Pasiechnyk v. Saskatchewan (Workers’ Compensation Board)

Pasiechnyk v. Saskatchewan (Workers’ Compensation Board)
Collection
Supreme Court Judgments
Date
1997-08-28
Report
[1997] 2 SCR 890
Case number
24913
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; McLachlin, Beverley; Major, John C.
On appeal from
Saskatchewan
Subjects
Administrative law
Notes
SCC Case Information: 24913
Decision Content
Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890
The Workers’ Compensation Board
and the Government of Saskatchewan Appellants (Respondents)
v.
Elaine Pasiechnyk, Rhonda McFarlane, Ronald
MacMillan, Gordon Thompson, Orval Shevshenko,
Clifford Sovdi, Aaron Hill and Larry Marcyniuk Respondents (Applicants)
and
Pro‑Crane Inc., Saskatchewan Power Corporation
and the Attorney General for Saskatchewan Respondents (Interveners)
and
The Workers’ Compensation Board of Alberta,
the Westray Families, Sheila Fullowka,
Doreen Shauna Hourie, Tracey Neill,
Judit Pandev, Ella May Carol Riggs
and Doreen Vodnoski Interveners
Indexed as: Pasiechnyk v. Saskatchewan (Workers’ Compensation Board)
File No.: 24913.
1997: April 30; 1997: August 28.
Present: Lamer C.J. and La Forest, L’Heureux‑Dubé, Sopinka, Gonthier, McLachlin and Major JJ.
on appeal from the court of appeal for saskatchewan
Administrative law ‑‑ Judicial review ‑‑ Privative clause ‑‑ Compensation scheme barring actions against employers if compensation received ‑‑ Compensation received and action launched alleging breach of statutory duty ‑‑ Workers’ Compensation Board determining actions statute barred ‑‑ Standard of review (patent unreasonableness or correctness) applicable ‑‑ If patent unreasonableness, was the Board’s decision patently unreasonable ‑‑ If correctness, was the Board’s decision correct ‑‑ Workers’ Compensation Act, 1979, S.S. 1979, c. W‑17.1, ss. 2(f)(ii), (g), (j), (k)(i), (ii), (iii), (t), 3(1), 22(1)(b), (h), (i), (2), 28, 44, 57, 167, 168, 180.
SaskPower workers were killed and others injured by a falling crane owned by Pro-Crane. Injured workers and dependants of deceased workers qualified for and received workers’ compensation benefits. The respondents launched an action against SaskPower, Pro-Crane, and the Saskatchewan Government. The claim against the government alleged that it failed to meet its duties under The Occupational Health and Safety Act by failing to inspect the crane adequately. The government, Pro‑Crane and SaskPower successfully applied to the Workers’ Compensation Board for a determination of whether the actions were barred by the Act. The Court of Queen’s Bench dismissed the respondents’ application for judicial review. The Court of Appeal allowed the respondents’ appeal with respect to the action against the government but not with respect to the actions against Pro-Crane and SaskPower. This appeal involves only the action against the Government of Saskatchewan. The issues considered here were: (1) whether the standard of review to be applied was patent unreasonableness or correctness, and (2) whether, applying the proper criterion, the Board’s decision should be reviewed.
Held (L’Heureux‑Dubé J. dissenting): The appeal should be allowed.
Per Lamer C.J. and La Forest, Sopinka, Gonthier and Major JJ.: The standard of review applicable depends on whether the subject matter of the administrative tribunal’s decision was subject to a privative clause having full privative effect. If so, the decision is only reviewable if it is patently unreasonable or if the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal’s powers. In either circumstance the tribunal will have exceeded its jurisdiction.
A “full” or “true” privative clause declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference. The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In applying the test, a functional and pragmatic approach is to be taken. Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature.
The privative clause here (s. 22) was clearly intended to and applies to all issues that fall to be decided under the Act unless the issue is one that limits jurisdiction. The words “final and conclusive” in s. 168 do not indicate that the section was to have its own “stand‑alone” privative clause. The wording of s. 168 responds directly to the test: did the legislature intend to commit the matter exclusively to the Board?
