2008 BCSC 1184 British Columbia Ferry and Marine Workers' Union v. Workers' Compensation Board

Before: The Honourable Mr. Justice Halfyard

Reasons for Judgment

Counsel for the petitioner:	J.D. Buchan
Counsel for the respondent, Workers Compensation Board	S.A. Nielsen
Counsel for the respondent, British Columbia Ferry Services Inc.	H.P. Swanson
Counsel for the Attorney General of British Columbia:	V.L. Jackson
Date and Place of Trial/Hearing:	April 24, 25, 2008 at Vancouver April 29, 30 and May 27, 2008 at Nanaimo

Introduction

[1] This is an application by the British Columbia Ferry and Marine Workers’ Union for judicial review of the decision of a case/review officer employed by the Workers Compensation Board of British Columbia. By his decision on March 1, 2006, case/review officer Doug MacDonald set aside seven orders that had been issued on July 19, 2002 by an occupational safety officer employed by the Workers Compensation Board of British Columbia (“the Board”). Those orders had been directed to the respondent British Columbia Ferry Services Inc. (“B.C. Ferry”), and cited B.C. Ferry for six violations of Part 31 of the Occupational Health and Safety Regulations made pursuant to the Workers Compensation Act. The orders were issued following the officer’s inspection aboard the Bowen Queen, a ferry owned and operated by B.C. Ferry, while it was docked at the Swartz Bay terminal. The alleged violations related to equipment, procedures and training for fighting fires on the vessel, and were identified by the occupational safety officer while observing a fire drill conducted by the ship’s crew.

Background Facts

[2] The Bowen Queen was engaged in carrying passengers and motor vehicles between Swartz Bay (on Vancouver Island) and Fulford Harbour (on Saltspring Island). It is one of the smaller ferries in the fleet operated by B.C. Ferry throughout the province. The fleet consists of about 35 ferries. Members of the British Columbia Ferry and Marine Workers’ Union (“the Ferry Workers”) operate and maintain the ferries.

[3] The Bowen Queen has a crew of seven, which includes the Master, Mate, Chief Engineer, Third Engineer and three Deckhands. Four members of that crew, the Mate, the Third Engineer and two of the Deckhands, are designated as being the fire party. There are four sets of fire suits and three self-contained breathing apparatus on the Bowen Queen, available for use by the fire party.

[4] Fire drills are held by the fire party on the Bowen Queen, once per month (see the finding of the Review Officer at paragraph 112 of the decision).

[5] I will summarize the orders made on July 19, 2002, and the regulation on which each was based:

1. OHS 31.25(1): The employer did not ensure that there were at least 4 apparatus available when self-contained breathing apparatus was used for firefighting purposes.

31.25(1) When self-contained breathing apparatus are used, the employer must ensure there are at least 4 apparatus available.

2. OHS 31.23(4) This is a preventive order requiring a “suitably equipped rescue team of at least 2 firefighters” to be “established on the scene before sending in a second entry team and not more than 10 minutes after the initial attack”.

31.23(4) A suitably equipped rescue team of at least 2 firefighters must be established on the scene before sending in a second entry team and not more than 10 minutes after the initial attack.

3. OHS 31.18(1): The employer did not provide a personal alert safety system when firefighters were involved in duties which required wearing a self-contained breathing apparatus.

31.18(1) A firefighter must be provided with and use a Personal Alert Safety System (PASS) when involved in duties which require a self-contained breathing apparatus to be worn.

4. OHS 31.23(2): This is a preventive order requiring effective voice communications to be maintained between firefighters inside and outside an enclosed location.

31/23(2) Effective voice communication must be maintained between firefighters inside and outside the enclosed location.

5. OHS 31.3(1) The employer failed to provide a separate joint committee or a worker health and safety representative for the industrial fire brigade.

31.3(1) If an employer is required under Part 3 of the Workers Compensation Act to establish a joint committee or worker health and safety representative, then a fire department or industrial fire brigade operated by the employer must have a separate joint committee or a worker health and safety representative, as applicable.

6. OHS 31.4: The employer has not adequately maintained instruction for some firefighters in the safe performance of their duties.

31.4 The employer must ensure the adequate instruction and direction of firefighters in the safe performance of their duties.

7. Order 7 was procedural, requiring the employer to post a Notice of Compliance by September 1, 2002.

[6] On July 31, 2002, B.C. Ferry applied for a review of the orders in question and for a stay of execution pending the review. The board granted the stay, and prolonged negotiations were conducted between B.C. Ferry and the Board. The issues could not be resolved, and the review of the orders as requested by B.C. Ferry, went ahead by way of written submissions to the case officer conducting the review.

[7] Counsel for B.C. Ferry, in submissions to the review officer, challenged the orders issued by the occupational safety officer on two grounds which I would summarize in this way:

a) Part 31 of the Regulations does not apply to the fire fighting activities of the crew members of the Bowen Queen who were assigned to the “fire party”.

b) The Province of British Columbia has no constitutional authority to enact laws purporting to govern fire fighting activities aboard B.C. Ferry vessels, which laws can only be enacted by the federal government under its legislative powers relating to navigation and shipping; and consequently the occupational safety officer had no authority to issue the orders in question.

