2007 BCSC 971 Canadian Broadcasting Corporation v. Lijun Luo

Before: The Honourable Mr. Justice Meiklem
in Chambers

Reasons for Judgment

Counsel for the Petitioner	P.A. Gall, Q.C. A. Zwack
Representative for the Respondent, Lijun Luo	T. Meng
Counsel for Human Resources Development Canada	M. Palmer
Counsel for the Workers Compensation Appeal Tribunal	V.A. Pylypchuk T. Martiniuk
Counsel for Canada Post Corporation Intervenor	M. Taylor
Counsel for Workers’ Compensation Board, Interested Party	S.A. Nielsen
Counsel for Joan Spencer and Canadian Union of Postal Workers, Intervenors	S. Guenther
Date and Place of Trial/Hearing:	December 18, 19 & 20, 2006
	Vancouver, B.C.

INTRODUCTION OF THE ISSUES

[1] The petitioner seeks, by judicial review, to quash the Workers’ Compensation Appeal Tribunal’s (“WCAT”) decision #WCAT-2005-01542 and thereby reinstall the decision of the Review Division of the Workers’ Compensation Board (“WCB”). The essence of the WCAT decision under review is that the WCB does have jurisdiction to determine whether or not an individual claimant is an “employee” for the purpose of the federal statute, the Government Employees Compensation Act, R.S.C. 1985, c. G-5 (the “GECA”). The petitioner’s position is supported by the respondent Human Resources Development Canada (“HRDC”) and Canada Post Corporation, intervenor, and opposed by the other respondents and intervenors.

[2] The parties do not agree on the applicable standard of review and I will address that issue following my summary of the statutory framework and the factual background.

THE STATUTORY FRAMEWORK

[3] In general terms, the scheme set out in the GECA is to provide compensation for employees of the federal government and federal crown corporations who are injured in accidents arising out of employment or disabled by an industrial disease, and for dependents of employees killed by work-related accidents or industrial diseases.

[4] “Employee” is a defined term in the GECA and s. 4(2) of the GECA provides for entitlement of employees or dependents:

… to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen, employed by persons other than Her Majesty, …

[5] The GECA then provides, under s. 4(3):

4(3) Compensation under subsection (1) shall be determined by

(a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty; or

(b) such other board, officers or authority, or such court, as the Governor in Council may direct.

[6] Section 2 of the GECA defines “employee” as follows:

“employee" means

(a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty,

(b) any member, officer or employee of any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada who is declared by the Minister with the approval of the Governor in Council to be an employee for the purposes of this Act,

(c) any person who, for the purpose of obtaining employment in any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada, is taking a training course that is approved by the Minister for that person,

(d) any person employed by any department, company, corporation, commission, board or agency established to perform a function or duty on behalf of the Government of Canada, who is on leave of absence without pay and, for the purpose of increasing his skills used in the performance of his duties, is taking a training course that is approved by the Minister for that purpose, and

(e) any officer or employee of the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Ethics Commissioner;

[7] It is noteworthy and significant to the arguments of the parties to this judicial review that the definition of “employee” in the GECA is very distinct from the definition of “worker” in the Workers Compensation Act, R.S.B.C. 1996, c. 492 (“WCA”), which is as follows:

"worker" includes

(a) a person who has entered into or works under a contract of service or apprenticeship, written or oral, express or implied, whether by way of manual labour or otherwise;

(b) a person who is a learner, although not under a contract of service or apprenticeship, who becomes subject to the hazards of an industry within the scope of Part 1 for the purpose of undergoing training or probationary work specified or stipulated by the employer as a preliminary to employment;

(i) a municipality, a regional district, an urban area, an improvement district, a board of school trustees, a francophone education authority as defined in the School Act, a library board or a parks board, or

(ii) a board or commission having the management or conduct of work or services on behalf of any of the bodies in subparagraph (i);

(d) in respect of the industry of mining, a person while the person is actually engaged in taking or attending a course of training or instruction in mine rescue work under the direction or with the written approval of an employer in whose employment the person is employed as a worker in that industry, or while, with the knowledge and consent of an employer in that industry, either express or implied, he or she is actually engaged in rescuing or protecting or attempting to rescue or protect life or property in the case of an explosion or accident which endangers either life or property in a mine, and this irrespective of whether during the time of his or her being so engaged the person is entitled to receive wages from the employer, or from any employer, or is performing the work or service as a volunteer;

(e) further, in respect of the industry of mining, a person while he or she is engaged as a member of the inspection committee, appointed or elected by the workers in the mine, to inspect the mine on behalf of the workers;

(f) an independent operator admitted by the Board under section 2 (2); and

(g) a person deemed by the Board to be a worker under section 3 (6).

It is to be noted that this definition of worker is open-ended by virtue of the use of “includes”.

THE FEDERAL/PROVINCIAL AGREEMENT

[8] Her Majesty the Queen in right of Canada, as represented by the Minister of Labour, entered into a written agreement with the WCB dated the 7^th day of June, 1996, with the stated purpose of defining the respective responsibilities and obligations of the parties with regard to employees of the federal government and certain crown corporations subject to the GECA usually employed or deemed to be usually employed in British Columbia. The agreement is stated to be effective from January 1, 1996 to December 31, 1997, and provides that it will be automatically renewed for one year periods thereafter (I will refer to this agreement hereafter as “the federal/provincial agreement”).

[9] One of the preambles to the agreement refers to and paraphrases s. 97 of the WCA (British Columbia) to the effect that the WCB may exercise any power or duty conferred or imposed on it by or under a statute of Canada or agreement between Canada and the province.

[10] Paragraph 4 of the agreement provides:

The Board shall adjudicate claims from employees involved in an accident or affected by an industrial disease, and the responsibilities of the Minister and the Board are specified in Appendix “A”.

[11] Appendix A of the agreement reads as follows:

APPENDIX “A”

1. BOARD

1.1 The Board shall adjudicate claims from employees and pay and provide compensation.

1.2 Before adjudicating a claim not forwarded to the Board by the Minister’s Representative, the Board shall forward to the Minister’s Representative a request, in writing, for information on employee status.

1.3 The Board shall take no action on any claim for compensation that has been stamped “election form required” by the Minister’s Representative.

1.4 Where it is probable that an election to sue shall be made by an employee, the Minister’s Representative may retain the Employer’s Report of Accidental Injury or Occupational Disease for a period of not more than two (2) months after receiving it, at which time the claim shall be forwarded to the Board for the establishment of a claims record.

1.5 The Board shall provide the Minister’s Representative with a copy of every appeal decision.

1.6 For each subrogated third-party claim, the Board shall provide the Minister’s Representative with a summary of benefits by the Board and such other information as the Minister’s Representative may request.

