|
Date: |
|||
|
|
Docket: |
L000212 |
|
|
Registry: |
|||
|
IN THE SUPREME COURT OF |
|||
|
BETWEEN: |
|||
|
B.C. LIQUOR LICENCEES & RETAILERS ASSOCIATION AND 556267 BRITISH COLUMBIA LTD.
|
|||
|
PETITIONERS |
|||
|
AND: |
|||
|
WORKERS’ COMPENSATION BOARD OF |
|||
|
RESPONDENT |
|||
|
REASONS FOR JUDGMENT
OF THE
HONOURABLE MADAM JUSTICE STROMBERG-STEIN |
|
Counsel for the petitioners: |
F.T. Williamson D.H. Laudan
|
|
Counsel for the respondents: |
G.W. Massing S.A. Nielsen L. Courtenay
|
|
Dates and Place of Hearing: |
March 13 and 14, 2000 |
|
|
Vancouver, BC |
[1] The mandate of the Workers Compensation Board (the “Board”) includes the authority to make regulations for industrial health and safety in the workplace. Before a regulation can be adopted, the Board must hold a public hearing and give proper notice to affected parties. The Board undertook to regulate environmental tobacco smoke in the workplace, but in recognition of its limitations in regulating the actions of the public, the draft regulations circulated in advance of the public hearings exempted the public areas of public entertainment facilities including bars, pubs and restaurants, and long term residential facilities including extended care facilities and prisons. Following the public hearings, the Board purported to exercise its delegated legislative authority to enact regulations that included a “sunset clause”, placing a time limitation on the exemption effectively prohibiting environmental tobacco smoke in any workplace commencing January 1, 2000. The Board did not disclose its intention to expand the proposed draft regulatory scheme to the previously exempted facilities. Moreover, the Board was aware that representatives from the exempted facilities most directly and substantially affected by the impact of the “sunset clause” had not participated in the public hearings.
[2] The Board’s prohibition of second hand smoke in these workplaces has proved to be controversial since it is impossible to segregate the public to areas where workers are not required to enter. The result has been to create a complete smoking ban for the previously exempted facilities. Complaints range from interference with private rights of members of the public, to interference with the economic viability of businesses and the loss of jobs as businesses have lost customers. Employers, threatened with administrative and quasi-criminal penalties of fines up to $1 million and/or 12 months in jail, have been forced to assume the role of policing the members of the public who use their facilities by prohibiting them from smoking.
[3] The issue is the substance of the notice of the public hearings. The question is whether the Board had jurisdiction to enact a “sunset clause”, removing the exemption and expanding the prohibition of environmental tobacco smoke in the workplace to areas used by the public in previously exempted facilities, without proper notice to those affected. In other words, did the Board hold a proper public hearing in accordance with s. 71(1) of the Workers Compensation Act, R.S.B.C. 1996, c.492 (the “Act”)[1], prior to enacting s. 4.83(3) of the Occupational Health and Safety Regulation - B.C. Reg 296/97 (the “Regulation”)?
Position of the Petitioners
[4] Pursuant to the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, the petitioners, representatives of the hospitality sector, seek a declaration that s. 4.83(3) of the Regulation is null and void. The petitioners argue that s. 4.83(3) was enacted without jurisdiction. It is submitted that the notice provided and the public hearings conducted were insufficient to meet the requirements of s. 71(1) of the Act since s. 4.83(3) did not form part of the draft regulations circulated in advance of the public hearings.
Position of the Respondent
[5] The respondent argues that public hearings were held in compliance with s. 71(1) of the Act. Public consultation and public hearings were conducted on over 900 regulations, including s. 4.83 regulating environmental tobacco smoke in the workplace. That regulation was the subject of oral and written submissions at these public hearings and the change to the draft regulation, by including the “sunset clause” in s. 4.83(3), was responsive to and developed from submissions made at the public hearings. The respondent further argues that the privative clause contained in s. 96 of the Act protects the Board from judicial review.