The Board’s exclusive jurisdiction to decide the question of whether the statutory bar applies is supported by the history and purpose of workers’ compensation. The Board’s composition, tenure, and powers demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system.
A determination that an action is statute barred involves a determination of the very issues that go into determining whether the injured person is eligible for compensation. Every potential defendant, however, is not relieved of liability once the injured person has been found eligible for compensation. The Act contemplates that some rights of action will remain.
The question before the Board on an application under s. 168 is whether the plaintiff is eligible for compensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers’ compensation system. In both cases, the Board is passing on a matter that relates intimately to the purposes and structure of the workers’ compensation system and that is expressed in terms whose meaning is inseparable from their meaning elsewhere in the Act.
The questions of eligibility for compensation and of whether an action is barred are within the Board’s exclusive jurisdiction. The issue as to whether the proposed action is barred is also one that is committed to the Board for final decision and not reviewable unless it is patently unreasonable.
The Board asked itself four questions: (1) was the plaintiff a worker within the meaning of the Act; (2) if so, was the injury sustained in the course of employment; (3) is the defendant an employer within the meaning of the Act; and, (4) if so, does the claim arise out of acts or defaults of the employer or the employer’s employees while engaged in, about or in connection with the industry or employment in which the employer or worker of such employer causing the injury is engaged. These were the appropriate questions and the Board’s decision could not be said to be patently unreasonable.
The government, although not an “industry” in the ordinary sense of the term, must be understood to be an industry within the context of the workers’ compensation scheme. It is expressly included as an “employer” under the Act and pays premiums into the fund. The question, however, is whether the action is barred by s. 167. The “dual capacity” theory, which would divide the role of the government in accordance with its public and private duties, has no application here. The existence of a private law duty and hence a cause of action is not in issue.
It was not necessary to find that the Board was correct in order to uphold its decision. Applying the appropriate standard, clearly the Board’s decision is not patently unreasonable.
Per McLachlin J.: The dual capacity argument ‑‑ if the government is sued as employer, the Board can exclude actions in courts on the patently unreasonable standard, but if it is sued as regulator, the courts have equal expertise and the Board cannot exclude court actions ‑‑ cannot stand. It would undermine the Board’s power to determine whether actions are barred and introduce uncertainty into the system. Ultimately, the historic trade‑off between secure no‑fault compensation for all injuries and fault‑based recovery in the courts would be undermined. Further, the embracive wording of s. 180 indicates that the legislators intended to endow the Board with exclusive power to decide whether employee actions arising from workplace mishaps proceed, notwithstanding their legal characterization. The Board therefore had to consider whether the facts of the case and the relationship between the parties supported the conclusion that the action is barred.
Per L’Heureux‑Dubé J. (dissenting): The approach in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, should be applied with the emphasis not on the legislative intent behind the privative clause but rather on the general intent underlying the legislative scheme as a whole. Since, as a matter of constitutional law, a legislature may not protect an administrative body from review on matters of jurisdiction, it cannot decide freely which matters are jurisdictional and which come within the Board’s exclusive jurisdiction. Here, whether an action is barred by s. 168 of the Act may or may not be within the Board’s exclusive jurisdiction depending on the precise nature of the question and its relation to the Board’s expertise. The question before the Board ‑‑ whether the Government of Saskatchewan, even though it may not be sued as an employer by reason of s. 44 of the Workers’ Compensation Act, may be sued at common law in its capacity as regulator ‑‑ is one for which the Board has no special expertise. Since the matter is not one that falls within the Board’s protected jurisdiction, the proper criterion for review should be correctness, not patent unreasonableness.
The Board erred in declaring that any action against the government qua regulator is barred by the Act. At common law, the government owes a duty of care under certain circumstances and this duty may give rise to an action for negligence. Nothing in the Act abolishes this particular right of action. Indeed, reliance on ss. 44, 167 and 180, which explicitly exclude all rights of action “against the employers” begs the question as to whether the government can be sued in a capacity other than that of an employer. The purpose of the Act does not militate against such a right of action. Absent any provision excluding the common law right of action, the reasons for justifying an implicit exclusion would have to be strong. Here, the “historic trade-off” between employers and employees that resulted in the scheme would not be compromised by the possibility of actions against government qua regulator. There is no reason why employers would complain of such actions and want the regime abolished for that reason.
