this decision. If it is departed from it will involve a serious breach in the administration of the Workmen’s Compensation Acts across the country.

Purpose and role of the Board

Purpose and role of the Board

32The Board occupies the central position in the workers’ compensation system. The system has three main aspects: (1) compensation and rehabilitation of injured workers, (2) the bar to actions, and (3) the injury fund. As seen above, all three are essential to the system as it was conceived by Meredith and implemented by each provincial legislature. The Board has a role in respect of each of these aspects. Thus the Board has exclusive jurisdiction to determine whether an injury arose out of or in the course of employment (s. 22(1)(a)); whether any industry is within the scope of the Act (s. 22(1)(h)); whether a worker is within the scope of the Act (s. 22(1)(i)); the existence, degree, and permanence of functional impairment (s. 22(1)(c) and (d)); the degree of diminution of earning capacity caused by an injury (s. 22(1)(e)). The Board has the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and examining them (s. 23). It can order a medical examination of the worker (s. 57).

33The Board also sets the level of compensation. It is directed to establish a rating schedule for permanent functional impairments (s. 67(1)). The Board determines what earnings a worker has lost and awards compensation on that basis (s. 68). It also determines the appropriate level of compensation to dependents where a worker dies (ss. 82 to 98.2). The Board can review the level of compensation being paid to workers and their dependents (ss. 104 and 105). The Board is also responsible for furnishing medical aid, including treatment and artificial limbs (ss. 106 to 115.2).

34The second aspect of the system, the bar to actions, is at issue in this case. Section 168 clearly grants the Board jurisdiction to determine when the bar applies.

35The third aspect of the system, the injury fund, also comes under the authority of the Board. The Board has the responsibility to maintain the fund and collect assessments from employers. It establishes classes of industries (s. 121(1)), and can subdivide those classes according to the hazard they present (s. 121(2)). The Board then assesses employers in each class a percentage of their pay-roll that it considers sufficient to pay for injuries to workers in industries in that class (s. 135(1)). There are provisions allowing for additional assessments on employers who have fatal accidents (s. 135.1).

The Expertise of the Board

The Expertise of the Board

36The expertise of workers’ compensation boards was recognized early on. In Dominion Canners, Idington J. noted at p. 53 that:

The past experience of the members of the board, no doubt was sufficient guide and we should at least give them credit therefor, and knowledge, by this time, of the Act, superior, I imagine, to ours.

37At the time that the application under s. 168 was heard, the Board was composed of at least three members appointed by the Lieutenant Governor in Council (s. 13(1)). The chairman was appointed from among the members by the Lieutenant Governor in Council (s. 14(1)). The members held office at pleasure, except for the chairman, who was appointed for five years and was eligible for reappointment (s. 15). As it stands today, the Board has a maximum of five full-time members, including a chairperson and an even number of members, half of whom represent employers and half of whom represent workers (s. 13(1)). The employer representatives are chosen from a list of names submitted by employer associations, and the worker representatives are chosen from a list of names submitted by labour organizations (s. 13(1.1)). The chairperson holds office for five years and may be reappointed; the other members hold office for four years and may be reappointed (s. 15). In addition to the specific powers described above, the Act imposes on the Board the general duty of treating workers and their dependants in a fair and reasonable manner (s. 21.1(1)). The Board is assisted in its work by a large professional staff headed by an executive director who is the chief administrative officer of the Board. The Board also establishes and publishes policy directives (s. 21.1(2)).

38The composition, tenure, and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in setting assessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. As Wakeling J.A. commented at p. 301 in his dissenting reasons:

[The Board members] are well equipped to draw on a background of experience to determine how the Act will best function so as to assure a continued consistent development of the intended purposes of the Act. I have no reason to doubt they are well qualified to decide the various issues the legislation is designed to present them.

The Problem before the Board

39The Act contains three provisions that bar actions. Section 44 takes away the right of action of an employer or a worker against an employer or a worker for an injury sustained by a worker in the course of his employment. Section 167 simply provides that the right to compensation in the Act is in lieu of all rights of action that a worker may have against his or her employer by reason of an injury sustained in the course of employment. Section 180 abolishes all rights of action against employers for injuries to workers. It is significant that these sections use language that has a particular definition in the context of the workers’ compensation scheme. “Employer”, “worker”, and “injury” are all given specific and detailed definitions in the Act. The concept of being “in the course of his employment” is central to a worker’s eligibility for compensation: an injury is not an “injury” for the purposes of the Act unless it arises out of and in the course of employment. There are certain deeming provisions in the act relating to all of these concepts.