Facts
[6] The facts are not in dispute. Starting in 1991, the Board undertook an exhaustive review of all the health and safety regulations governing the safety of the workplace. There was an extensive consultation and review process with employer and worker stakeholders, culminating in draft occupational health and safety regulations in 1996.
[7] One proposed regulation, which was an entirely new regulation, concerned the regulation of second hand smoke in the workplace. The purpose of the regulation was to require employers to control the exposure of workers at a workplace to environmental tobacco smoke. The final draft of the proposed regulation required protection for employees from environmental tobacco smoke, either by banning smoking from the workplace or by requiring the employer to provide ventilated or enclosed smoking areas. However, the proposed regulation exempted certain facilities frequented by third party smokers who were not subject to the jurisdiction of the Board, and only sought to minimize the effect of second hand smoke in these facilities by the use of reasonable and practicable controls.
[8] The draft regulation circulated in advance of the public hearings was as follows:
Draft Occupational Health and Safety Regulations:
INDOOR AIR QUALITY
…
4.71 The employer must control the exposure of workers to environmental tobacco smoke by
(a) prohibiting smoking in the workplace, or
(b) restricting smoking to designated smoking areas or by other equally effective means.
…
4.73 (1) In public entertainment facilities and long term residential facilities, areas that are used by the public are exempt from the requirements of regulation 4.71 if the exposure of workers to environmental tobacco smoke is minimized by the use of all reasonable and practicable controls, including administrative and engineering controls.
(2) For the purposes of clause (1) public entertainment facilities include restaurants, bars and games rooms, and long term residential facilities include extended care facilities and prisons.
[9] Over 10,000 copies of the draft regulations were mailed to the public in advance of the public hearings. In the fall of 1996, public hearings were held throughout the Province in 11 venues and over a period of 13 days. Anyone who wanted to make a submission, oral or written, was permitted to do so. Submissions were made by a number of individuals and representatives of a variety of groups: some opposing the regulation of environmental tobacco smoke, some supporting it, and some recommending changes to eliminate any exemptions or separate standards. One submission recommended a "sunset clause" which would impose a time limitation on the exempted facilities. With the exception of one restaurateur, representatives of the hospitality sector did not attend the public hearings or make submissions, apparently believing that they were exempt from the prohibition in respect of their public access areas.
[10] Following the public hearings a summary of the submissions was transcribed, collated by topic, and circulated to working groups established to review and recommend changes to the draft regulations. This process took place behind closed doors. The hospitality sector was not represented in the working group that considered the environmental tobacco smoke regulations.
[11] A Panel of Administrators made many changes to the draft regulations in accordance with the submissions made at the public hearings and the recommendations of the working groups. One such change approved the extention of the regulation of environmental tobacco smoke in the workplace to the public access areas of the exempted facilities by the addition of a "sunset clause", effective January 1, 2000.
[12] The affected facilities were never informed that the Board was considering revising the draft regulations to apply to their public access areas. The lack of participation on behalf of the hospitality sector was noted by the Panel to suggest demonstration of support for the exemption. Further, the Panel acknowledged that the impact of the regulatory enactment on the various public entertainment facilities was an unknown factor. Nonetheless, without further consultation with the affected facilities to obtain highly relevant information and views, without warning, and without a further public hearing, the scope of the regulation was expanded to apply to the public access areas of the previously exempted facilities.
[13] The regulation enacted on April 15, 1998 read:
Occupational Health and Safety Regulation B.C. Reg 296/97:
4.81 The employer must control the exposure of workers to environmental tobacco smoke by
(a) prohibiting smoking in the workplace, or
(b) restricting smoking to designated smoking areas or by other equally effective means.
…
Public areas
4.83 (1) For the purposes of this section public entertainment facilities include restaurants, bars and games rooms, and long term residential facilities include extended care facilities and prisons.
(2) In public entertainment facilities and long term residential facilities, areas that are used by the public are exempt from the requirements of section 4.81 if the exposure of workers to environmental tobacco smoke is minimized by the use of all reasonable and practicable controls, including administrative and engineering controls
(3) The exemption provided in subsection (2) expires on January 1, 2000.