1.7 The Board shall advise the Minister’s Representative of any changes to Board procedures and information systems which will directly affect the adjudication of GECA claims e.g. provincial legislation, level of benefit, etc.

2. MINISTER’S REPRESENTATIVE

2.1 In processing claims the Minister’s Representative shall use its best efforts to ensure that all employers submit an Employer’s Report of Accidental Injury or Occupational Disease to the Minister’s Representative within three days of occurrence. The Minister’s Representative shall process claims and ensure that the Board receives the report within 48 hours.

2.2 Where the employer has not submitted an Employer’s Report of Accidental Injury or Occupational Disease but where the Board or an employee has notified the Minister’s Representative of an accident or disease or an allegation of an accident or disease, the Minister’s Representative shall use its best efforts to forward the claim for processing within 72 hours of notification.

2.3 On a semi-annual basis, the Minister’s Representative shall provide the Board with a registry of all employers subject to the GECA.

2.4 The Minister’s Representative shall use its best efforts to respond within 72 hours to all Board requests for subsequent information required to process a claim.

2.5 The Minister’s Representative shall ensure that all employers to which the GECA applies are aware of the terms of this Agreement. It shall issue guidelines to employers regarding the handling of claims with the Board.

[12] “Minister’s Representative” is defined as “the Representative authorized by the Minister [of Labour] to give effect to this agreement.” The evidence is murky on the question of who the Minister of Labour has authorized as his representative, if in fact there was any formal authorization, but the submissions appear to agree that in practice the Regional Managers of HRDC exercise this function.

FACTUAL BACKGROUND OF THE COMPENSATION CLAIM IN THIS CASE

[13] The respondent, Lijun Luo’s husband, Xiao-Ping Meng, was killed in a motor vehicle accident in Richmond, British Columbia on August 20, 2002. In September 2002, Ms. Luo made a claim to the WCB for a spousal survivor pension pursuant to the WCA. Her entitlement to this pension was dependent upon Mr. Meng being an employee of the Canadian Broadcasting Corporation (“CBC”). A case manager of the WCB, S.M. Cook, wrote to CBC on October 31, 2002, seeking information regarding Mr. Meng’s employment status at the time of the accident. It appears, from a file log entry made by Ms. Cook in mid-October, that Ms. Cook understood that the adjudication of benefits to be undertaken by the WCB included determining the employment relationship.

[14] Case manager’s Cook’s inquiries ascertained that Mr. Meng’s primary employment was as chief editor of a Chinese newspaper, but at the time of the accident he was in the course of transporting two Chinese visitors who had been invited to Vancouver by CBC Radio. Mr. Meng had previously performed freelance production work for CBC and had been hired by CBC to transport and host the visitors, using his own vehicle for a remuneration that had not yet been determined.

[15] CBC responded to case manager Cook advising that they had reported the accident to HRDC and provided all the necessary information, and had received HRDC’s decision that Mr. Meng was an independent contractor and not an employee. As such, CBC said it would not be filing the Form 7 which WCB had forwarded to them for completion.

[16] On November 13, 2002, not yet having received CBC’s letter, Ms. Cook sent a second letter to CBC’s human resources department requesting that they provide details of the accident to Ms. Sylvester, the HRDC Regional Manager, in order that Ms. Sylvester could “advise the WCB regarding the worker’s status under the [GECA].” CBC’s Human Resources Manager replied by letter dated November 18, 2002, advising Ms. Cook that the CBC had reported to the appropriate safety officer at HRDC as required by the Canada Labour Code, and having received the health and safety officer’s ruling that Mr. Meng was a contractor and not a casual employee, CBC considered the matter closed.

[17] On November 29, 2002, CBC’s Senior Manager of Safety and Environment confirmed, in a letter to Ms. Sylvester of HRDC, the contents of an oral discussion between them to the effect that CBC took the position that it had provided all relevant information to HRDC, had received HRDC’s decision and would not be completing or providing to HRDC the Form 7 forwarded by the WCB case manager.

[18] On November 21, 2002, case manager Cook wrote to Ms. Sylvester, the HRDC Regional Manager, referencing an earlier telephone conversation and formally requesting information on Mr. Meng’s employment status. She set out the paragraph 1.2 from the Appendix to the agreement between the Federal Minister of Labour, which I will set out again for convenience:

Before adjudicating a claim not forwarded to the Board by the Minister’s Representative, the Board shall forward to the Minister’s Representative a request, in writing, for information on employee status.

[19] Ms. Cook commented that she understood that the HRDC’s Regional Manager, and not CBC, was considered to be the Minister’s Representative. She also commented that the prior determination by HRDC’s Occupational and Safety Officer did not address all the factors in the common law tests used to determine the independence of a contractor. She enumerated seven factors not considered. Ms. Cook reminded Ms. Sylvester of the terms of the agreement, referring to “best efforts” to respond within 72 hours to the WCB’s requests for information.

[20] No response was received to the November 21, 2002 request or to a December 4, 2002 follow-up request. On February 17, 2003, a letter, signed for some reason by a different WCB case manager, wrote to CBC to advise that the claim by Mr. Meng’s widow had been accepted and some lump sum benefits and a monthly pension were awarded. The letter also advised of the present value of the awards being charged to the claim, which was $217,539.16.

[21] On February 19, 2003, a Supervisor of the Service Centre Team, Assessments of the WCB made a log entry in the WCB claim file, expressing her understanding that the federal government made the final decision on employment status under the GECA. On the same date, the following log entry by Ms. Cook explained her reasoning and her decision to allow the claim:

REGARDING: Employer coding

I note the log entry from the Supervisor, Service Centre Team, Assessments, dated February 19, 2003. She has advised that the Federal Government makes the final decision on an individuals employment status, and has referred to Policy Item #8.10 of the Rehabilitation Services and Claims Manual. I have reviewed the policy as it outlines the Government Employees Compensation Act, and I have also reviewed that ACT. In particular Section 2(a) which describes an “employee” of the federal government as “any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty.” As outlined in my previous log entries, I have asked the Federal Government’s Minister for a ruling on this several times, and the only response I have received is that from the Human Resources Department of CBC, who has said that as he was “on contract” he was not an employee. There is no application of the common-law tests applied to determine the difference between an employee and a contractor, and when I applied those tests, I determined that in fact he was a “worker” under the Workers’ Compensation Act. As the Minister did not comply with the agreement and provide the necessary information with [sic] 72 hours of my request, I adjudicated the claim based on the information on file, after several discussions with our Legal Department. My most recent discussion with Mr. Gerry Massing is documented in my log entry of January 21, 2003. As I still had not received a response from the Minister’s representative, well beyond the 72 hour time frame, I adjudicated and accepted the claim as MR. Meng was considered a “worker” for the purposes of the Workers Compensation Act, and his fatal accident arose out of and in the course of his employment as required by Section 5(1) of the Act.