40A determination that an action is statute barred will thus involve a determination of the very issues that go into determining whether the injured person is eligible for compensation. This does not mean, however, that every potential defendant is relieved of liability once the injured person has been found eligible for compensation. The Act contemplates that some rights of action will remain: it provides that where a worker has a cause of action and is also entitled to compensation, he or she can receive compensation and also bring the action (s. 39), but the Board will be subrogated to the claim (s. 40).

41Essentially, then, the question before the Board on an application under s. 168 is whether the plaintiff is eligible for compensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers’ compensation system. In both cases, the Board is passing on a matter that relates intimately to the purposes and structure of the workers’ compensation system, and that is expressed in terms whose meaning is inseparable from their meaning elsewhere in the Act.

42There can be no question that the question of eligibility for compensation is one that is within the Board’s exclusive jurisdiction. It is also clear upon examination that the issue of whether an action is barred is equally within the Board’s exclusive jurisdiction. It would undermine the purposes of the scheme for the courts to assume jurisdiction over that question. It could lead to one of the problems that workers’ compensation was created to solve, namely, the problem of employers becoming insolvent as a result of high damage awards. The system of collective liability was created to prevent that, and thus to ensure security of compensation to the workers. Individual immunity is the necessary corollary to collective liability. The interposition of the courts could also lead to uncertainty about recovery. Anglin J. recognized this in Dominion Canners, where he suggested that the purpose of the Act reserving to the Board exclusive jurisdiction over the question of whether an action was barred was to avoid a worker’s being completely denied recovery should the Board determine that he or she was not entitled to compensation but the court determine that he was.

43In view of the above, the issue as to whether the proposed action is barred is one that is committed to the Board for final decision and is not reviewable unless it is patently unreasonable.

Is the Decision Patently Unreasonable?

Is the Decision Patently Unreasonable?

44In reaching its decision the Board noted that while the relevant provisions could be read to bar all actions against “employers”, such a conclusion was incorrect. Rather, the Board was of the opinion that the object, purpose and scope of the Act necessitated limiting the scope of the statutory bar to cases where the employer is engaged in an industry at the time of the accident. Accordingly, in coming to its decision, the Board asked itself four questions:

1. Was the plaintiff a worker within the meaning of the Act?

2. If so, was the injury sustained in the course of his or her employment?

3. Is the defendant an employer within the meaning of the Act?

4. If the defendant is an employer within the meaning of the Act, does the claim arise out of acts or defaults of the employer or the employer’s employees while engaged in, about or in connection with the industry or employment in which the employer or worker of such employer causing the injury is engaged?

45In my view an examination of the Act shows that these were the appropriate questions, and that when the Board answered them as they did, the decision could not be said to be patently unreasonable.

46Although the government may not be an “industry” in the ordinary sense of the term, when interpreted within the context of the workers’ compensation scheme established under the Act, it must be understood to be an industry. Section 2(f) defines an “employer” to be any person, corporation, etc, “having in its service any worker engaged in any work in, about or in connection with an industry”. Thus the concept of being an “employer” is linked to the concept of an “industry.” Section 2(f)(ii) specifically includes the Crown in right of Saskatchewan as an employer. The definition of “employment” is linked with “industry” in a similar manner in s. 2(g). Section 2(k) limits the definition of “injury” to injuries “arising out of and in the course of employment.”

47It is clear that the government is expressly included as an “employer” under the Act and pays premiums into the fund; yet, if the respondents are correct in their submission that regulating is not an “industry,” then it follows that the Act does not apply to the government, because the Act only applies to employers that are engaged in an industry. It also follows that when government employees are injured, their injuries cannot be “injuries,” because they cannot arise out of “employment”, which must be in an “industry”. So they would not be entitled to compensation. Again, under s. 28, only workers who are “in an industry” are entitled to compensation for injuries. Once again, the conclusion is inescapable: the government worker would be denied compensation.

48The majority of the Court of Appeal sought to parse the function of government on the basis of what is called the “dual capacity” theory. According to this theory it is necessary to divide the role of government in accordance with its public duty and private duty. The fact that this dichotomy exists in determining the tort liability of public authorities is cited as justification for equating the regulatory aspect of a government’s function with its public law duty. Furthermore, the respondents submits that it is only with respect to functions that attract a private law duty that the government is an employer.