[8] On March 1, 2006, review officer Doug MacDonald published his decision which is now challenged by the Ferry Workers. Mr. MacDonald set aside the orders made by the occupational safety officer. He decided that the province had the constitutional power to make the regulations in question, but set the orders aside on the ground that Regulation 31 did not apply to the fire party aboard the Bowen Queen. The reasons given for the latter decision were that the fire party on the Bowen Queen did not constitute an “industrial fire brigade” within the meaning of Regulation 31.1 and that the members of the fire party were not “employed in fire fighting activities on a full or part time basis”, within the meaning of Regulation 31.2.

[9] On May 31, 2006, the Ferry Workers applied to the appeal tribunal of the board, seeking a reconsideration of the decision of case/review officer MacDonald. On September 1, 2006, the appeal was dismissed on the ground that the appeal tribunal had no jurisdiction to hear the appeal (because no penalty consequences had been made part of the orders issued by the occupational safety officer). That decision of the appeal tribunal was not challenged. This petition was filed on September 29, 2006. An amended petition was filed on November 6, 2007.

The Grounds of the Application

[10] The Ferry Workers allege that the decision of the review officer should be set aside because:

a) He erred in interpreting the meaning of “industrial fire brigade” in section 31.1 of the regulation;

b) He erred in interpreting the meaning of the words “employed in firefighting activities on a full or part time basis,” in section 31.2 of the regulation; and

c) The effect of the errors is to make the decision incorrect and unreasonable.

The Procedural Issue

[11] It was accepted by the respondents and the Attorney General that the decision of the review officer was “a decision made in the exercise of a statutory power of decision”, and thus was subject to judicial review. But at the outset of the hearing, there was a dispute among the parties as to the procedure which should be followed (as to what issues should be decided, and in what order) and as to the remedies available. Counsel for B.C. Ferry first took the position that the constitutional issue should be decided first, and that if there was a decision in favour of B.C. Ferry, then the court should grant a declaration that Part 31 of the regulation was ultra vires the Province insofar as it purported to apply to fire parties aboard vessels operated by B.C. Ferry. It was said that, in that event, there would be no need to decide the interpretation issue.

[12] All other parties opposed the position taken by Mr. Swanson on behalf of B.C. Ferry. There seemed to be a consensus between the Ferry Workers, the Board and the Attorney General that the issue of whether Part 31 of the Regulation had application to fire parties aboard the Bowen Queen, must be decided first. There also appeared to be agreement between the Ferry Workers, the Board, and the Attorney General as follows:

a) If the court upholds that decision of the review officer, then the constitutional issue does not properly arise and should not be considered or decided; and

b) if the court sets aside that decision of the review officer, then the challenge by B.C. Ferry to the constitutional applicability of Part 31 of the Regulation to its fire parties may be entertained as a defence, but B.C. Ferry cannot be entitled to a declaration of invalidity even if successful.

[13] In addition, the Attorney General objected to the notice given by B.C. Ferry, and to the sufficiency of the particulars of the constitutional issue sought to be argued. These troublesome issues came up from time to time during the hearing. By the time the case was concluded, I think Mr. Swanson had accepted that B.C. Ferry could not claim the remedy of a declaration of constitutional invalidity. But he did not resile from the position that the constitutional question should be determined, regardless of whether the decision of the case officer was upheld or set aside.

[14] The situation is somewhat complicated by the fact that B.C. Ferry did not appeal nor seek judicial review of the decision of the review officer on the constitutional question. But since B.C. Ferry was successful at the review stage, it seems questionable as to whether it would have had standing to bring such a proceeding. I did rule that the issue raised by the petitioner would be argued first. I will return to the procedural issue later in these reasons.

The Decision of the Review Officer

[15] The decision of the review officer which is challenged by the Ferry Workers on this application is set out at paragraph 117 of the decision and is as follows:

. . . Part 31 does not apply to the employer’s fire party on the Bowen Queen as it does not constitute an industrial fire brigade within the meaning of the regulation nor meet the requirement that its members are employed in fire fighting on a full or part time basis.

[16] The reasons given by the review officer to support his said decision are summarized at paragraph 116 of the decision, in these words:

116. I conclude that the employer’s fire party on the Bowen Queen is not an industrial fire brigade within the meaning of section 31.1 as it is not an “organization”, nor is it made up of workers who are employed in fire fighting on a full or part time basis, as required by s. 31.2, and hence I find Part 31 of the Regulation does not apply to the employer’s fire party. . . .

[17] The review officer decided that the fire party employed by B.C. Ferry on the Bowen Queen was not an “industrial fire brigade” because it was not “an organization”. In his view, the fire party was not an “organization” because it was not “a distinct and dedicated entity internal to an employer’s operation.” (paragraph 103)

[18] Having concluded that the fire party on the Bowen Queen was not an industrial fire brigade, the review officer stated (in effect) that, even if the fire party was an industrial fire brigade, it would not automatically follow that Part 31 of the Regulation would apply to the fire party. In his opinion, Part 31 could only apply to the fire party, if in addition, “. . . its members were employed in firefighting on a full or part time basis.” (paragraph 104)

[19] The review officer then reasoned to the conclusion that the members of the fire party were not “employed in fire fighting on a full or part time basis”. He was of the view that the members of the fire party were only “assigned to” fire fighting duties as an incidental aspect of their main job duties and were therefore not “employed in fire fighting activities on a full or part time basis”. (Paragraphs 105 – 115)

The Apparent Scope of Part 31

[20] Part 31 of the Occupational Health and Safety Regulation is entitled “Fire fighting.” The scope of its application is set out in s. 31.2 as follows:

31.2 Application

This part applies to employers and to workers who are employed in fire fighting activities on a full or part time basis, including volunteer fire fighting in municipal services and industrial fire brigades under Part 1 of the Workers Compensation Act, but does not apply to forest fire fighting.

