COURT OF APPEAL FOR BRITISH COLUMBIA
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Citation: |
Canadian Broadcasting Corporation v. Luo, |
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2008 BCCA 335 |
Date: 20080815
Docket: CA035239
Between:
Canadian Broadcasting Corporation
Appellant
(Petitioner)
And
Lijun Luo and Human Resources Development Canada,
Workers’ Compensation Appeal Tribunal and
Workers’ Compensation Board
Respondents
(Respondents)
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Before: |
The Honourable Madam Justice Rowles |
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(In Chambers) |
Oral Reasons for Judgment
| N. Iyer |
Counsel for the Appellant |
| S. Guenther |
Counsel for the Respondent, L. Luo |
| M. Palmer |
Counsel for the Respondent, HRDC |
| T. Martiniuk |
Counsel for the Respondent, WCAT |
| W. Bucci |
Counsel for the Respondent, WCB |
| A. Zwack |
Counsel for the Respondent, Canada Post, Intervenor |
| Place and Date of Hearing: |
Vancouver, British Columbia |
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12 August 2008 |
| Place and Date of Judgment: |
Vancouver, British Columbia |
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15 August 2008 |
[1] ROWLES, J.A.: Canada Post Corporation has applied under s. 10(2)(a) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, for intervenor status in an appeal brought by the Canadian Broadcasting Corporation (“CBC”) from the decision of Mr. Justice Meiklem dismissing the CBC’s petition to quash a decision of the Workers’ Compensation Appeal Tribunal. Mr. Justice Meiklem’s decision is found at 2007 BCSC 971.
[2] The CBC and the Human Resources Development Canada support Canada Post’s application.
[3] The application is opposed by the respondent Lijun Luo. The case authorities that the respondent provided opposing the application are Gateway Casinos LP v. British Columbia Government and Service Employees’ Union, 2007 BCCA 48, 235 B.C.A.C. 248 (B.C.C.A.), Richmond (Township) v. Dha (1991), 47 C.P.C. (2d) 23 (B.C.C.A.); and Schofield v. Minister of Consumer and Commercial Relations (1980), 28 O.R. (2d) 764, 112 D.L.R. (3d) 132, 19 C.P.C. 245 (C.A.).
[4] By way of background, the respondent Lijun Luo was granted a widow’s pension by the Workers’ Compensation Board in 2003 as a result of the death of her husband on August 20, 2002, in a motor vehicle accident. Her husband had been hired by the CBC to transport and host some visitors who had been invited to Vancouver by the CBC, and he was engaged in that task at the time of the accident.
[5] The Workers’ Compensation Board Review Division reversed the decision to grant a widow’s pension but the respondent’s appeal to the Workers’ Compensation Appeal Tribunal was allowed on March 29, 2005. The Tribunal decided that the provincial Workers’ Compensation Board had jurisdiction to decide whether an individual claimant is an “employee” for the purposes of the federal Government Employees Compensation Act, R.S.C. 1985, c. G-5.
[6] The CBC then brought judicial review proceedings in the court below and when those proceedings were unsuccessful, the CBC brought the appeal in which Canada Post now seeks to intervene.
[7] Canada Post is a federal Crown corporation which operates in all provinces and territories of Canada and is a federally regulated employer. According to the affidavit material Canada Post has provided, there are currently over 9,000 Canada Post employees in British Columbia and over 75,000 Canada Post employees nationwide. In addition, Canada Post is said to have approximately 6,700 independent contractors affiliated with its operations and more than 500 in British Columbia which Canada Post does not regard as employees.
[8] In seeking intervenor status on the appeal brought by the CBC, Canada Post’s first submission is that it has a direct interest in the outcome of the proceeding, and that its submissions may be useful or different from those of the parties to the appeal. Canada Post’s second submission is that it represents a public interest on a public law issue and can make a useful contribution to the Court’s consideration of the issues.
[9] The interest Canada Post asserts is that there are three cases affecting Canada Post that are currently pending before the British Columbia Workers’ Compensation Board or the Workers’ Compensation Appeal Tribunal and that this appeal will be determinative of the issue in those cases.
[10] In her written brief, counsel for Canada Post summarized the contents and import of the affidavit of Lyne Cote, the Director of Workers’ Compensation Boards’ Liaison and Reporting Systems for Canada Post, to support her submissions:
4. As noted in the Affidavit of Lyne Cote, Director, Workers Compensation Boards Liaison and Reporting Systems, for Canada Post Corporation, there are several thousand independent contractor relationships established regularly between Canada Post and various contractors, including with replacement contractors (“Replacements”) for rural suburban mail carriers (RSMCs). Nationally, Canada Post has approximately 6,700 independent contractors affiliated with its operations and more than 500 in British Columbia.