49I respectfully disagree with this analysis. The public duty versus private duty dichotomy is employed in cases such as Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), and Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228, to determine whether there is a duty of care which can support a private cause of action in tort. In order to do so, it must be possible to engraft on the public law duty a private law duty. The rationale of the distinction is that certain kinds of activities of a public body that are policy oriented do not give rise to a private law duty while operational-type activities do. These principles have no application here. The existence of a private law duty and hence a cause of action is not in issue. It is assumed that there is a cause of action at common law but the question is whether it is barred by s. 168. Government activity in regulating an industry involves both public and private duties. These activities are carried out on behalf of the government by individuals who, for the most part, are employed by the government. The government may be an employer whether the individual is making policy decisions or carrying them out. The fact that some policy-oriented activities are not actionable is not relevant to the issue that was before the Board.

50The Court of Appeal also referred to Mack Trucks Manufacturing Co., supra, a decision of this Court which affirmed the decision of the Ontario Court of Appeal. In that case, Mack Trucks loaned one of its trucks to a Schedule 1 employer. An employee of the latter, while driving the truck, was involved in an accident with an employee of another Schedule 1 employer who was injured. The Ontario Workers’ Compensation Board paid the injured employee compensation under the Act and brought a subrogated claim against Mack Trucks as registered owner of the vehicle. Mack Trucks pleaded that the action was barred by the provisions of The Workmen’s Compensation Act, R.S.O. 1960, c. 437. Lacourcière J. gave effect to this plea and dismissed the action. The Court of Appeal allowed the appeal but stayed the action pending a determination by the Board as to whether the action was barred. The Board determined that the action was not barred and the Court of Appeal rendered judgment in favour of the Board for damages which had been assessed by the trial judge. In its reasons, which were affirmed in this Court, the Court of Appeal held that the determination as to whether an action lay was exclusively within the jurisdiction of the Board. The decision has little, if any, precedential value on the question whether an action is barred. That question was not before either the Court of Appeal or this Court. Neither the correctness nor patent unreasonableness of the Board’s decision was raised in either the Court of Appeal or this Court. With respect to any precedential value of the Board’s decision, it is pertinent that the facts were quite different from the facts of this case. As well, the Board was dealing with a different statute.

51Other cases were cited but they are either irrelevant or clearly distinguishable. The majority of the Court of Appeal in its decision concluded that the appropriate standard of review was correctness. On that basis the majority came to the conclusion that the decision of the Board was wrong. While I respectfully disagree with that conclusion, I hasten to add that I need not find that the Board was correct in order to uphold its decision. Applying the standard which I have determined is appropriate, I conclude that clearly the decision of the Board is not patently unreasonable.

Conclusion

Conclusion

52I would allow the appeal, set aside the judgment of the Court of Appeal and restore the judgment of Scheibel J. The appellants are entitled to costs both here and in the Court of Appeal.

The following are the reasons delivered

Dissenting Reasons of L’Heureux-Dubé J.

53L’Heureux-Dubé J. (dissenting) -- I have read the reasons of my colleagues Justices Sopinka and McLachlin and, although I generally agree with Sopinka J.’s approach to the matter, I nevertheless come to a different conclusion

54The tragic factual circumstances that have lead to these proceedings are irrelevant to the two legal questions at issue. The first has to do with the appropriate standard of review applicable to the determination of the Saskatchewan Workers’ Compensation Board (the “Board”) that an action was barred by The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (the “Act”). The second concerns whether, for the application of the Act and the statutory bar therein, a distinction can be drawn between the government of Saskatchewan acting in its capacity as employer and the government qua regulator. I will address these two issues in turn.

The Standard of Review

55I agree with my colleague Sopinka J. that this matter should be determined in conformity with the functional and pragmatic approach set forth in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048. I would simply add the following precision. When applying this approach, the emphasis should be not on the legislative intent behind the privative clause, but rather on the general intent underlying the legislative scheme as a whole. Since, as a matter of constitutional law, a legislature may not, however clearly it expresses itself, protect an administrative body from review on matters of jurisdiction (Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234), it also cannot be left to decide freely which matters are jurisdictional and which come within the Board’s exclusive jurisdiction. Hence, as Sopinka J. notes in his reasons, even if the wording of ss. 22 and 168 of the Act may appear conclusive, the analysis must be pushed further. In doing so, however, my colleague comes to the conclusion that the question submitted to the Board was within its exclusive jurisdiction. It is with this finding that I disagree.