[21] The relevant definitions are set out in s. 31.1, namely:

“firefighter” means any worker employed in firefighting, fire inspection, fire investigation, the maintenance of fire fighting equipment, the training for and direction of those activities, or other similar duties;

. . .

“industrial fire brigade” means an organization established by an employer to protect the employer’s premises where the nature of the business creates specific hazards for which specialized training and equipment is required;

“structure” means a building, vehicle, vessel or similar enclosed location.

[22] The review officer accepted B.C. Ferry’s submission that “industrial fire brigades under Part 1 of the Workers Compensation Act” could not include fire parties aboard any of B.C. Ferry’s vessels. (paragraph 94)

The Case for the Petitioner

[23] Counsel for the Ferry Workers submits that the review officer erred in law in interpreting the meaning of “industrial fire brigade” by erroneously interpreting the word “organization” so as to exclude the fire party on the Bowen Queen. Secondly, it is argued that the review officer erred in his interpretation of s. 31.2 of the Regulation, by wrongly deciding that the members of the fire party on the Bowen Queen were not “workers who are employed in fire fighting activities on a full or part time basis.” Mr. Buchan contended that these errors justified setting aside the decision of the review officer, on the ground that it was incorrect and unreasonable.

The Issues

[24] I would state the issues in this way:

a) What is the standard of review to be applied to the review officer’s decision?

b) Did the review officer err in deciding that the fire party aboard the Bowen Queen was not an “industrial fire brigade”?

c) Did the review officer err in deciding that the members of the fire party aboard the Bowen Queen were not “workers who are employed in fire fighting activities on a full or part time basis”?

d) If the review officer erred in either (or both) of the two ways alleged, then was his decision that Part 31 of the Regulation did not apply to the fire party aboard the Bowen Queen, incorrect and unreasonable?

Issue 1: What is the Standard of Review?

[25] All parties were agreed that the standard for judicial review of the review officer’s decision on the constitutional issue is one of correctness. But on the question of the review officer’s interpretation of s. 31.1 and s. 31.2 of the Regulation, there was some debate as to the standard of review, notwithstanding the recent decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick 2008 S.C.C. 9. At paragraph 34, the majority stated:

We conclude that there ought to be two standards of review, correctness and reasonableness.

[26] As I understood Mr. Buchan’s argument, he first submitted that the review officer made errors of law in deciding the interpretation issues which concerned matters outside his area of expertise, and so a standard of correctness should be applied to his decision. In the alternative, Mr. Buchan argued that if the test was reasonableness, then the seriousness of the errors committed by the review officer elevated his decision to a degree of unreasonableness which, before Dunsmuir, was described as “patently unreasonable.” Counsel was concerned about the potential effects of the privative clauses in the Act, and was also concerned that, notwithstanding Dunsmuir v. New Brunswick, the Administrative Tribunals Act (section 58) might change the standard of review to “patent unreasonableness.”

[27] For the Board, Mr. Neilsen took the position that s. 58 would apply only to decisions of the Appeal Tribunal, but not to those of the Board. He conceded that the standard of review to be applied to the review officer’s decision could not be lower than reasonableness. I accept that concession.

How does the Reviewing Court determine whether the standard of reasonableness or correctness should be applied?

[28] As I read Dunsmuir, the standard of correctness will not be applied to the decision of an administrative tribunal on an issue of interpretation of its enabling legislation, unless the issue goes to the scope of the tribunal’s jurisdiction, to procedural fairness, to constitutional questions, or to questions of general law. In these cases, the standard of correctness will be applied to the decision. See Dunsmuir v. New Brunswick at paras 36, 58, 59, 60, 90 and 129.

[29] At paragraphs 55-64, the majority of the court in Dunsmuir identified and reaffirmed the factors that must be considered in deciding whether the standard of review should be reasonableness or correctness. Those factors are:

a) The presence or absence of a privative clause;

b) The purpose of the tribunal as determined by interpretation of the enabling legislation;

c) The nature of the question at issue; and

d) The expertise of the tribunal.

[30] In their discussion of the factors, the majority in Dunsmuir enunciated the following propositions:

a) The presence of a privative clause “is a statutory direction from parliament or a legislature indicating the need for deference.” (paragraph 55)

b) If the enabling statute creates a “special administrative regime in which the decision maker has special expertise”, the standard of reasonableness will be indicated. (para’s 49, 54 and 55)

c) Some of the questions of law decided by the administrative tribunal will be subject to the test of reasonableness rather than correctness. (par. 56)

d) Decisions of administrative tribunals on “true questions of jurisdiction” will be reviewed for correctness. “Jurisdiction is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry.” (par. 59)

Conclusion as to the standard of review

[31] In my opinion, the standard of reasonableness should be applied in reviewing the decision which is challenged by the Ferry Workers. There were strongly worded privative clauses in section 113(1) and section 206(4) of the Act. The Workers’ Compensation Board has developed expertise in the field of occupational health and safety. While the interpretations at issue involve questions of law (as well as questions of mixed fact and law), in my opinion these questions do not relate to the jurisdiction of the Board or to a matter of general law outside the expertise of the Board. I conclude that the legislature intended to confer authority on the Board to decide these questions, and intended that deference be given to such decisions by the courts.

Issue 2 - Did the review officer err in deciding that the fire party aboard the Bowen Queen was not an “industrial fire brigade”?