(My emphasis.)
[14] The effect of s. 4.83(3) has been to prohibit smoking in public entertainment facilities, including restaurants, bars and games rooms, and long term residential facilities including extended care facilities and prisons since January 1, 2000.
Analysis
[15] The complaint is with respect to the substance, not the mechanics, of the notice and the sufficiency of the public hearings. Section 71(1) of the Act provides:
s.71(1) The board may make regulations, whether of general or special application and which may apply to employers, workers and all other persons working in or contributing to the production of an industry within the scope of this Part, for the prevention of injuries and occupational diseases in employments and places of employment… Before the adoption of a regulation a public hearing must be held, and not less than 10 days before the hearing a notice of it must be published in at least 3 newspapers, of which one must be published in the city of Victoria and one in the city of Vancouver. A defect or inaccuracy in the notice or in its publication does not invalidate a regulation made by the board.
(My emphasis.)
[16] The giving of notice and the conducting of a public hearing are absolutely fundamental to the establishment of the Board’s jurisdiction to make regulations having regard to s. 71(1). There is a distinction between the ability of this Court to review substantive determinations and findings of fact and law made by an inferior tribunal, and the ability to consider a breach of a procedural condition precedent to the taking of jurisdiction by an inferior tribunal to enact subordinate legislation. Subordinate legislation will be declared invalid if the procedure in the enabling statute for making the regulation is not observed. This is procedural ultra vires, as distinct from substantive ultra vires: see Boutilier et al. v. Cape Breton Development Corp. (1972), 34 D.L.R. (3d) 374 (N.S.S.C.); and S.A. De Smith, De Smith’s Judicial Review of Administrative Action, 4th ed. by J. M. Evans. (London: Stevens & Sons Limited, 1980) at pp. 154 and 155. The privative clause contained in s. 96 of the Act has no application and the case of Vancouver (City) v. British Columbia (Workers’ Compensation Board) (1995), 2 B.C.L.R. (3d) 321 (B.C.C.A.) is readily distinguishable.
[17] The respondent argued that since the Board enacted regulations applicable to the entire Province, the standard of procedural fairness to be applied should resemble the less strict standard applicable to legislative, executive or administrative functions, rather than the more onerous standard applicable to quasi-judicial, judicial or adjudicative functions. The petitioner cited Old St. Boniface Residents Association Inc. v. Winnipeg (City) (1990), 75 D.L.R. (4th) 385, [1990] 3 S.C.R. 1170 (S.C.C.), as authority that the application of the rules of natural justice, including audi alteram partem (to hear both sides), is based on a number of factors including the terms of the statute, the nature of the particular function of the body, and the type of decision it is called upon to make. In Old St. Boniface, at p.1191, Sopinka J. for the majority stated:
…The content of the rules of natural justice and procedural fairness were formerly determined according to the classification of the functions of the tribunal or other public body or official. This is no longer the case and the content of these rules is based on a number of factors including the terms of the statute pursuant to which the body operates, the nature of the particular function of which it is seized and the type of decision it is called upon to make. …
[18] It is worth noting, however, that even the least onerous standard imposes a duty of fairness in the exercise of a discretion legislatively granted: Nicholson v. Haldimand Norfolk (Regional) Police Commissioners, [1979] 1 S.C.R. 311 (S.C.C.).
[19] Counsel for the petitioner relies upon a variety of cases which consider the validity of municipal by-laws enacted without strict adherence to procedural requirements: see Norman v. Port Moody (City) (1995), 17 B.C.L.R. (3d) 208 (B.C.S.C.); Jones v. Delta (Corporation) (1992), 69 B.C.L.R. (2d) 239 (B.C.C.A.); and Re Karamanian and Township of Richmond (1982), 138 D.L.R. (3d) 760 (B.C.S.C.). Counsel for the respondent submits that these cases, as well as the American cases cited, are distinguishable on the basis of more detailed and explicit procedural requirements set out in the relevant statutory provisions: see American Bankers Life Assurance Company of Florida v. Division of Consumer Counsel Office, 263 S.E. 2d 867 (Va. 1980); Home Box Office, Inc. v. F.C.C., 567 F.2d 9 (D.C. Cir. 1977); Flue-Cured Tobacco Co-op v. U.S.E.P.A., 4 F.Supp.2d 435 (M.D.N.C. 1998); and BASF Wyandotte Corp. v. Costle, 598 F.2d 637 (1st Cir. 1979).