56Applying the functional and pragmatic test to the present case, I conclude that the question as to whether an action is barred by the Act (s. 168) may or may not be within the Board’s exclusive jurisdiction depending on the precise nature of the question and its relation to the Board’s expertise. While I agree that the Board is an “expert tribunal” and has exclusive jurisdiction to determine, for instance, whether someone is an employer within the meaning of the Act, or whether an injury is work-related -- and therefore may in such cases decide exclusively whether an action is barred by the Act (Dominion Canners Ltd. v. Costanza, 1922 CanLII 3 (SCC), [1923] S.C.R. 46; Farrell v. Workmen’s Compensation Board, 1961 CanLII 46 (SCC), [1962] S.C.R. 48) -- I find that the question submitted to the Board in this case is of a different nature.

57The Board was asked to determine if, while the Government of Saskatchewan may not be sued as an employer by reason of s. 44 of the Act, it may, nevertheless, be sued at common law in its capacity as regulator, acting pursuant to The Occupational Health and Safety Act, R.S.S. 1978, c. O-1, as well as The Building Trades Protection Act, R.S.S. 1978, c. B-8. This is a question for which the Board has no special expertise. It essentially involves fundamental issues of tort law and public law, not particular knowledge of work related accidents and the compensation system. In a similar situation, Beetz J. wrote in Bibeault, supra, at p. 1097:

... the concepts of alienation and operation by another are civil law concepts that require no special expertise on the part of an administrative tribunal. They are concepts which do not call on the labour commissioner’s expertise, as would a decision respecting the representative nature of a petitioning association....

58In that case, the question was whether s. 45 of the Quebec Labour Code, R.S.Q., c. C-27, which concerns the survival of the collective agreement in the case of the alienation of an undertaking also applied to a situation of subcontracting. One should note that the answer undoubtedly had an important impact on labour relations and collective bargaining under the Code. Yet, applying the functional and pragmatic test, this Court concluded that the matter did not come within the Board’s exclusive jurisdiction for lack of specific expertise. In my view, the same reasoning applies here in order to distinguish, for instance, a decision of the Board barring an action because an injury has arisen “in the course of an employment” within the meaning of the Act -- and which would fall within the Board’s protected jurisdiction -- from a decision, such as the one in this case, that does not involve the Board’s expertise

59In Pezim v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] 2 S.C.R. 557, at p. 596, Iacobucci J. wrote that it is “necessary to focus on the specific question of law at issue to determine whether it falls within the tribunal’s expertise”. The difficulty I have with my colleague Sopinka J.’s reasons in the present case is that, failing to do so, he treats in the same fashion every situation where consideration might be given as to whether an action is barred by the Act. In so doing, he is led to conclude at para. 42 that any such question must be left to the exclusive jurisdiction of the Board by fear that “[t]he interposition of the courts could ... lead to uncertainty about recovery”, as well as “of employers becoming insolvent as a result of high damage awards”. This may indeed be the risk if we were to decide that every question involving the application of the statutory bar of action fell outside the Board’s exclusive jurisdiction. But this is not what was decided by the Court of Appeal, nor is it what we are asked to decide. The issue here is whether, considering the purpose of the Act and the expertise of the Board, the possibility to draw a distinction between the government in its capacity as employer and the government as regulator, is a question that falls within the Board’s exclusive jurisdiction. In the absence of any special expertise on the matter I find no reason to leave that specific question to the exclusive jurisdiction of the Board.

60Having concluded that the matter is not one that falls within the Board’s protected jurisdiction, it follows that the proper criterion for review should be correctness, not patent unreasonableness.

The Correctness of the Board’s Decision

The Correctness of the Board’s Decision

61I remark at the outset that, had I come to a different conclusion on the issue of the criterion for review, I would perhaps have considered allowing the appeal in the manner suggested by my colleague Sopinka J. However, having found the proper criterion to be correctness, I conclude, like the Court of Appeal, that the Board fatally erred in declaring that any action against the government qua regulator is barred by the Act.

62To decide the matter, it is essential to start from the premise that there is a possible right of action at common law. It is undisputed that the government owes, under certain circumstances, a duty of care, and that this duty may give rise to an action for negligence (Just v. British Columbia, 1989 CanLII 16 (SCC), [1989] 2 S.C.R. 1228; City of Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 S.C.R. 2; Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.)). As the respondents state in their factum at para. 117, “[g]overnmental liability is founded upon the reasonable reliance it engenders in the public when it represents that it will inspect to ensure that a situation is safe for the public and then fails to do so”. The question is, therefore, whether there is something in the Act that should be read as abolishing this particular right of action. I find that there is not.