Issue 3 - Did the review officer err in deciding that the members of the fire party aboard the Bowen Queen were not “workers who are employed in fire fighting activities on a full or part time basis”?

[32] I intend to deal with both interpretation issues together, because I think the reasoning on both issues is connected and intertwined, as are the arguments.

[33] The review officer decided that the fire party aboard the Bowen Queen was not “an industrial fire brigade” because it was not “an organization”. He was satisfied that the fire party met the other two requirements of the definition of “industrial fire brigade” in Regulation 31.1. (paras 96 – 99)

[34] The review officer decided that the fire party was not “an organization”, because it was not “a distinct and dedicated entity internal to an employer’s operation” (paragraph 103). The apparent reason for that conclusion of the review officer is that the fire fighting duties of fire party members “are incidental to their regular work”, and they are rarely “called upon to perform fire fighting duties.” (paragraph 103)

[35] The review officer decided that the members of the fire party aboard the Bowen Queen were not “workers who are employed in firefighting activities on a full or part time basis,” because they were only “assigned to” firefighting duties as an incidental part of their regular job duties, and were therefore not “employed in firefighting activities . . . .” (para 110). It seems to me that similar reasoning was applied to both interpretation issues.

The Argument of the Ferry Workers

[36] In summary, Mr. Buchan argued that the review officer made the following errors of law in interpreting s. 31.1 and s. 31.2 of the Regulation (my paraphrasing):

(a) He failed to consider the dictionary meanings of the words “organization”, “fire brigade” and “brigade”.

(b) He departed from the plain and ordinary (dictionary) meaning of the word “organization”, without identifying any reason why the plain meaning should not be adopted.

(c) He wrongly took into consideration irrelevant factors, namely, the infrequency of occasions on which the fire party was called upon to fight a fire; and Regulation 4.16.

(d) He erred by drawing a distinction between the meanings of “employed in” and “assigned to,” and in attaching excessive importance to that distinction.

(e) He made interpretations that were inconsistent with the purpose of Part 31 of the Regulation and the statutory scheme.

[37] Mr. Buchan relied on the rule of statutory construction which requires the court to interpret every enactment in a way that “best ensures the attainment of its objects.” See s. 8 of the Interpretation Act R.S.B.C. 1996 c. 238. Counsel referred me to Part 3 of the Workers Compensation Act, and to the purpose of the Regulation in question, as indicated by the following sections of the Act:

107(1) The purpose of this Part is to benefit all citizens of British Columbia by promoting occupational health and safety and protecting workers and other persons present at work places from work related risks to their health and safety.

. . .

111(1) In accordance with the purposes of this Part, the Board has the mandate to be concerned with occupational health and safety generally, and with the maintenance of reasonable standards for the protection of the health and safety of workers in British Columbia and the occupational environment in which they work.

[38] It was submitted that the purpose of the fire party was “to protect the passengers and crew from injury and to protect the property of passengers and B.C. Ferries from damage or loss.” Mr. Buchan claimed that the purpose of the legislation was defeated by the review officer’s decision, in that there were four employees on the fire party aboard the Bowen Queen, but only three special breathing apparatus were supplied by B.C. Ferry. Regulation 31.25 would require four such apparatus to be provided, and it was said that the failure to apply that law to B.C. Ferry’s fire party creates “serious risk to personal health.”

[39] Mr. Buchan advanced the rule for statutory interpretation as stated in Re: Rizzo v. Rizzo Shoes Ltd., [1998] 1 S.C.R. 27 at paras. 21 and 27, and the application of these Rules at paras. 40 and 41. At paragraph 21, Mr. Justice Iacobucci, speaking for the court, adopted the following fundamental rule of statutory interpretation:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[40] Counsel relied on the following dictionary definitions (from the Canadian Oxford Dictionary, 1998) in support of his submission that the review officer wrongly failed to adopt the ordinary meaning of the word “organization”:

a) “organization”. . . 2 an organized body, esp. a business, government

department, charity, etc. 3 systematic arrangement

b) “brigade” .. . . an organized or uniformed band of workers (fire brigade);

c) “fire brigade” . . . an organized body of fire fighters.

[41] Counsel noted that the fire party in question was “a subdivision of the crew of the vessel.” He said that the fire party was an “organized” body of employees of B.C. Ferry having firefighting duties who are trained to fight fires, who conduct regular fire drills, and who are supplied with protective clothing and equipment. It was also stated that the fire party was an organized band of workers who were “firefighters”, and therefore it met the dictionary definition of “fire brigade.” Mr. Buchan further contended that, even if the review officer was right to define an “organization” as being “a distinct and dedicated entity internal to an employer’s operation”, he erred in concluding that the fire party did not fall within that definition.

[42] Counsel referred to me to the case of Sittampalam v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 1512. In that case, the Federal Court of Appeal was required to consider the validity of the appellant’s deportation which had been ordered on the ground that he was involved in organized criminality. At paragraphs 34 – 41, the court considered the meaning of the word “organization” in the context of whether the appellant was a member of a criminal gang. At paragraph 38 the court approved of a number of factors to be considered in deciding whether a criminal gang was an “organization”. Those factors included “identity, leadership, a loose hierarchy and a basic organization structure” and “an occupied territory or regular meeting locations.” Mr. Buchan submitted that the application of this test to the present case would favour the conclusion that the fire party aboard the Bowen Queen was an “organization”. I do not find much assistance from this authority. But the dictionary meanings cited by counsel suggest that the review officer’s definition of “organization” was a departure from its ordinary meaning.