[20] Counsel for the respondent further submits that the case of Pulp, Paper and Woodworkers of Canada v. Workers’ Compensation Board (1979), 14 B.C.L.R. 144 (B.C.S.C), the only judicial consideration of s.71(1) to date, sets out the test which should govern the result here.
[21] In the Pulp, Paper case, the petitioner applied pursuant to the Judicial Review Procedure Act for a declaration that the respondent had acted without jurisdiction in approving certain amendments to the health and safety regulations without a prior hearing of the proposed amendments. The Court held that in respect of the changes which emanated from submissions and discussions at the public hearing, the respondent had not exceeded its jurisdiction. However, in respect of one sub-regulation, for which there had been no suggestion at the public hearing that a change would occur, the Court held that the respondent had acted beyond its jurisdiction. This case is of little assistance as it does not disclose the type of changes to the regulations which emanated from the public hearing, and thus does not provide any guidance as to the nature or significance of changes which can justifiably emanate from the public hearing process.
[22] The American case of BASF provides some insight into the reasonable limits which should be placed upon such an ‘emanation’ test. There, Coffin C.J. stated at p. 642:
The procedural rules were meant to ensure meaningful public participation in agency proceedings, not to be a straitjacket for agencies. An agency’s promulgation of proposed rules is not a guarantee that those rules will be changed only in the ways the targets of the rules suggest. “The requirement of submission of a proposed rule for comment does not automatically generate a new opportunity for comment merely because the rule promulgated by the agency differs from the rule it proposed, partly at least in response to submissions.” … Even substantial changes in the original plan may be made so long as they are “in character with the original scheme” and “a logical outgrowth” of the notice and comment already given. …
The essential inquiry is whether the commenters have had a fair opportunity to present their view on the contents of the final plan. We must be satisfied, in other words, that given a new opportunity to comment, commenters would not have their first occasion to offer new and different criticisms which the Agency might find convincing. … Thus, where the final rules “are the result of a complex mix of controversial and uncommented upon data and calculations”, remand may be in order. … Similarly, where the Agency adds a new pollution control parameter without giving notice of intention to do so or receiving comments, there must be a remand to allow public comment. …
(My emphasis.)
[23] Following the approach taken in Old St. Boniface, I must consider the terms of the statute, the nature of the particular function, and the type of decision being made, in order to determine the content of the procedural rules applicable to the Board in this case.
[24] The giving of “notice” and the holding of a “public hearing” are mandatory procedural requirements under s. 71(1) of the Act. However, it falls to this Court to determine the scope and content of these procedural requirements as they have not been expressly defined in the Act. In so doing, s. 71(1) must be interpreted in a manner which is both internally consistent, as well as consistent with the object and purpose of the overall scheme of the Act.
[25] Section 71(1) is contained in Part 1 of the Act entitled ‘Compensation to Workers and Dependants’. Section 2 sets out the application of Part 1 as follows:
2(1) This Part applies to all employers, as employers, and all workers in British Columbia except employers or workers exempted by order of the board.
(2) The Board may direct that this Part applies
on the terms specified in the board’s direction
(a) to an independent operator who is neither an employer nor a worker as though the independent operator was a worker, or
(b) to the employer as though the employer was a worker.
(3) The application of this Part under subsection (2) to an employer does not exempt the employer, as an employer, from the application of this Part.