The Government Employees Compensation Act grants “employees” of the Federal Government usually employed in the province the same rights to compensation as non-Federal Employees. In the absence of a determination from the Minister responsible for the G.E.C.A., I determined that Mr. Meng was an employee and accepted the claim accordingly. I provided them with the usual form letter advising them of the costs of the claim, however, I feel it is also reasonable to provide a decision letter advising of the reasons the claim is accepted as this is an appealable decision.

[22] It is clear from this entry that Ms. Cook’s reasoning was essentially that Mr. Meng qualified as a “worker” under the WCA, and in the absence of a determination from the Minister responsible for the GECA as to the status as an employee, she determined that he was an employee under the GECA.

[23] In a letter the following day, February 20, 2003, to Ms. Sylvester, the HRDC Regional Director, Ms. Cook reiterated the reasons for her decisions as follows:

Enclosed are copies of my correspondence dated November 21, 2002 and December 4, 2002 for your reference.

To date I have not yet received a response, however I understand you have had conversations with our Legal Department.

In order to reach a conclusion, I consulted the Workers’ Compensation Act, the Government Employees Compensation Act as well as the policy outlined in the Rehabilitation Services & Claims Manual, Volume 1.

In particular, policy item no. 8.10 of the Rehabilitation Services & Claims Manual deals with federal government employees. It outlines the definition of employee given in Section 2 of the Act. The policy manual states in part:

‘This definition is wide enough to cover most federal employees whether employed directly by the government or by some statutory body.’

Although I received a copy of the correspondence from the Health and Safety Officer of HRDC, I did not feel that this was sufficient to allow me to conclude that Mr. Meng was in fact a contractor and not an employee of CBC.

However, as the Health and Safety Officer is not charged with the administration of the Government Employees Compensation Act, I requested input from your department. In the absence of a determination from your department, I obtained information from the deceased’s son with regards to Mr. Meng’s work activity on the day of his death, as well as his working relationship with the CBC.

Information from the CBC, dated August 29, 2002 outlines that Mr. Meng was retained on short-term assignments for the purposes of completing an audiotape broadcast for Radio Canada’s Chinese radio service. CBC advises that Mr. Meng was not an employee but was engaged as an independent contractor and his freelance work was established and carried out on a verbal basis. There was no individual contract and Mr. Meng was listed as a freelance contributor for CBC. A Radio Canada employee, who had the delegated power of assignment, and was able to verbally assign a task without a written contract, contacted him and asked him to provide transportation for two Chinese visitors and advised that he would be paid a lump sum, to be determined later, for these services. It was anticipated that the entire task would take no more than a few hours and that the likely fee would be approximately $200.00, the same amount he would have been paid for his radio segment work.

It has been confirmed that while performing this task, Mr. Meng was involved in a fatal motor vehicle accident.

Section 1 of the Workers’ Compensation Act provides the definition of employer. It is defined as every person having in their service under a contract of hiring or apprenticeship written or oral or expressed or implied, a person engaged in work in or about an industry.

The Act also defines a worker as a person [sic] has entered into or works under a contract of service or apprenticeship written or oral, expressed or implied, whether by way of manual labour or otherwise.

Based on the information provided by the CBC, it is apparent that Mr. Meng was a worker and the CBC was his employer as he had been promised a payment, albeit orally for the service he was providing.

Section 5(1) of the Workers’ Compensation Act outlines that where a personal injury or death arising out of and in the course of the employment is caused to a worker, compensation as provided by this part must be paid by the Board out of the accident fund.

In determining if Mr. Meng’s fatal injuries arose out of and in the course of his employment, I consulted policy item no. 14 which deals with ‘arising out of and in the course of employment’ as it was apparent that Mr. Meng was in the process of doing something for the benefit of his employer, and it occurred in the course of action taken in response to instructions from the employer, and the worker was to receive payment from the employer, it is my conclusion that the injury in fact arose out of his employment and is acceptable under the Workers’ Compensation Act.

Please call me if the information in this letter is unclear or if you wish to discuss this claim. If you have other information which may affect my decision, please call me at 604-279-7460 (direct line) or toll free in B.C. at 1 888-967-5377, extension 7460.

This decision may be appealed within 90 days from the date of this letter. Employer appeals for relief of costs must be made within 30 days from the date of this letter. Please see the attached appeal pamphlet for further information.

[24] There is a suggestion in the materials before me that Ms. Sylvester had, in oral conversation, explained to WCB that she could not respond to Ms. Cook’s formal request due to the refusal of CBC to provide a Form 7, which formed an integral part of the established practice of communicating the HRDC decision on status to the WCB.

[25] Two facts of significance are apparent from this examination of the history of the adjudication of this claim. The first is that, although the WCB claim’s officer eventually adjudicated the question of employee status by default in the absence of a response from the HRDC officer that WCB considered the Minister’s Representative, there appears to have been a prevailing practice of complete deference to the federal government on the question. The second matter is that Ms. Cook’s determination proceeded on the basis that there was no functional difference between the definition of “worker” in the WCA and the definition of “employee” in the GECA. The latter point is not related to the jurisdictional question that this court is reviewing and, of course, the correctness of the case manager’s decision was not examined on appeal because the Review Division decided that the WCB does not have jurisdiction to determine employee status in respect of claims under the GECA.

THE DECISION OF THE REVIEW DIVISION OF THE WCB

[26] CBC requested a review of the WCB decision that Mr. Meng was an employee of the federal government, arguing first that the WCB did not have jurisdiction to accept the claim after the HRDC Health and Safety officer made a “binding ruling” as the Minister’s Representative, and alternatively, if it did have jurisdiction, the decision was wrong. The review was conducted by a single review officer who concluded that the WCB did not have jurisdiction to determine employee status under the GECA, and that the determination of employee status was within the exclusive jurisdiction of the federal government.

[27] The review officer’s reasons referenced several court decisions and decisions of the former WCB appeal division, and the Ontario Workers’ Compensation Appeals Tribunal on other jurisdictional questions arising under the GECA and set out the review officer’s analysis in bulleted paragraphs. The following portions of the decision set out the review officer’s reasoning:

· In Appeal Division Decision #93-1759, the panel clarified that, while federal employees are entitled to compensation “ at the same rate and under the same conditions” as workers of the province, this does not mean that federal employees come under the Act. Rather, federal employees receive workers’ compensation benefits under the GECA. Therefore, a federal employee is not a “worker” under the Act but is an “employee” under the GECA. The panel went on to adopt the reasoning in Appeal Division Decision #93-0502.