[43] Counsel for the Ferry Workers argues that the review officer considered an irrelevant factor in determining the meaning of “organization”, namely, the frequency with which a fire party is called upon to fight fires. Counsel first stated that it was wrong for the review officer to distinguish the fire party from firefighters in a public or volunteer fire department, on this basis. It was then contended by Mr. Buchan that the review officer had erroneously assumed without any evidence, that fire fighters in public fire departments are required to fight fires more often than a fire party on the Bowen Queen. While there may not have been direct evidence on that issue, I think that apparent conclusion of the review officer is a reasonable inference to be drawn from the circumstances, including the fact that fire fighting is only one of the duties of the employees who are members of the fire party. But the point based on relevance seems to have merit, on the issue of the meaning of “organization.”

[44] Mr. Buchan pointed out that s. 31.2 specifically excludes “forest fire fighting”, and argued that fire fighters working aboard vessels would also have been expressly excluded if that had been the intent of the legislature. To my mind, that is a point which favours the interpretation advanced by the Ferry Workers, to some extent. But there is a great difference between fighting a fire in a forest, and fighting a fire aboard a vessel. This point would have carried more weight if, for example, s. 31.2 had ended with the words “ . . . but does not apply to forest fire fighting or to fighting fires aboard commercial tug boats or barges.” In that situation, the exclusion of some vessels would imply that all other vessels were included.

[45] As to the second alleged error, the Ferry Workers say that the review officer erred when he decided that Part 31 of the Regulation did not apply to the fire party aboard the Bowen Queen, on the ground that they were not “workers who are employed in fire fighting activities on a full or part-time basis.” (See paragraph 116 of the decision.) Counsel for the Ferry Workers submits that, in common sense, the members of the fire party aboard the Bowen Queen are, “workers who are employed in fire fighting activities on a . . . part time basis.” Mr. Buchan argued, in effect, that the review officer’s conclusion that the members of the fire party were only “assigned to” firefighting duties, and were not “employed in fire fighting activities”, is a distinction without a difference.

[46] Mr. Buchan said it was wrong for the review officer to consider Regulation 4.16 and to compare and contrast it with Part 31 of the Regulation. He argued that Regulation 4.16 was irrelevant because it was directed to “evacuation and safety procedures and training related thereto to ensure that workers are able to egress from their work site safely in the event of a fire.” Counsel contrasted this with Part 31, which he said was aimed at the protection of “those who are tasked to protect an employer’s premises where the nature of the business creates a defined hazard requiring specific types of equipment to ensure the health and safety of the firefighters.” Although Mr. Buchan has overlooked the reference to “firefighting duties” in s. 4.16(2), I am persuaded that these submissions require careful consideration.

The Argument of the Board and the Attorney General

[47] On behalf of the Board, Mr. Nielsen made counter-arguments to some of the specific points made by Mr. Buchan. For example, he defended the review officer’s distinction between the fire party aboard the Bowen Queen, and firefighters based on land, in considering whether the members of the fire party were “employed in” firefighting. Mr. Nielsen also supported the review officer’s reference to Regulation 4.16 as a partial guide for interpreting Regulation 31. But the main thrust of his submission was directed to points relating to the degree of deference that should be given to the review officer’s decision, and the application of the unreasonableness test to the decision. Ms. Jackson presented separate arguments on behalf of the Attorney General which supported those made by Mr. Nielsen. Mr. Swanson did not make any specific submissions on the interpretation issues.

Law

[48] When a question arises as to the meaning of words used in a statute or regulation, there is a presumption that the legislature intended the words to be read as having their plain and ordinary grammatical meaning. The method for determining whether this presumption should prevail or be rebutted was stated in the speech of Lord Atkinson in Victoria (City) v. Bishop of Vancouver Island, [1921] A.C. 384 at 387, in this way:

In the construction of statutes their words must be interpreted in their ordinary grammatical sense, unless there be something in the context, or in the object of the statute in which they occur, or in the circumstances with reference to which they are used, to show that they were used in a special sense, different from their ordinary or grammatical sense.

[49] In Haida Nation v. Minister of Forests (1998), 45 B.C.L.R. (3d) 80 (C.A.), Mr. Justice Esson (at paragraphs 9 and 10) adopted this statement of Lord Atkinson as being an alternate way of stating the fundamental rule of statutory interpretation. Esson, J.A. also expressed the opinion that “the context” in which the disputed words are to be construed includes the immediate context of the specific section or subsection, as well as the general context of the whole enactment (at paragraphs 14 and 15).

[50] In Re Rizzo and Rizzo Shoes Ltd., supra, at paragraph 27, the court stated that the ordinary meaning should prevail, unless the adoption of that meaning would “produce absurd consequences.” Iacobucci, J. said, in effect, that a consequence which would defeat the purpose of the particular section in which the disputed words appear, or the purpose of the enactment itself (in whole or in part), will generally be an absurd consequence.

Discussion

[51] In the present case, it seems to me that (except for workers engaged in forest fire fighting) Part 31 would apply to all workers who were members of a “fire department” (ie. “a fire brigade operated as a public service . . . “) and to all workers who were members of an “industrial fire brigade.” It is also my opinion (contrary to that of the review officer) that all such workers would necessarily be “employed in fire fighting activities on a full or part-time basis.” That is because, in my opinion, a worker could not be a member of either of these groups, unless the worker in question was a “fire fighter” within the definition in s. 31.1.