Cases Cited
By Sopinka J.
Applied: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; considered: Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46; Mack Trucks Manufacturing Co. v. Forget, [1974] S.C.R. 788; referred to: Pasiechnyk v. Procrane Inc. (1991), 94 Sask. R. 288, aff’d (1992), 97 Sask. R. 286; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Dayco (Canada) Ltd. v. CAW‑Canada, [1993] 2 S.C.R. 230; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501; Medwid v. Ontario (1988), 48 D.L.R. (4th) 272; Peter v. Yorkshire Estate Co., [1926] 2 W.W.R. 545; Alcyon Shipping Co. v. O’Krane, [1961] S.C.R. 299; Farrell v. Workmen’s Compensation Board, [1962] S.C.R. 48; Crowsnest Air Ltd. v. Workers’ Compensation Board (Sask.) and Stolar (1995), 128 Sask. R. 144; Anns v. Merton London Borough Council, [1978] A.C. 728; Just v. British Columbia, [1989] 2 S.C.R. 1228.
By McLachlin J.
Referred to: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929.
By L’Heureux‑Dubé J. (dissenting)
U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46; Farrell v. Workmen’s Compensation Board, [1962] S.C.R. 48; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Just v. British Columbia, [1989] 2 S.C.R. 1228; City of Kamloops v. Nielsen, [1984] 2 S.C.R. 2; Anns v. Merton London Borough Council, [1978] A.C. 728.
Statutes and Regulations Cited
Building Trades Protection Act, R.S.S. 1978, c. B‑8.
Constitution Act, 1867, s. 96 .
Labour Code, R.S.Q., c. C‑27, s. 45.
Occupational Health and Safety Act, R.S.S. 1978, c. O‑1.
Workers’ Compensation Act, 1979, S.S. 1979, c. W‑17.1, ss. 2(f)(ii), (g), (j), (k)(i), (ii), (iii), (t), 3(1), 13(1), 13(1.1) [ad. 1993, c. 63, s. 4], 14(1), 15 [later am. idem, s. 6], 21.1 [ad. idem, s. 8], 22(1)(a), (b), (c) [am. 1980‑81, c. 98, s. 5], (d) [idem], (e), (h), (i), (2), 23, 28, 39 [am. 1984‑85‑86, c. 89, s. 5], 40 [am. 1988‑89, c. 63, s. 3], 44, 57, 67(1) [am. 1980‑81, c. 98, s. 11; 1984‑85‑86, c. 89, s. 13; 1988‑89, c. 63, s. 8(1)], 68 [am. 1984‑85‑86, c. 89, s. 15], 82 to 98.2, 104, 105, 106 to 115.2, 121, 135(1), 135.1 [ad. 1980‑81, c. 98, s. 21], 167, 168, 180.
Workmen’s Compensation Act, R.S.O. 1960, c. 437.
Workmen’s Compensation Act, 1929, S.S. 1928‑29, c. 73.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1995), 131 Sask. R. 275, 95 W.A.C. 275, 127 D.L.R. (4th) 135, [1995] 7 W.W.R. 1, 30 Admin. L.R. (2d) 157, [1995] S.J. No. 342 (QL), dismissing an appeal from a judgment of Scheibel J. (1993), 115 Sask. R. 111, [1993] S.J. No. 624 (QL), dismissing an application for judicial review of a decision of the Workers’ Compensation Board of Saskatchewan. Appeal allowed, L’Heureux‑Dubé J. dissenting.
Robert G. Richards, for the appellant the Workers’ Compensation Board.
Darryl Brown, for the appellant the Government of Saskatchewan.
E. F. Anthony Merchant, Q.C., and Kevin A. Clarke, for the respondents Elaine Pasiechnyk, Rhonda McFarlane, Ronald MacMillan, Gordon Thompson, Orval Shevshenko, Clifford Sovdi, Aaron Hill and Larry Marcyniuk.
Written submission only by Thomson Irvine for the respondent the Attorney General for Saskatchewan.
William P. Ostapek, for the intervener the Workers’ Compensation Board of Alberta.
Raymond F. Wagner, for the interveners the Westray Families.