· I agree that although the GECA referentially incorporates the Act, this incorporation is to be construed narrowly. I also agree that section 4 does not incorporate the provincial legislation n its entirety. The incorporation is limited to “compensation at the same rate and under the same conditions” as provided by the provincial scheme along with provisions of the provincial legislation that are reasonably incidental to the question of compensation.

· The WCAT1 referred to Ontario WCAT Decision No. 696/88 in the course of its decision-making. In that decision, the panel said:

… When one reads GECA in its entirety, it becomes apparent that the Act purports to determine who shall have access to entitlement under the Provincial scheme and who shall not. Having made that determination, the Act, by the words of section 4, gives over to the province the power to determine the amount and conditions of entitlement in accordance with the terms of the Provincial legislation.

…

· The WCAT1 also said that on questions of jurisdiction, each section must be judged on the basis of the relationship to the general language of the incorporation. Whether a provision is reasonably incidental to the rates and conditions of compensation must be made with a view to considering whether the resulting compensation system can function as a fair, comprehensive, functional and balanced whole without it.

· I have also considered Morrison (Estate) v. Cape Breton Development Corp., 2003 NSCA 103. In Morrison, the Court found that uniformity of treatment required that federal workers be treated similarly to provincial workers by allowing federal workers access to the evidentiary presumption available in the provincial Act. The case involved virtually identical wording of the causation/entitlement provision in both GECA and the Nova Scotia’s worker’s compensation legislation in relation to the “arising out of and in the course of” provisions of the respective Acts. To incorporate the evidentiary presumption into the GECA was, in the Court’s view, “reasonably incidental” to a condition and not otherwise in conflict with the GECA. This is to be distinguished from the case at hand, in which the meaning of “employee” in the GECA and “worker” in the Act are very different and it is not apparent in light of these differences, that uniformity is appropriate.

· It is interesting to note that although the Court in Morrison did not specifically consider whether a provincial board had jurisdiction to consider “”employee” status, the Court said at paragraph 54:

While the point of entry [of the provincial WCA into the GECA] might be between s. 3 and s. 4, after GECA has defined the federal employees to which it applies, the process really begins when the claim is filed. (emphasis added)

· I am unable to characterize the determination of employee status as “compensation” under section 4 of the GECA and as defined by section 2 of the GECA. I have also considered whether the determination of employee status is reasonably incidental to the question of compensation. However, I would not characterize such a key decision as merely “incidental”. Rather, it is a fundamental preliminary issue that must be resolved before entitlement to compensation can even be considered.

· Section 97 of the Act confers jurisdiction on the Board to perform any duty imposed on it under a statute of Canada or under an agreement between Canada and the Province. I can find no authority for the British Columbia Board to make determinations on the substantive provision found in relation to the definition of “employee” in the GECA. However, once that determination is made, section 4 of the GECA gives over to the Board the power to determine the amount and conditions of entitlement in accordance with the terms of the Act.

· Furthermore, section 1.2 of the Appendix to the agreement states as follows:

Sections 2.1 and 2.2 of the Appendix underscore this by apparently leaving the decision of employee status to the Minister’s designate. In any event, even if the GECA does not designate a decision-maker; this does not mean that the decision making should devolve to the Board.

· The GECA has a very detailed and specific definition of “employee”. If Parliament had intended the Board to use its expertise in the preliminary step of determining employee status, it would have referentially incorporated the respective provincial definition (i.e. “worker”). However, it appears that instead, Parliament left that decision to a single consistent decision-maker, the HRDC.

· Overall, I am of the view that the detailed definition of “employee” in the GECA, as well as the creation of an administrative framework requiring this issue is determined by HRDC, demonstrate that “employee” status is an issue that the Federal Government intended to reserve to their exclusive jurisdiction. I am therefore of the view that if the Board purported to determine “employee” status, this action would be in direct conflict with the GECA.

· The determination of employee status under the GECA is therefore a matter that is determined by the Federal Government rather than the Board. In this case, a ruling has been made that Mr. M was an independent contractor and not an employee under the GECA at the time of the fatality and that determination is binding on the Board.

THE DECISION OF THE WCAT

[28] The WCAT decision under review is dated March 29, 2005. The single member WCAT panel proceeded on the basis of written submissions and received new evidence in the form of statements from employees of HRDC and WCB in respect of the prevailing practices of those bodies in handling claims and reports of injuries, more specifically the handling of Form 7, which is an employer’s report of injury.

[29] The WCAT considered that it had two issues before it. The first issue was framed as “Does the Board have jurisdiction to determine the status of an individual working for a federal crown corporation, as to whether the individual is an employee under GECA or an individual contractor?” The second issue was framed as “Does a person working for a federal body have a right to request a review or appeal under the act [the WCA] of an adverse decision regarding whether he or she is an employee under the GECA?”

[30] The WCAT answered both these questions in the affirmative.

[31] Parenthetically I observe that it is not clear why the WCAT posed the second question. The Review Division decision that had been appealed to WCAT did not consider that question and, of course, the review had been requested by the employer, CBC, not an employee. The Review Division decision was not a finding that the Review Division lacked jurisdiction to review the Board’s determination, or, in the hypothetical posed by the WCAT, an HRDC ruling adopted by WCB, but rather that the Board lacked jurisdiction to determine employee status. I cannot find any words in the Review Division decision that could have given rise to the following statement in the WCAT decision:

Accordingly, I disagree with the decision by the review division which found that a determination of employee status was within the exclusive jurisdiction of the federal government and was insulated from review by the Review Division.

[32] There is a distinct issue that could arise on different facts as to whether the WCA review and appeal provisions are available to federal employees and employers under the GECA in respect of determinations of employee status by the Minister’s Representative, but that certainly did not arise in this case, where HRDC failed to make any determination for the purposes of the claim.

[33] This judicial review is concerned only with the WCAT decision on the first question.