[52] Conversely, it is my opinion that if a worker is not a “fire fighter,” it must follow that he or she cannot be a member of a “fire department” or an “industrial fire brigade,” and cannot be “employed in firefighting activities” for any part of the time. As I see it, Regulation 31 can only apply to “firefighters”, and only to firefighters who are members of a “fire department” or an “industrial fire brigade” (and who are not engaged in “forest fire fighting”).

[53] Mr. Buchan made the submission that the crew members of the Bowen Queen who were assigned to the fire party automatically became firefighters within the meaning of “firefighter” in s.31.1 of the Regulation. He further stated that the review officer had made that finding at paragraph 102 of his decision. I do not agree. As I read his reasons, the review officer found that the members of the fire party were not “firefighters” within the definition of that word in s.31.1 of the Regulation.

[54] Counsel’s argument is based on paragraph 102 of the decision, which I reproduce in full:

[102] One of the documents provided by counsel for the Employer in the context of her submissions on the stay request was the Employer’s Fleet Regulation, Emergency preparedness, Contingency Plans and Drills. At page 11 of this document, there is a reference to the “ship’s fire parties” and the Chief Officer directing the fire party in responding to fires above the main deck, with engineering personnel being in charge of the fire party when fighting fires in machinery spaces. The Second Officer affidavit attached to the Union submission also refers to the “fire party” on the Bowen Queen, and the fire party’s make-up. I am satisfied those assigned to fire attack / suppression duties as part of the “fire party,” not other crew members assigned ancillary duties – others I might add that Part 31 does not purport to regulate from a firefighting point of view – would be the Employer’s “firefighters.”

[55] In my view, the review officer’s use of the words “would be the Employer’s ‘firefighters’” is his response to B.C. Ferry’s argument (set out in paragraph 101) that all of its workers “have firefighting duties.” As I see it, the review officer is saying that only crew members assigned to the fire party (not other crew members) could be “firefighters”.

The core of the reasoning of the review officer appears to be contained in paragraphs 110 and 112 of the decision, where he states:

[110] In a public fire department, a fire fighter is “employed in fire fighting,” and that is their usual/regular job. That is not the case for crew members on the employer’s ferries who are employed in another job capacity, and are assigned to the fire party, who only perform fire fighting duties on an incidental, or emergency basis.

. . .

[112] I should add that I have given consideration to the evidence available on file that indicates those workers on the Employer’s ferries that are assigned firefighting duties are, on the larger vessels, drilled every two weeks, and on the smaller vessels, every month. I say this for the reason that beyond being a worker “employed in firefighting”, “firefighter” is defined to include those “training for” those activities. I [am] not satisfied that the frequency with [which] those assigned firefighting duties engage in training has the effect [of] making them firefighters.

[56] In my opinion, these paragraphs make it plain that the review officer found that the members of the fire party were not “firefighters” within s. 31.1. I consider his reasoning to be (both expressly and by necessary implication), as follows:

(a) In order to be a “firefighter,” a worker must, by definition, be “employed in firefighting”, or one of the other activities described in the definition of “firefighter.”

(b) But members of the fire party are only assigned firefighting duties as an incident to their regular jobs, and so they are not “employed in firefighting activities.” (paragraph 110)

(c) A worker who is not “employed in firefighting activities” cannot be a “firefighter” within the definition in s.31.1 (and for the same reason cannot be included in s.31.2).

[57] I think this reasoning of the review officer is made apparent by paragraph 112 of his decision. He there states, in effect, that the “training” engaged in by members of the fire party was not of sufficient frequency to justify the conclusion that they were “employed in firefighting activities.”

[58] I would add that, in my opinion, the review officer would have committed serious error if he had found that the members of the fire party were “firefighters,” and had then interpreted s.31.2 as excluding them from the application of Regulation 31. I say that because it would be contradictory to say that such a worker was a “firefighter” (that is, one who is “employed in firefighting” or a related activity), and then to say that the worker was not “employed in firefighting activities” for any part of his or her working time. If the members of the fire party were found to be “firefighters,” I do not see how they could logically be excluded from the application of Part 31.

[59] I am inclined to agree with Mr. Buchan’s assertion that the frequency with which the fire party aboard the Bowen Queen is called upon to fight a fire seems irrelevant to the question of whether the fire party is an “organization.” If the members of the fire party were found to be “firefighters,” I think the dictionary meanings relied on by Mr. Buchan would have provided considerable support for his contention that the fire party was an “organization.” But absent that finding (and in the face of the finding that its members were not firefighters), I think a strong argument can be made that the fire party is not a “fire brigade” of any kind, and so it could never be an “industrial fire brigade.” This could provide an alternate reason to support the review officer’s decision that the fire party was not an “industrial fire brigade.” To my mind, this would be a stronger reason than that relied on by the review officer, namely, that the fire party was not “a distinct and dedicated entity internal to an employer’s operation.”

[60] In connection with this point, it should be noted that the review officer did decide (at paragraphs 93 to 96) that workers employed by B.C. Ferry who were assigned to firefighting activities did not constitute a “fire brigade” within the meaning of Part 1 of the Act (because B.C. Ferry was not one of the described public bodies).

[61] It may be apparent from the foregoing discussion that, in my opinion, the root question facing the review officer was whether the legislature intended that workers in the circumstances of the fire party aboard the Bowen Queen, should be deemed to be “firefighters” within Regulation 31.