5. Replacements are individual contractors chosen by RSMCs to cover their routes when they are absent from work.
6. Under the collective agreement in force between Canada Post and the Canadian Union of Postal Workers, the parties have expressly agreed that Replacements are not considered to be “employees” of Canada Post while performing their work. Until very recently, it had never been found by any statutory tribunal or court that Replacements are employees of Canada Post for any purpose.
7. Canada Post is subject to the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (“GECA”). Under the terms of this legislation employees of federal Crown corporations, as declared by the Minister with the approval of the Governor in Council, shall be provided with compensation for workplace injuries or illnesses at the same rate and under the same conditions as is provided to provincially regulated workers under the workers compensation legislation in the province in which they are normally working. The determination of which employees are considered to be covered by the GECA has historically been determined by a delegate of the federal Minister of Labour.
8. Despite that Replacements are specifically agreed by Canada Post and CUPW not to be employees of Canada Post, the issue of whether Replacements are employees of Canada Post for the purposes of GECA has recently arisen in a number of cases involving provincial workers compensation boards across the country. As described in the Affidavit of Lyne Coté, there are currently five such cases outstanding - three in British Columbia, one in Manitoba and one in New Brunswick. Given the number of Replacements engaged by Canada Post across the country, there will no doubt be more such cases arising in various provinces.
9. In each of the current cases, the provincial workers compensation board in the relevant province has assumed jurisdiction to determine whether the Replacement is an employee of Canada Post for the purposes of GECA. Further, in each of these cases, it is apparent that the decision-maker has based this determination primarily, if not exclusively, on the application of the definition of “worker” in the relevant provincial workers compensation statute.
10. Canada Post has argued in each of these cases that the provincial workers compensation board does not have jurisdiction to determine whether a Replacement is an “employee” under GECA and therefore subject to workers compensation coverage under GECA. Canada Post’s position is that only HRSDC, the federal entity responsible for the administration of GECA, has jurisdiction to determine employee status under GECA.
11. This appeal is the first time that an appellate court has considered this issue. The outcome of this appeal will be determinative of this issue in the three cases affecting Canada Post which are currently pending before the BC Workers Compensation Board and/or BC Workers Compensation Appeal Tribunal. It will also be highly influential in relation to the outcome of the proceedings before the Manitoba Workers Compensation Board and the New Brunswick Workplace Health, Safety and Compensation Commission, as well as similar proceedings which may affect other federal employers across the country.
12. Canada Post therefore has a direct and material interest in the outcome of this appeal, as it will directly determine the outcome of other proceedings on precisely the same legal issue. Canada Post’s interest in the outcome of this case, and its ability to contribute to the issue before the Court, was recognized by the BC Supreme Court in the proceedings below, where Canada Post was granted intervenor status.
[11] As to the assertion that Canada Post represents a public interest on a public law issue, counsel for Canada Post has made the following submission:
13. Further, this is a public law case concerning the interpretation and application of a federal statute affecting the federal government and federal Crown Corporations. The issue concerns which level of government, through its administrative entities, has jurisdiction to determine the scope of coverage of a federal system of workers compensation coverage. This is an issue of public law with important policy considerations and constitutional implications. Canada Post is a significant participant in this federal system who will be strongly affected by the outcome of this case from both a legal and practical perspective, and who can contribute to the Court’s consideration of this public law issue.
14. Canada Post has a strong interest in ensuring that the application of the definition of “employee” under GECA is uniformly applied across Canada and is determined by a single body in relation to all contractors or employees engaged by Canada Post. Canada Post is particularly concerned that vesting jurisdiction in provincial workers compensation boards to determine “employee” status under GECA would create great difficulties for Canada Post both in terms of establishing and regulating its relationships with contractors and employees across the country and in administering those relationships on a national and consistent basis.
15. The effect of the decision of the BC Supreme Court is to create potentially 13 different decision-making bodies across the country who are determining the status of individuals engaged by Canada Post for the purposes of coverage under the workers compensation system established by GECA (as well as in relation to individuals engaged by all other federal Crown corporations). Not only does this situation deprive Canada Post (and other federal Crown corporations) of a single national decision-maker on this very important issue, but, given the experience of Canada Post to date as reflected in the decisions of the provincial boards, this determination is likely to based on or at least strongly influenced by the particular provincial board’s interpretation and application of the status of being a “worker” under its own provincial legislation and thus to vary from province to province. Contractors engaged in one province may thus be considered employees under GECA, and entitled to workers compensation coverage, while those in other provinces are considered to be contractors. This is both legally incorrect under GECA, and practically untenable for a federally-regulated employer such as Canada Post.
16. In Canada Post’s view, the decision of the BC Supreme Court also confers upon provincial workers compensation boards jurisdiction over determining coverage by a federal statute, GECA, and a federal program, which is not and was not intended to be conferred on those boards by the federal government. Labour relations, including occupational health and safety and compensation for workplace injuries is a matter within exclusive federal jurisdiction. The decision under appeal purports to confer some of that jurisdiction on provincial entities in a manner which Canada Post submits is not constitutionally sound.