[34] In considering that question, the WCAT reviewed several appellate decisions including Thompson v. Nova Scotia (WCAT) [2003] N.S.J. No. 39, (2003) 223 D.L.R. (4^th) 193, Morrison (Estate) v. Cape Breton Development Corp [2003] N.S.J. No. 353, and Canada Post v. Smith [1998] O.J. No. 1850. Following a review of the cases, WCAT noted:

In summary, appellate courts have found that federal employees claiming workers’ compensation benefits are entitled:

· to the benefit of statutory presumptions which affect the initial adjudication of the employee’s eligibility as well as statutory provisions concerning the amount of compensation,

· to the same rights of appeal afforded provincial workers, and,

· to non-monetary forms of compensation

[35] The WCAT found the following passage (¶54) from Morrison supportive of the conclusion that the Board has jurisdiction to inquire into and adjudicate a claim by an individual claiming to be an employee under s. 2 of the GECA:

Workers made eligible by the GECA definitions in s. 2, and not excluded by s. 3, who have, or consider that they have, suffered accidents or illness, or the dependents of such workers, are entitled to file claims for compensation. The filing of the claim engages the provincial legislation. The administrative agreement makes it clear that all claims are to be investigated and reviewed for eligibility by the Workers’ Compensation Board. That is, Workers’ Compensation Board is clothed with jurisdiction over the federal worker from the moment the claim is filed. The Board of course is a creature of provincial statute. Its powers of investigation and review, like all the other powers it exercises, must be found within, and only within, the provisions of the provincial enactment. Once the provincial legislation is engaged, in my view it is engaged for all purposes of GECA and the Workers’ Compensation Act.

[36] The WCAT found persuasive the worker’s adviser’s argument that the determination of employee status is reasonably incidental to a condition governing compensation under the laws of the province, and is not otherwise in conflict with the GECA.

[37] The WCAT also found support for jurisdiction on status determination in the federal/provincial agreement, as follows:

Item #1.2 requires the Board to request “information” on employee status from the Minister’s Representative, before adjudicating a claim not forwarded to the Board by the Minister’s Representative. This provision might have been intended to exclude or remove the Board’s jurisdiction to adjudicate the issue of employee status. Alternatively, it may simply have been intended to ensure that the Board did not proceed with an adjudication, prior to affording the Minister’s Representative the opportunity to provide input to assist the Board in its adjudication.

In my view, the word “information” is more in keeping with this latter interpretation. The word “information” is a somewhat neutral term, comparable to the term “evidence”. If the FG had intended to exclude the Board’s jurisdiction, it could have used a stronger term such as “decision” or “determination”. Having regard to the imperative language utilized in item #1.3, the FG could also have included a prohibition on the Board considering a claim without a determination from the Minister’s Representative that the individual was an employee. The wording of the Agreement appears to leave it open to the Board to adjudicate issues of employee status.

[38] The WCAT’s final reasoning on the jurisdictional question is summarized in the following paragraphs:

It is evident from the Court decisions set out above that similar issues have been the subject of considerable dispute. I take guidance from the recent Court decisions cited above, which support a purposive and liberal interpretation of the relevant statutory and contractual provisions aimed at ensuring equality of treatment for individuals claiming compensation under GECA. To my mind, it would seem unfair were the widow’s application for compensation to be denied on the basis of a determination that Z was not an employee, with no opportunity for input from her, and no mechanism for seeking review or appeal of the determination apart for an application for judicial review. I am not persuaded that the provisions of GECA and the Agreement require such a result. I do not consider that such a situation could be equated with a right of persons working for the FG to receive compensation “at the same rate and under the same conditions” as workers in the Province. Adopting a purposive interpretation of this wording, I find that persons performing work for the federal government should be given access to the same avenues of review and appeal provided under the Act, on issues relating to the nature and extent of compensation payable. I find this includes issues relating to initial eligibility for compensation, as well as the question as to whether the person is an employee within the meaning of section 2 of GECA. To the extent this decision involves an expansion of the meaning of the phrase “entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed”, as set out in section 4(2) of GECA, I find this is in keeping with the analysis provided in the recent Court decisions cited above. This interpretation is also supported by section 12 of the federal Interpretation Act, R.S. 1985, c. 1-21, which provides:

Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

A similar provision is contained in section 8 of the provincial Interpretation Act, R.S.B.C. 1996, ch. 238.

I find that the rights of review and appeal, which are afforded provincial workers under the Act in connection with determinations of their status and eligibility for compensation, are reasonably seen as incidental to a condition governing compensation under the law of the province. I further find this interpretation is not otherwise in conflict with GECA. Accordingly, I find that it was within the Review Division’s jurisdiction to determine whether or not Z was, at the time of his death, an employee under GECA. I agree, in this regard, with the opinions provided by the Regional Manager for the federal Inquiry Compensation program, and by the Board’s associate general counsel. The widow’s appeal is allowed on this jurisdictional issue.

The workers’ adviser expressly requested that WCAT refrain from proceeding to address Z’s status, if the widow’s appeal were successful. She noted that the Act provides for two levels of review and appeal, and the issue of Z’s status has not yet been addressed by the Review Division in view of its conclusion on the jurisdictional issue. This position was confirmed in the further submissions by a workers’ adviser on March 3, 2005. Accordingly, I consider it appropriate to restrict my decision to this jurisdictional issue (even if it is within WCAT’s jurisdiction to proceed to address the merits). No request has been made for reimbursement of expenses in this appeal and none are awarded.

Conclusion

The Review Division decisions are varied pursuant to section 253(1) of the Act. The employer’s requests for review of the February 17 and 20, 2003 decisions by the case managers are returned to the Review Division for consideration on the merits. The issue as to whether Z was, at the time of his death, an employee under GECA, is an issue which the Review Division has jurisdiction to determine. It was not necessary that I determine whether Board officers are obliged to make their own initial adjudication on status, or whether they may simply adopt the advice of the authorized representative for the FG’s Injury Compensation Program.

THE STANDARD OF REVIEW ANALYSIS

[39] The parties do not agree on the applicable standard of review.

[40] Section 245.1 of the WCA provides that s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”) applies to the WCAT. The affect of the applicable portions of s. 58 of the ATA is that the WCAT is to be considered an expert tribunal in relation to all matters over which it has exclusive jurisdiction, and, in respect of matters “over which it has exclusive jurisdiction under a privative clause” its finding of fact or law, or an exercise of discretion must be reviewed on the “patently unreasonable” standard. The correctness standard applies to all other matters except justness and fairness issues to which a fairness standard applies.

[41] CBC submits that the scope of the WCB jurisdiction to make determinations of employee status for the purposes of the GECA, and in the context of the federal/provincial agreement are not matters over which the WCAT “has exclusive jurisdiction under a privative clause,” and that the applicable standard of review is correctness.

[42] While strictly speaking the privative clause applicable to the WCAT in the WCA is s. 255(1), the matter of exclusive jurisdiction is supplemented by the provisions of s. 254. Sections 254 and 255(1) read as follows:

254. The appeal tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined under this Part and to make any order permitted to be made, including the following:

(a) all appeals from review officers' decisions as permitted under section 239;

(b) all appeals from Board decisions or orders as permitted under section 240;

(d) all other matters for which the Lieutenant Governor in Council by regulation permits an appeal to the appeal tribunal under this Part.