[62] The review officer believed it was necessary to consider the issue of whether the members of the fire party were “employed in firefighting activities” for some of their working time (see par. 104 of his decision). I agree that this issue had to be considered, but I have noted my opinion that it should have been in relation to the primary question of whether the fire party members were “firefighters”. But the issue is the same, whether it be considered under s. 31.1 or s.31.2, and the decision of the review officer on this point must be examined. In his opinion, the members of the fire party were not “employed in” firefighting activities, because they were only “assigned to” such duties as incidental to their regular jobs.

[63] The distinction made by the review officer between “employed in” and “assigned to” was based on the proportion of working time spent by fire party members in carrying out “firefighting activities.” The facts presented to the review officer showed that the firefighting duties of fire party members, while important, were only incidental to their main job functions. This was not seriously contested by Mr. Buchan, but he argued, in effect, that the amount of time spent in firefighting activities was irrelevant to whether a worker was “employed in” such activities. Counsel said that it was error of law for the review officer to consider this factor.

[64] The dictionary meanings of “employ” include:

1 use the services of (a person) in return for payment; . . .

2 (often foll. by ‘for, in, on’) use (a thing, time, energy etc) esp – to good effect;

3 (often foll. by ‘in’) keep (a person) occupied.

(See The Concise Oxford Dictionary, 1995)

[65] I think the review officer departed from the ordinary meaning of “employed” when he decided that the workers in the fire party were not “employed in” firefighting activities for any part of their working time. I must apply the rules of statutory interpretation, and determine whether there was:

something in the context, or in the object of the statute . . . or in the circumstances. . .

that would justify his adopting a meaning different from the ordinary meaning.

[66] The context in the present case included s.31.1, s.31.2, the whole of Regulation 31, and the Occupational Health and Safety Regulation in its entirety. It also included the circumstances of the workers who were members of the fire party aboard the Bowen Queen, which I have outlined.

[67] The review officer recognized that Part 31 applied to “fire departments” and “industrial fire brigades.” He noted that workers in fire departments were engaged in firefighting activities as their main job function. He seems to have reasoned by analogy that members of industrial fire brigades would also have firefighting duties as their regular job (whether the job was full time or part time).

[68] The review officer then considered s.4.16 of Part 4 of the Regulation, which states:

(1) All workers must be given adequate instruction in the fire prevention and emergency evacuation procedures applicable to their workplace.

(2) Workers assigned to firefighting duties in their workplace must be given adequate training, by a qualified instructor, in fire suppression methods, fire prevention, emergency procedures, organization and chain of command, firefighting crew safety and communications applicable to the workplace.

(3) Retraining for firefighting duties must be provided periodically, but not less than once a year.

(4) A worker not covered by Part 31 (Firefighting), who is assigned to firefighting duties, must be physically capable of performing the assigned duties safely and effectively before being permitted to do them.

[69] At paragraph 105 of his decision, the review officer noted that s.4.16 used the words “assigned to” in relation to workers who were not covered by Part 31, but who were given “fire fighting duties.” It is apparent that the review officer thought it significant that s.31.1 and s.31.2 of Part 31 used the different words, “employed in.” He stated (at paragraph 105):

It seems to me that “assigned to” best describes the worker who may be called upon to perform firefighting duties occasionally, or incidental to, their regular job.

[70] In paragraphs 106 to 112, the review officer reasons to the conclusion that Part 31 was not intended to apply to workers who (like the members of the fire party aboard the Bowen Queen) only perform firefighting duties on an incidental, or emergency basis. He concluded that s.4.16 of Part 4, which imposes less onerous requirements than Part 31, would more properly apply to the fire party aboard the Bowen Queen.

[71] Although not stated expressly, it is implicit in the review officer’s reasoning (and I think it is a common sense inference) that the more time a worker spends in the performance of firefighting activities, the greater will be the risk to the worker’s health and safety. This fact would afford a rational basis for the review officer’s implicit conclusion that Regulation 4.16 would provide adequate protection for the health and safety of the members of the fire party aboard the Bowen Queen. It would also supply a further reason for holding, as he did, that the legislature did not intend that workers in the situation of the members of the fire party should fall within the definition of “firefighter” in Regulation 31.1.

[72] It is true that the definition of “firefighter” is not expressly limited by the amount of time a worker spends in “firefighting” or “training for” firefighting. But I do not agree with Mr. Buchan’s contentions that the review officer disregarded the purpose of the Regulation and made interpretations which were inconsistent with the purpose of the O.H.S. Regulation (as defined in s.107(1) and s.111(1) of the Act). I think it is a fair inference from his express reasoning that the review officer had the underlying purpose of the Regulation in mind, and interpreted Regulation 31.1 and 31.2 in a way which he believed was consistent with that purpose. I am not persuaded that his decision conflicted with that purpose.

[73] I should add that I was not referred to any evidence that was presented to the review officer, which established that the fire party aboard the Bowen Queen would be subjected to unacceptable risks of harm if only Regulation 4.16 (and not Regulation 31) was applied to it.

[74] In my opinion, the review officer did not err in departing from the ordinary meaning of “employed in,” or in drawing a distinction between “assigned to” and “employed in.” While I am less confident about the review officer’s failure to adopt the ordinary meaning of “organization,” I think his finding that the members of the fire party did not fall within the definition of “firefighter” was a sufficient reason for deciding that the fire party was not an “industrial fire brigade.”

[75] It follows that, in my opinion, the review officer did not commit any of the errors alleged by Mr. Buchan. While this conclusion undermines the argument that the decision of the review officer was unreasonable, I will deal with that issue, in case I am wrong in saying that no error was committed.

Issue 4: Was the decision of the review officer unreasonable?