17. If granted intervenor status, Canada Post’s position will be that provincial workers compensation boards do not have jurisdiction to determine employee status for the purpose of GECA. Canada Post would further take the position that the federal Minister of Labour, through the Minister’s representative HRSDC, has exclusive jurisdiction to determine whether an individual is an employee under GECA.
[12] Canada Post makes the following submissions regarding the usefulness its submissions would have for the Court when the appeal is heard:
19. Canada Post submits that it can provide a useful perspective to this Court which will be of value to the Court in considering the important issues raised by this case. First, Canada Post can provide information to the Court arising from its own experience in dealing with this issue with various provincial workers compensation boards as to how this issue has been dealt with by those boards and the effect on Canada Post’s operations and its ability to regulate its employee and contractor relationships. This will be of value to the Court in assessing whether the situation arising from the decision of the BC Supreme Court was intended by Parliament, as well the impact of the decision below on the operations of generally [sic].
20. Second, Canada Post will bring to the Court’s attention the constitutional implications of the BC Supreme Court’s decision, in terms of the allocation of powers as between the federal government and the provinces in relation to businesses falling within the federal sphere of competence under the Constitution. Canada Post will argue that consideration of the constitutional division of powers strongly favours a finding that exclusive jurisdiction to determine employee status under GECA was intended to and does rest with the federal agency empowered by Parliament to administer GECA.
[13] With respect to the difference in perspective from that of the CBC and the Human Resources Development Canada, Canada Post submits as follows:
21. Canada Post will present a different perspective from that of the other parties supporting the appeal. First, Canada Post can provide the benefit of its own experience in dealing with this issue, which appears to be broader than that of the CBC, as well as the effect of this experience on Canada Post’s operations. Understanding the experience of other federal employers covered by GECA, and the impact on them of the BC Supreme Court’s decision, will be helpful to the Court’s consideration of the policy issues raised by this appeal which in turn will assist in determining the intentions of Parliament under GECA.
22. Second, Canada Post will present arguments based on the constitutional division of powers between the federal and provincial governments, and in particular, federal legislative and administrative authority over employment-related matters for employers falling within the federal sphere of competence, and how this does or should influence the Court’s determination of the issues before it. To Canada Post’s knowledge, these arguments are not being presented by other parties to this appeal.
[14] For the reasons which follow, I am not persuaded that Canada Post’s application ought to be granted.
[15] This is not a case in which Canada Post has a direct interest in the appeal and the fact that Canada Post might be affected by the outcome of the appeal is not sufficient in itself to justify its intervention: Richmond (Township) v. Dha, supra, at para. 12 (Macfarlane J.A. in Chambers).
[16] In my view, Canada Post has not demonstrated that its submissions would be useful or different from those of the parties to the appeal. The issue on the appeal in this case comes down to a question of statutory interpretation. In its submissions, Canada Post seems to be suggesting that by reason of its wide exposure to cases in which the same or a similar issue arise, it is in a better position than the CBC to make all of the arguments that would be helpful to the Court. When the appeal turns on legal argument on a matter of statutory interpretation, there is no reason why counsel for the CBC cannot make the full argument. That seems to be particularly so in this case when, as counsel for the respondent Ms. Luo has pointed out, the same law firm which represents the CBC is also representing the applicant, Canada Post.
[17] Information arising from Canada Post’s “own experience in dealing with this issue with various provincial workers compensation boards” and “the effect on Canada Post’s operations and its ability to regulate its employee and contractor relationships” would not be admissible on the appeal, given the issue that is in contention.
[18] From its submissions, it appears that Canada Post would like to raise and present arguments based on the constitutional division of powers. If that issue is not raised by the parties to the appeal, Canada Post is precluded from doing so: see Court of Appeal Rule 36(5)(b). If the constitutional division of powers is raised as part of the argument on the appeal as a matter of statutory interpretation, I do not doubt that counsel for the CBC can ably present the needed argument.
[19] Finally, I note that on an application for intervenor status, it is important to ensure that the participation of the intervenor in the litigation would not take the litigation away from those directly affected by it or otherwise produce injustice to the parties. In this case, the submissions Canada Post has made on its application suggest to me that it would like to go beyond the issues and positions of
the parties. From its submissions, it appears that Canada Post proposes to locate itself in the litigation as a major federal Crown corporation in addition to the CBC and the federal government itself. While being represented by the same counsel as the CBC would suggest a common position, Canada Post seeks to add an additional opportunity for counsel for the CBC and Canada Post to make argument and take positions on the appeal and that seems to me to hold the potential for procedural unfairness and possible injustice.
[20] The application of Canada Post is dismissed with costs to the respondent Lijun Luo.
“The Honourable Madam Justice Rowles”