255.(1) Any decision or action of the chair or the appeal tribunal under this Part is final and conclusive and is not open to question or review in any court.

[43] Counsel for CBC submitted that s. 58 of the ATA applies. Counsel for the WCAT suggests that it is arguable that s. 58 of the ATA does not apply in this case. On common law principles, the GECA is also an enabling act for the WCB and WCAT and the GECA contains no privative clause unless, as counsel points out, one views the privative clause in the WCA as necessarily incorporated into the GECA along with the delegation of powers to the provincial boards.

[44] On this point I was referred to Canada Post Corp. v. Connolly, [2006] N.S.J. No. 4 where the Nova Scotia Court of Appeal held that provincial privative protection applied when WCAT was interpreting a section of the provincial WCA incorporated into the GECA, but in Connolly the court distinguished a line of cases which held that in interpreting the GECA itself, provincial boards are not protected by their provincial privative clauses. This line of authority has not been overruled.

[45] I find that it is illogical to view the GECA as incorporating the privative clauses in the WCA for the purposes of protecting the WCAT’s interpretation of the GECA itself. The provincial legislature lacks the constitutional authority to grant exclusive jurisdiction over a federal matter. Simple implied incorporation of the privative clauses from the WCA, without more, could not amount to a grant of “exclusive jurisdiction under a privative clause” in respect of the federal matter (to quote the operative phrase in s. 58(2)(a) of the ATA).

[46] Counsel for the WCAT suggests that if s. 58 does not apply to interpretations of the GECA, the standard of review analysis proceeds on the common law four-point pragmatic and functional approach emanating from U.E.S. Local 298 v. Bibeault, [1998] 2 S.C.R. 1048 and prescribed by Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226. The petitioner acknowledges that even applying s. 58 of the ATA, the four-point Bibeault analysis is still necessary to determine the question of exclusive jurisdiction. This was confirmed in United Brotherhood of Carpenters and Joiners of America v. B.C. (L.R.B.), [2006] B.C.J. No. 1757 (BCCA).

APPLYING THE PRAGMATIC AND FUNCTIONAL APPROACH

[47] I will apply this approach with the dual purposes of ascertaining legislative intent on the question of exclusive jurisdiction (in the event that s. 58 should be applied) and also to determine the appropriate standard of review without applying s. 58 of the ATA.

(a) Is there a Privative Clause?

[48] CBC points out that there is no privative clause in the GECA and argues that the privative clause in s. 255 of the WCA does not protect the WCAT when it is interpreting the GECA. Although this position seems inconsistent with the petitioner’s submission that s. 58 of the ATA applies because of s. 245.1 and s. 255 of the WCA, I agree that the WCAT’s determination of the relative jurisdiction of the HRDC and the provincial WCB is not protected by the provincial legislation’s privative clause. However, I also agree with the respondents that the absence of a privative clause in the GECA is not a highly significant matter implying low deference, nor does it assist in defining the WCAT or WCB jurisdiction in the same way that the presence of a privative clause might.

[49] I do not agree that a privative clause in the GECA would necessarily be illogical in the absence of a federally created adjudicative body, since a privative clause could be stated to apply to the provincial bodies to whom authority is delegated. However, given that parliament is deemed to be aware of the provincial privative clauses, it would certainly be in keeping with the expressed purpose of the GECA to avoid a redundancy or potential conflict which could result if there was an overarching privative clause in the GECA.

(b) What is the WCAT’s Level of Expertise Relative to the Reviewing Court?

[50] The WCAT, as a component part of the provincial workers’ compensation scheme, is generally entitled to deference for its expertise in matters that it routinely decides. In this case, the question decided by the WCAT was whether or not, under the GECA, the federal parliament intended to delegate the matter of interpreting the GECA to determine the employee status of federal government and crown agency employees to the provincial boards. This is certainly not a matter routinely decided by the WCAT or the WCB in light of the evidence of the prevailing practice since 1918 which precluded the necessity of WCB determining this threshold jurisdictional question. By comparison, if the decision under review was the actual determination of employee status, without the jurisdictional component, it would arguably be a matter at least analogous to the routine determination of worker status under the WCA.

[51] In this case, the WCB was apparently making the employee status determination by default for the first recorded time in the nearly ninety years of co-existence of the GECA and provincial workers’ compensation legislation. Consequently, the Review Division decision and the WCAT decision are first instance decisions. They are decisions on a pure question of law on the interpretation of a statute of very general application with nationwide ramifications that I will discuss further under the heading of “The Nature of the Problem.”

[52] It is true that the GECA has been found to be a home or constituent statute for the provincial boards, but it is not the principal enabling statute for them and the boards in each province all have the same claim to the GECA as a constituent statute. The potential adverse consequences of applying a highly deferential standard of review to a first instance legal decision of such general scope are obvious.

[53] The relative level of expertise factor in respect of statutory interpretation speaks against a grant of exclusive jurisdiction in that arena being intended by parliament. These circumstances also suggest a low level of deference should be accorded by the court.

(c) The Purpose of the GECA and particularly s. 2 and s. 4 thereof

[54] Although the GECA is, of course, not the statute that “created” the WCB and the WCAT, it is the jurisdiction granted by the GECA that we are concerned with, and it is the purposes of the GECA that are to be considered at this point in the analysis. Subsections 4(1) and 4(2) of the GECA come close to fully defining the purpose of the GECA and the reason for delegating, in s. 4(3), the determination of compensation to the provincial boards. Sections 4(1) and 4(2) read as follows:

4. (1) Subject to this Act, compensation shall be paid to

(a) an employee who

(i) is caused personal injury by an accident arising out of and in the course of his employment, or

(ii) is disabled by reason of an industrial disease due to the nature of the employment; and

(b) the dependants of an employee whose death results from such an accident or industrial disease.

(2) The employee or the dependants referred to in subsection (1) are, notwithstanding the nature or class of the employment, entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen, employed by persons other than Her Majesty, who

(a) are caused personal injuries in that province by accidents arising out of and in the course of their employment; or

(b) are disabled in that province by reason of industrial diseases due to the nature of their employment.

[55] Thus, the purpose of the GECA is to provide a range of federal government employees falling within the definition of “employee” in s. 2 of the GECA, a right to “compensation at the same rate and under the same conditions as provided under the laws of the province” and for that compensation to be determined by the provincial boards.