[76] The review officer decided that Regulation 31 did not apply to the fire party aboard the Bowen Queen. His essential reasons for that decision were that the fire party was not an “industrial fire brigade” and that the members of the fire party were not “employed in firefighting activities on a full or part-time basis.” The deeper, underlying reason for the decision was the review officer’s opinion that Regulation 31 was not intended to apply to workers who were only engaged in firefighting activities occasionally, as an incident of their regular jobs.

[77] At paragraph 46 of Dunsmuir, the majority asked:

. . . How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review?

[78] In subsequent paragraphs, the majority sought to define a test for measuring whether the decision of an administrative tribunal is, or is not, unreasonable. The following descriptions were given of a decision which should be characterized as being reasonable:

a) If “the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”, the decision will be reasonable. (paragraph 47; see also par’s 141, 149 and 151 per Binnie, J.)

b) . . . “there might be multiple valid interpretations of a statutory provision . . . courts ought not to interfere where the tribunal’s decision is rationally supported.” (paragraph 41)

c) In assessing reasonableness, the reviewing court must give deference to the decision of the administrative tribunal which is under review, meaning that courts must show “respect for the decision – making process of adjudicative bodies with regard to both the facts and the law”; . . . “a respectful attention to the reasons offered or which could be offered in support of a decision” . . . and “respect for the legislative choices to leave some matters in the hands of administrative decision makers . . . .” (paragraph 48 - 49)

[79] The law is clear that it is the ultimate decision of an administrative tribunal, and not each of the reasons for the decision, which must be subjected to the test of reasonableness. The reasons are to be looked at as a whole, in deciding whether they provide rational support for the decision. See Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247 at paragraph 56; Kovach v. Workers’ Compensation Board of British Columbia (2000) 184 D.L.R. (4^th) 415 (S.C.C.), adopting the dissenting reasons of Donald, J.A., particularly paragraph 26.

[80] I have found that the meanings attributed by the review officer to key words in Regulation 31.1, 31.2 and 4.16, were meanings that those words could reasonably bear, having regard to the legislative context and the surrounding circumstances. Even if I had disagreed with the interpretations of the review officer, it would be my opinion that his ultimate decision “is rationally supported” and “falls within a range of possible, acceptable outcomes.” It is my view that this conclusion is warranted by the considerable discretion conferred on the Board by the legislature to decide the issue under review, in light of the supporting reasons given by the review officer and the additional reasons which in my view could be offered in support of the decision.

[81] It follows that, in my judgment, the petitioner has failed to show that the decision of the review officer was unreasonable.

The Constitutional Issue

[82] The potential constitutional issue is one involving the division of powers between the federal and provincial governments. It is common ground that Regulation 31 is valid provincial legislation in relation to property and civil rights in British Columbia, under s.92(13) of the Constitution Act 1867. On behalf of B.C. Ferry, Mr. Swanson seeks to establish that the application of Regulation 31 to the fire party aboard the Bowen Queen (and by analogy to fire parties aboard all other ferries operated by B.C. Ferry) would encroach upon a subject of legislation that falls within the exclusive jurisdiction of Parliament under s.91(10), to make laws in relation to navigation and shipping. The remedy which could be sought by B.C. Ferry is, I think, that Regulation 31 would be “read down” so as not to apply to firefighting activities on board B.C. Ferry vessels.

[83] All parties except B.C. Ferry took the position that the constitutional issue could not arise and should not be decided, if the court did not set aside the decision of the review officer. That is consistent with the firm position taken by the Board and the Attorney General at the outset that B.C. Ferry could only rely on the constitutional issue as a second possible defence to the application of Regulation 31 to the fire party, if it became necessary.

[84] There has long been a practice of judicial restraint in constitutional cases. The principle is that the court should not decide any constitutional issue unless it is necessary for the determination of the case. The Supreme Court of Canada has stated and re-affirmed this principle in a number of cases. For example, see Phillips v. Nova Scotia (Commissioner of Inquiry into the Westray Mine Tragedy) [1995] 2 S.C.R. 97 per Sopinka, J. at paragraphs 9 and 10.

[85] Ms. Jackson, counsel for the Attorney General, made the lead argument on this point, which was concurred in by Mr. Nielsen for the Board. In my opinion, this point was well taken.

[86] Mr. Swanson stressed the importance of a decision on the constitutional issue to B.C. Ferry. It was said that the issue will likely arise again, if the court does not decide it in this case. Counsel may be right about that because, in deciding that Regulation 31 did not apply to the fire party aboard the Bowen Queen, the review officer effectively decided that Regulation 4.16 did apply to it. To this reason, I would add that the issue has now been fully argued by skilled lawyers.

[87] While Mr. Swanson’s argument for a decision on the constitutional issue is attractive, I cannot accede to it. I decline to decide the constitutional issue, for the reason that it is unnecessary to do so.

[88] On hindsight, I think it would have been better to have limited the hearing to the issue raised by the Ferry Workers, and postponed the constitutional issue pending the decision on that issue. I do not recall any specific suggestion by counsel to that effect, and unfortunately I did not think of it. But of course, hindsight is always 20-20.

Disposition

[89] The application of the petitioner is dismissed.

Costs

[90] Costs were not spoken to. If that issue cannot be resolved by counsel, there will be liberty to apply.

____________________________

Mr. Justice D.A. Halfyard

Citation:	*British Columbia Ferry and Marine Workers' Union v Workers Compensation Board,*
	2008 BCSC 1184