J. Philip Warner, Q.C., for the interveners Sheila Fullowka, Doreen Shauna Hourie, Tracey Neill, Judit Pandev, Ella May Carol Riggs and Doreen Vodnoski.
The judgment of Lamer C.J. and La Forest, Sopinka, Gonthier and Major JJ. was delivered by
1 Sopinka J. -- This case raises the issue of the correct standard of review of a determination of the Saskatchewan Workers’ Compensation Board (the “Board”) that an action was barred by The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1 (the “Act”). It also raises the issue of whether the government, when it acts as a regulator, is an “employer” within the meaning of the Act. I find that the determination made by the Board was protected by a full privative clause, and that it was within the jurisdiction of the Board. The Board’s decision that the government was an “employer” and thus entitled to benefit from the statutory bar was not patently unreasonable.
Facts
2 On May 25, 1990 a crane owned by Pro-Crane fell over onto a trailer in which employees at a Saskatchewan Power Corporation (“SaskPower”) construction site were taking their morning coffee break. Two workers died and six others suffered serious and debilitating injuries. The injured workers and the dependants of the deceased workers qualified for and received workers’ compensation benefits.
3 In January 1991, the respondents launched an action against SaskPower, Pro-Crane, and the Saskatchewan Government. The claim against the government alleged that it failed to meet its duties under The Occupational Health and Safety Act, R.S.S. 1978, c. O-1, by failing adequately to inspect the crane. The government, Pro-Crane and SaskPower applied to the Board under s. 168 of the Act for, among other things, a determination of whether the actions were barred by the Act. The respondents applied for an order of prohibition to prevent the Board from making this determination. Both the Saskatchewan Court of Queen’s Bench and the Court of Appeal rejected the respondents’ submission that the Board lacked jurisdiction to determine whether the actions were barred by the Act: see Pasiechnyk v. Procrane Inc. (1991), 94 Sask. R. 288 (Q.B.), aff’d (1992), 97 Sask. R. 286 (C.A.).
4 The Board held that the government, Pro-Crane and SaskPower were “employers” within the meaning of the Act, and accordingly the actions were barred by the Act. The Saskatchewan Court of Queen’s Bench dismissed the respondents’ application for judicial review. The Saskatchewan Court of Appeal allowed the respondents’ appeal with respect to the action against the government but not with respect to the actions against Pro-Crane and SaskPower. This appeal involves only the action against the Government of Saskatchewan.
Relevant Statutory Provisions
5 The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1
2. In this Act:
...
(f) “employer” includes any person, corporation, firm, association or body having in its service any worker engaged in any work in, about or in connection with an industry and includes:
...
(ii) the Crown in right of Saskatchewan and in right of Canada insofar as the latter in its capacity as an employer submits to the operation of this Act, any provincial permanent board or commission appointed in respect of any employment whatever and municipal corporations and school boards, and commissions and boards having the management of any work or service operated for a municipal corporation;
...
(g) “employment” includes employment in an industry or any part, branch or department of an industry, irrespective of whether the worker’s duties are performed at, near or away from the employer’s plant or business premises;
...
(j) “industry” means an industry to which this Act applies and includes establishment, undertaking, trade and business;
(k) “injury” means:
(i) the results of a wilful and intentional act, not being the act of the worker;
(ii) the results of a chance event occasioned by a physical or natural cause; and
(iii) any disablement;
arising out of and in the course of employment;
...
(t) “worker” means a person who has entered into or works under a contract of service or apprenticeship, ...
3. -- (1) This Act applies to all employers and workers engaged in, about or in connection with any industry in Saskatchewan except those industries excluded by a regulation or order of the Lieutenant Governor in Council or by section 10.
...
22. -- (1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which a power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine:
...
(b) whether any injury has arisen out of or in the course of an employment;
...
(h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned;
(i) whether any worker is within the scope of this Act.
(2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court.
...
28. Where, in an industry, a worker suffers an injury, he is entitled to compensation which shall be paid by the board out of the fund.
...
44. No employer and no worker or any dependent of a worker has a right of action against an employer or a worker with respect to an injury sustained by a worker in the course of his employment.
...