63The first consideration goes to the wording of the Act. In support of the bar, the Board relies on ss. 44, 167 and 180 which, using similar language, explicitly exclude all rights of action “against the employers”. I do not see how these sections can be of any help in deciding the issue before us. In fact, reliance on these sections simply begs the question as to whether the government can be sued in a capacity other than that of an employer. I find nothing in the Act which expressly bars such a right of action

64The second consideration is whether the purpose of the Act militates against such a right of action. I note here that, in the absence of any provision excluding the common law right of action, the reasons that could serve to justify an implicit exclusion would have to be fairly strong, if not compelling. Reference has been made to the “historic trade-off” between employers and employees that resulted in a no-fault compensation scheme to which employers would contribute on the condition that actions against them by employees would be barred. This argument, however, cannot carry us very far considering the particular issue in this case. Apart from the Government’s obvious concern with possible claims of the kind considered here, I can foresee no reason why employers would complain of such actions and want the regime abolished for that reason. The “historic trade-off”, as it is called, would not be compromised by the possibility of actions against government qua regulator.

65In his reasons, my colleague Sopinka J. expresses concern that acceptance of the dual capacity doctrine would lead to absurd results. At para. 47, he even suggests that to permit actions against government qua regulator may lead to government employees being excluded altogether from the regime. I do not see how this is necessarily so. The respondents do not claim that the government is never an employer, but rather that the government may, in a given situation, be considered as employer with regard to its employees, and yet be considered as a regulator its relationship with others (at least with those of the regulated industry such as the respondents in this case). This may lead to some questions as to the status of government in a particular situation, but these would be questions for the Board to decide as a matter coming within its exclusive jurisdiction.

66After careful examination, I do not find anything in the Act to exclude expressly or implicitly the common law right of action against the government in its capacity as regulator. I would, therefore, dismiss the appeal.

The following are the reasons delivered by

Concurring Reasons of McLachlin J.

67McLachlin J. -- I have read the reasons of Justice Sopinka and Justice L’Heureux-Dubé. I agree with Sopinka J. that the appeal should be allowed, but wish to add these comments.

68The basis of the respondent’s argument is the dual capacity argument: if the government is sued in its capacity of employer, the Workers’ Compensation Board (the “Board”) may exclude actions in courts on the patently unreasonable standard; if the government is sued in its capacity as regulator, then the courts have equal expertise and the Board cannot exclude court actions. This would undermine the power of the Board to determine whether actions are barred. It would introduce uncertainty into the system. Ultimately, it has the potential to undermine the historic trade-off between secure no-fault compensation for all injuries and fault-based recovery in the courts that underlies workers’ compensation legislation. Dual capacity arguments are not difficult to make. They were made in the case at bar with respect to all three defendants, although pursued on appeal only regarding the government. Employers under the Act, whether governmental or non-governmental, may be sued in various capacities -- as lessors, as occupiers, as supervisors and as regulators -- to mention only a few. If the Board, confronted by a dual capacity claim, does not have expertise on matters like the tort liability of a lessor or the law of occupier’s liability, and its decisions to bar such actions can consequently be overruled on a standard of correctness, frequent appeals and collateral court proceedings can be expected.

69These considerations, coupled with the embracive wording of s. 180 of The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1, barring “all rights of action against employers” (emphasis added) convince me that the legislators intended to endow the Board with exclusive power to decide whether employee actions arising from workplace mishaps proceed, regardless of how they may be legally characterized, thus enabling the Board to monitor the system and ensure that the historical trade-off is not undermined. Viewed thus, the question before the Board is whether the facts of the case and the relationship between the parties support the conclusion that the action is barred, not whether there are different ways to characterize legally the action. The Board need not become embroiled in issues of legal characterization. Unless there is no factual basis for the Board’s conclusion that the rights of the parties should be determined exclusively under the workers’ compensation regime, making the Board’s decision to take jurisdiction unreasonable, that decision should stand.

70A similar fact-oriented test for jurisdictional competition in the area of labour agreements was ennunciated by this Court in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, at para. 68: “whether the conduct giving rise to the dispute between the parties arises expressly or inferentially out of the collective agreement between them”. The parallel test for exclusive jurisdiction under the provisions of the Act at issue in this case would seem to be whether the conduct giving rise to the dispute between the parties arises out of the regime established by the Act, having regard to the events giving rise to the claim and the relationship between the parties. I am satisfied that the facts in this case brought the dispute within that ambit.

71I would dispose of the appeal as proposed by Sopinka J.