[26] When read together with s. 71(1), it is apparent that the Board has jurisdiction to enact regulations in furtherance of occupational health and safety within the workplaces of British Columbia. However, the discretion to enact such regulations is not unfettered. It is clear from the requirements of s. 71(1) that the legislature intended to provide an avenue for those most affected to have their views heard and considered by the Board prior to the adoption of proposed regulations. Furthermore, any vehicle which facilitates the exchange of public debate is particularly important where legislative authority has been delegated to a body that is not directly accountable to the electorate. Moreover, where the impact of a given regulation is so far-reaching as to extend to those beyond the jurisdiction of the Board, where the impact is so significant as to pose a risk to the private economic interests of both employers and workers, and where the impact is so onerous as to impose a policing function upon employers coupled with severe penalties for non-compliance - then public debate is of paramount importance. This is particularly so where the Board itself recognized a lack of critical information which is both necessary and relevant in the process of weighing the various interests at stake. It is against this backdrop that I must determine the sufficiency of the notice provided.
[27] Generally speaking, where a publication brings an awareness to an ordinary, reasonable reader that he/she will likely be affected by the proposed regulation, it will be considered adequate notice to the reader. The notice provided by the Board did not meet this ‘awareness’ test in relation to the “sunset clause”. None of the cases cited by counsel involved a change after the public hearing process which completely eliminated an exempting provision. I find it difficult to conceive of notice which could be more potentially misleading than the notice here where certain facilities, including the hospitality sector, were assured that their interests were not affected, only to later find the extreme opposite effect. The inadequacy of the notice was apparent from the mere fact that those who might reasonably have been expected to object to the removal of the exemption made no submissions at the public hearings.
[28] In my view, where changes ultimately flowing from the public hearing process are so significant as to render the original notice insufficient to have alerted those whose interests may be affected, then that notice and the public hearings are inadequate for the purpose of the newly constituted regulation. To hold otherwise would undermine the very purpose of the public hearing process and would lead to an unfair process by which only some of those affected would be afforded the opportunity to raise their concerns and objections. This approach is consistent with the reasoning in BASF and will not sacrifice the administrative efficiency or economy of the Board. Inadequate notice can be avoided by ensuring that proposed regulations are drafted to reflect the broadest possible application so as to avoid a premature narrowing of the affected audience.
[29] In my view, the saving provision in s. 71(1) which states “…[a] defect or inaccuracy in the notice or in its publication does not invalidate a regulation made by the Board”, must be confined to procedural irregularities which do not prejudice the substantive rights or interests of affected parties. It would be illogical for the legislature to require that notice be given to affected parties, while at the same time indicating that such notice need not be given to those parties.
Discretionary Remedy
[30] Counsel for the respondent submits that since judicial review is a discretionary remedy, this Court should decline to provide a remedy to the petitioner. It is argued that the petitioners delayed in bringing this petition before the Court, are guilty of unclean hands, and have alternative remedies available by way of the Act. I do not find any of these arguments persuasive on the facts of this case because of the serious defect in the public hearing process and the serious consequences flowing from that defect.
Conclusion
[31] The regulation enacted was not the draft regulation that was the subject of the public hearings. The Board had no jurisdiction to enact a “sunset clause”, removing an exemption and expanding the prohibition of environmental tobacco smoke in the workplace to areas used by the public in previously exempted facilities, without proper notice to those affected. The Board failed to hold a proper public hearing in accordance with s. 71(1) of the Act, prior to enacting s. 4.83(3). I find s. 4.83(3) of the Occupational Health and Safety Regulation - B.C. Reg 296/97 to be invalid. The petitioners are entitled to a declaration that s. 4.83(3) is null and void.
Costs
[32] In the normal course, the petitioners are entitled to their costs on Scale 3. If the parties cannot reach an agreement on costs, they may make written submissions within 30 days of the date this judgment is filed.
"S. Stromberg-Stein, J."
The Honourable Madam Justice S. Stromberg-Stein
[1] The Workers Compensation Act was repealed and replaced in 1998, but the parties agree that the relevant legislation for the purpose of this hearing is the 1996 Act.