167. The right to compensation provided by this Act is in lieu of all rights of action, statutory or otherwise, to which a worker or his dependants are or may be entitled against the employer of the worker for or by reason of any injury sustained by him while in the employment of the employer.
168. Any party to any action may apply to the board for adjudication and determination of the question of the plaintiff’s right to compensation under this Act or as to whether the action is one barred by this Act, and that adjudication and determination is final and conclusive.
...
180. Except as otherwise provided in this Act, all rights of action against the employers for injuries to workers, either at common law or under The Workmen’s Compensation Act, are abolished.
Judgments Below
The Workers’ Compensation Board
6 The Board found that the actions against all three defendants were barred. The Board accepted that the Act was not intended to protect persons from lawsuits merely because of their status as “employers”. Hence they formulated the requirement that the employer or its employees be engaged in an industry. In the case of the Government, its industry was “regulating”. Because the Government must act through its employees, any right of action that the respondents might have against the Government would arise from acts or defaults of government employees while they were engaged in the government’s industry of regulating.
7 The Board gave three reasons for rejecting the “dual capacity” theory advanced by the respondents: first, it does not recognize that the Government, Procrane and SaskPower are corporations and can therefore only act through their employees. Thus, they were really being sued in their capacity as employers. Second, the statute bars “all” rights of action in which workers are injured in the course of employment, with no exception for actions based solely on non-employment grounds. Third, this doctrine would allow injured workers to bring actions against their employers on some other ground of liability, thereby defeating the intention of workers’ compensation legislation.
Saskatchewan Court of Queen’s Bench (1993), 115 Sask. R. 111
8 Scheibel J. found that the Board had correctly concluded that Procrane, SaskPower and the Government were employers with workers engaged in an industry. He found that because an industry is an undertaking of any kind, what the government does is its industry. In the present case, the government’s industry was administering and enforcing occupational health and safety standards. If the facts alleged by the respondents were true, then they were injured as a result of a failure in connection with that industry, and that the Government therefore came within the parameters of the Act.
9 Turning to the standard of review, Scheibel J. found that because the Board is subject to a true privative clause the test for review is therefore the patently unreasonable test. He found that the Board’s decision had not been shown to be patently unreasonable; nor did the Board exceed its jurisdiction. The decision would withstand not only the patently unreasonable test, but also a test of correctness.
Court of Appeal (1995), 131 Sask. R. 275
10 Vancise J.A. noted that the Board has unique or specialized expertise and a full privative clause. However, he found that the question the Board had to answer under s. 168 was jurisdictional, because s. 168 delimits the Board’s power, and because the relevant legal framework for the question of whether the government can be sued in tort in its capacity as regulator, despite the statutory bar, was The Occupational Health and Safety Act and the common law, not the Act. Since The Occupational Health and Safety Act is outside the Board’s jurisdiction, he found that the correctness standard of review was applicable.
11 In determining that the Board’s decision was incorrect, Vancise J.A., accepted the “dual capacity” doctrine, according to which an action against the government qua regulator is not barred, even though an action against the government qua employer would be barred.
12 Wakeling J.A. dissented only on the issue of whether the actions against the Government of Saskatchewan should be allowed to proceed. He began by noting that since the first appellate decision in the matter decided that the Board had jurisdiction to hear and determine the issue, the test to be applied to the result was whether it was patently unreasonable. He also found that s. 168 clearly gave the Board jurisdiction to deal with the issue.
13 Wakeling J.A. was also of the opinion that the Board’s decision was not patently unreasonable, and, was, in fact, correct. In rejecting the “dual capacity” doctrine, he noted that the Act expresses a concern with how the claim arises, and not the nature of the liability. The Act does not distinguish between kinds of claims, but bars all claims against employers.
Issues
14 There are three issues in this appeal:
1. the standard of review;
2. if the standard of review is patent unreasonableness was the decision of the Board patently unreasonable; and
3. if the standard of review is correctness, was the Board correct in determining that the action against the government was statute barred?