[56] The delegation of exclusive jurisdiction over determination of compensation is plain and obvious from the use of the words “shall be determined by” in s. 4(3). I am unable to glean any further expressed delegation of jurisdiction, let alone exclusive jurisdiction from the specific words of the GECA. However, the overall purpose of the GECA and the incorporation of the laws of the province as to rates and conditions imply exclusive jurisdiction in the WCB to determine matters that are reasonably incidental to determining compensation. The case law acknowledges this.

[57] The case law does not provide any formula for determining which specific matters are reasonably incidental to determining compensation.

[58] The petitioner argued at length that there is a distinction between determining compensation and determining eligibility for compensation. It is noteworthy that in s. 96 of the provincial WCA, eligibility is a matter specifically delegated to the board, albeit employing the definition of “worker” not the GECA definition of “employee”.

[59] A consideration of the general purpose of the legislation, which clearly delegates significant areas of adjudication to the provincial boards, suggests some deference should be accorded to the WCAT. The objective of parity between federally and provincially granted compensation rights suggests that some jurisdiction, if not necessarily exclusive jurisdiction, to determine its own jurisdiction may have been intended.

[60] There is, in the portion of the definition of “employee” set out in subparagraph (b) of the definition, a clear reservation of authority to the Minister to declare any “member, officer or employee” of any department, corporation etc. to be an employee for the purposes of the GECA. From this provision alone, it is clear that exclusive jurisdiction was not granted to the provincial board over the determination of eligibility and a fortiori over the determination of the scope of jurisdiction.

(d) The Nature of the Problem

[61] The decisions of the Review Division and the WCAT are decisions on a pure question of law on the fundamental issue of whether or not the GECA and/or the federal/provincial agreement grant authority to the WCB to decide employee status. Statutory jurisdiction may be exclusive or it may be concurrent, but a tribunal either does or does not have such jurisdiction; there is no half-way ground.

[62] As mentioned earlier in these reasons, the decision of the WCB case manager, the Review Division decision and the WCAT decision all appear to be first instance decisions that occurred because of the failure or stated inability of the appropriate Minister’s Representative to advise the WCB of Mr. Meng’s status.

[63] The jurisdictional issue decided here is one of national importance. Canada Post Corporation has intervened because it is concerned that provincial Workers’ Compensation Boards do not have the expertise to determine “employee” status under the GECA and that vesting jurisdiction in such boards would create great difficulties for federal employers, because it would lead to inconsistent and conflicting results with respect to employee status as well as different access to benefits under the GECA in different provinces. There are 9,000 Canada Post employees in British Columbia and 75,000 nationwide.

[64] The WCAT decision that the WCB has jurisdiction to determine employee status under the GECA, if correct, represents an apparent departure from the administrative practice and interaction of the provincial Workers’ Compensation Boards and the federal Minister’s Representative, HRDC, that has prevailed since 1918.

[65] I agree with the petitioner’s argument that not only is the issue jurisdictional, but it concerns the scope of authority as between a federal body (HRDC) and a provincial body (WCB) under a federal statute over which the federal government has assigned primary responsibility to the HRDC. I agree that parliament could not reasonably have intended to grant exclusive jurisdiction to the provincial body to determine the scope of its jurisdiction relative to the federal body, particularly not by mere implication only.

[66] These considerations surrounding the nature of the problem strongly point to an intention not to grant exclusive jurisdiction to the WCAT, and they also suggest a standard of review of low deference by the court.

[67] Taking all four factors of the pragmatic and functional approach set out in Bibeault into account, I conclude that the appropriate standard of review to apply to the WCAT decision in this case is the standard of correctness.

THE CORRECTNESS OF THE WCAT DECISION

[68] After a careful consideration of the reasoning of the WCAT decision and the arguments of the petitioner, HRDC and Canada Post Corporation suggesting error and/or unreasonableness, I conclude that the WCAT was correct in its ultimate finding that the WCB has jurisdiction to determine employee status under the GECA.

[69] I will review the main arguments alleging error and then comment on why I agree with the WCAT conclusion, although not necessarily all the ingredients of the tribunal’s analysis.

[70] The petitioner argues that the crux of the WCAT decision is its conclusion that the words “under the same conditions” in s. 4(2) of the GECA are broad enough to encompass the status of being an “employee” and, therefore, that determination of the “conditions” under which compensation would be provided includes determining whether an individual is an employee within the meaning of the GECA. The petitioner argues that this interpretation is inconsistent with the language of the GECA. The petitioner points to the WCAT’s comment acknowledging that on a literal interpretation the legislation may be read as referring simply to the determination of compensation entitlement after eligibility has been established. CBC argues that the literal interpretation referred to is the only reasonable interpretation and determinations about the rate of compensation and the conditions under which compensation will be provided cannot reasonably be said to include determination of whether an individual is an employee. CBC argues that the clear language of s. 2 and s. 4 of the GECA dictate that an individual must have the status of an employee as a pre-condition to eligibility for compensation as it is provided to workers in the province.

[71] With respect, I do not agree that the language of the GECA is that clear.

[72] I will set out again for convenience the definition of “employee” in s. 2 of the GECA:

"employee" means

(a) any person in the service of Her Majesty who is paid a direct wage or salary by or on behalf of Her Majesty,

(e) any officer or employee of the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Ethics Commissioner;

[73] I note that the word “employee” in an undefined sense is used in subparagraphs (b) and (e) of this definition. Clearly the use of the word “employee” within the definition subsections themselves cannot be intended to refer to the defined “employee”, as that would make the definition circular and meaningless.

[74] Although a literal reading of subparagraph (b) might leave one expecting to see declarations by the Minister containing thousands of employees’ names, in practice what occurs is that the Minister simply declares that all the employees of specified agencies, departments or crown corporations are employees for the purposes of the GECA. In subparagraph (e), employees of the Senate House of Commons Library of Parliament Officer or office of the ethics commissioner are included without the requirement of a specific declaration by anyone.

[75] Thus, the determination of whether an individual is an “employee” within the meaning of the GECA involves, for the two-mentioned sub-categories of the defined “employee”, whether or not an individual is in fact an employee of the named department, corporation or agency within the meaning of the common law. To that extent the definition of “employee” in the GECA is not an entirely unique or closed definition.

[76] It is interesting to note that the definition of “dependent” in the GECA is as follows:

"dependant”, in relation to an employee, includes

(a) a common-law partner of the employee, and

(b) a person who was cohabiting with the employee immediately before the employee’s death and is a parent of the employee’s child;

[77] Since dependents of an employee are people eligible for compensation, and “dependent” is, like “employee”, defined uniquely in the GECA in a different fashion than the comparative definition in the WCA, the petitioner’s arguments should, if valid, theoretically apply equally to the WCB’s jurisdiction to determine dependency. I note that s. 4(2) provides that:

[78] I appreciate that the definition of “employee” appears at first glance to be closed and exhaustive while the definition of “dependent” is expressed as open and inclusive, but that distinction is more formal than substantive considering the use of the generic employee within the definition of “employee.”

[79] I do not accept the petitioner’s argument that viewing the determination of employee status as reasonably incidental to a condition governing compensation would result in the definition of “employee” under the GECA being overridden by the status of being a “worker” under the WCA and render irrelevant the definition of “employee” in the GECA. As the WCAT decision pointed out, it would be important for board officers to appreciate that a determination of status under the GECA involves applying the definition of “employee” rather than the definition of “worker”, (something that the case manager in this case apparently failed to do), but I do not understand why that should be considered beyond the expertise of the WCB or why it should be assumed they would routinely ignore or fail to appreciate the distinction simply because that is apparently what happened in this case of first instance.

[80] The petitioner argues that the WCAT decision is not a reasonable interpretation of the federal/provincial agreement. I disagree with that submission, and I consider the federal/provincial agreement a clearer source of jurisdiction for the WCB than is the GECA. The agreement is a source of jurisdiction, of course, because of the provisions of s. 97 of the WCA which reads:

97. The Board may exercise any power or duty conferred or imposed on it by or under a statute of Canada or agreement between Canada and the Province. (Emphasis added)

[81] I have previously set out (at p. 6 and 7 of these reasons) paragraph 4 of the agreement and the entirety of Appendix A which sets out the responsibilities of the Workers’ Compensation Board of British Columbia and the Minister’s Representative. I will set out once again paragraph 4 of the agreement and paragraphs 1.1, 1.2, 1.3. 2.2. and 2.4 of the Appendix. Paragraph 4 of the agreement provides:

The relevant portions of Appendix A are:

1.1 The Board shall adjudicate claims from employees and pay and provide compensation.

1.3 The Board shall take no action on any claim for compensation that has been stamped “election form required” by the Minister’s Representative.

…

2.4 The Minister’s Representative shall use its best efforts to respond within 72 hours to all Board requests for subsequent information required to process a claim.

[82] The petitioner focuses on the use of the word “on” in paragraph 1.2 of the Appendix, suggesting that this connotes that status has already been determined, whereas the word “about” might suggest that the issue still remains to be determined. With respect, a stronger argument to the contrary is that if it was intended to be a request for a determination, the word “determination” would have been used instead of the word “information.” I agree with the WCAT comments in that connection.

[83] I note that paragraph 4 of the agreement provides that:

The Board shall adjudicate claims from employees involved in an accident …

This is broad language which does not make any reference to reserving a status determination for the federal government. The “shall adjudicate claims” phrase is repeated in 1.1 of the Appendix which reads:

The Board shall adjudicate claims from employees and pay and provide compensation.

These provisions are broader than the language used in s. 4(3) of the GECA which speaks only of determining compensation.

[84] Article 1.3 of the Appendix takes the opportunity to specify that the Board will take no action on any claim for compensation that has been stamped “election form required.” If it was intended that the Board should likewise take no action on any claim where the Minister’s Representative had not made a determination of employee status, it would have been a very simple matter to state that intention.

[85] In Article 2.4 of the Appendix, there is mention of the Minister’s obligation to provide subsequent information required to process a claim. The only previous reference in the Appendix to information emanating from the Minister’s Representative is the information on employee status mentioned in Article 1.2. This also suggests that employee status may be a matter under adjudication by the Board.

[86] The petitioner argues that the WCAT decision is inconsistent with the jurisprudence from the courts and workers’ compensation tribunals in other jurisdictions, but I find the WCAT analysis and application of the court decisions to be sound and more compelling than the Review Division’s analysis.

[87] The petitioner questions the WCAT’s preference to the evidence of the HRDC Regional Manager over HRDC’s published statements in website summaries of practice. I do not think the WCAT erred in that regard. The evidence from the Regional Manager included more detail on procedure and was reliable in the sense that it paralleled the actual events of the claim involved in this case. In any event, the WCAT correctly noted that practice is not determinative of jurisdiction and dealt with that issue appropriately.

[88] I do agree with the petitioner’s argument that the WCAT’s reliance on the policy of the former governors and the current Board of Directors contained in 8.10 of the Rehabilitation Services and Claims Manual is wrong. The WCAT decision said in that regard:

While it is possible that these provisions might have been included in the policy simply for information purposes, the more likely inference from the policy of the Board of Directors is that this involves a subject matter within the Board’s adjudicative authority.

[89] In my view, the most that could be inferred is that the Board obviously thought interpreting the definition of “employee” in the GECA was within its adjudicative authority. However, I do not find this error significant enough to undermine the WCAT conclusion.

[90] The respondent, HRDC and the intervenor, Canada Post Corporation, supported the petitioner in all of its arguments and made additional submissions. Canada Post Corporation erroneously referred to the Review Division equating the meaning of “employee” under the GECA with “worker” under the WCA. The WCB case manager made that error, but it is clear from the portion of the Review Division decision quoted earlier in these reasons, that the Review Division did not.

[91] I understood the point of the Canada Post Corporation argument to be that such errors are an illustration of the provincial Board’s lack of relevant expertise in the interpretation of federal labour relation statutes, and that if the WCAT decision stood the provincial Boards will wrongly make determinations based on provincial not federal legislation. I do not think this is a weighty argument as the Review Division and the WCAT were both alive to the importance of interpreting the federal legislation.

[92] The additional submissions of the respondent HRDC and the intervenor Canada Post Corporation, address the practical difficulties that each may face if the WCAT decision is upheld, but these arguments are policy arguments that do not weigh heavily with the court on the statutory and contractual interpretation issues before it. The desirability of achieving homogenous treatment for all federal employees across the country was obviously subordinated in the GECA and the agreement to the objective of realizing compensation parity between federal and provincial employees within each of the provinces. That was a policy decision of government reflected in the legislation and the agreement. If the court has erred in interpreting the GECA or the agreement, the governor in council acting under s. 4(3)(b) of the GECA has the power to simply redirect adjudications of employee status to some other board officer or authority, or the Minister of Labour may renegotiate the terms of the federal/provincial agreement to alter the effect of this decision.

[93] In conclusion, I reiterate that I agree with the WCAT decision under review and I would order the petition dismissed. The only order of costs that I think it is appropriate to make in this case is that the petitioner shall pay the costs of the respondent, Lijun Luo.

“I.C. Meiklem, J.”
MEIKLEM J.

Citation:	*Canadian Broadcasting Corporation v. Lijun Luo,*
	2007 BCSC 971