15 I have decided that the standard of review is patent unreasonableness and therefore the third issues does not arise.
Analysis
Standard of Review
16 To determine the standard of review, I must first decide whether the subject matter of the decision of the administrative tribunal was subject to a privative clause having full privative effect. If the conclusion is that a full privative clause applies, then the decision of the tribunal is only reviewable if it is patently unreasonable or the tribunal has made an error in the interpretation of a legislative provision limiting the tribunal’s powers. In either circumstance the tribunal will have exceeded its jurisdiction. These principles are summarized in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1086:
It is, I think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error:
1. if the question of law at issue is within the tribunal’s jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;
2. if however the question at issue concerns a legislative provision limiting the tribunal’s powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.
These two propositions derive their force in part from s. 96 of the Constitution Act, 1867 . A legislature cannot completely insulate a tribunal from the superintending and reforming power of the superior courts. To attempt this would be to attempt to constitute the tribunal as a superior court: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220.
17 A “full” or “true” privative clause is one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded. See United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 332, and Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 590. Where the legislation employs words that purport to limit review but fall short of the traditional wording of a full privative clause, it is necessary to determine whether the words were intended to have full privative effect or a lesser standard of deference. See Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230, at p. 264, and National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324.
18 The presence of a privative clause does not preclude review on the basis of an error of law if the provision under review is one that limits jurisdiction. The test as to whether the provision in question is one that limits jurisdiction is: was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board? In applying the test, a functional and pragmatic approach is to be taken. See Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at pp. 628-29. Factors such as the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise and the nature of the problem are all relevant in arriving at the intent of the legislature. See Bibeault, supra, at pp. 1088-89.
19 The respondents submit that s. 168 gives a unique power to the Board to direct the Superior Court not to hear an action. Because of the inherent jurisdiction of the Superior Court to control its own process, s. 168 should be interpreted narrowly, they say. This argument mischaracterizes the nature of the provisions at issue here. Section 168 does not give the Board the power to “direct” the Superior Court; it simply gives the Board the authority to answer a question about whether the action is statute-barred. In this context, it is significant that the Act does not speak of staying actions before the Superior Court, but rather, abolishes rights of action, as discussed below. Thus the effect of the respondents’ submissions would be to impair the power of a provincial legislature to abolish common law rights of action by according them constitutional protection under s. 96 of the Constitution Act, 1867 . Moreover, every decision taken by an administrative tribunal in defining the extent of its jurisdiction will have an effect on the jurisdiction of the superior courts. But this effect does not, without more, make the question “jurisdictional”. For instance, a decision of a workers’ compensation board as to whether a disease is work-related or is an industrial disease is arguably a matter that is typically within the boundaries of the jurisdiction of such a board. Yet, clearly, that decision will also have an impact on the jurisdiction of ordinary courts over the matter. Thus, the question is not what is the effect on the jurisdiction of the superior courts, but whether the provision at issue is one which limits the tribunal’s jurisdiction.
20 In this appeal the respondent submits that s. 22 which employs the language of a true privative clause does not apply to the matters which the Board is called upon to decide under s. 168. That provision, it is said, provides for its own free standing standard of review in the words “final and conclusive”. These words, it is argued, import a lesser standard of deference.
21 I see little merit in this submission. Section 22 was clearly intended to and applies to all issues that fall to be decided under the Act unless the issue is one that limits jurisdiction. I do not accept the respondent’s submission that the presence of the words “final and conclusive” in s. 168 indicates that the section was to have its own “stand-alone” privative clause. On the contrary, in my view, those words were used to make it clear that the question in s. 168 fell within the purview of s. 22 and was committed to the Board whose decision would be final and conclusive. In other words, the wording of s. 168 responds directly to the test: did the legislature intend to commit the matter exclusively to the Board?
22 Although this expression of intention by the legislature appears to be clear, it must be tested by reference to the other factors involved in the functional and pragmatic approach which this Court adopted in Bibeault, supra. In my opinion, the conclusion that matters arising under s. 168 are committed to the Board for final and exclusive decision is supported by the history and purpose of the Act as well as the nature and function of the Board. I turn to examine these factors.
History and Purpose of Workers’ Compensation
23 The history and purpose of workers’ compensation supports the proposition that the Board in this case had exclusive jurisdiction to decide the question of whether the statutory bar applies, because this question is intimately related to one side of the historic trade-off embodied in the system.
24 Workers’ compensation is a system of compulsory no-fault mutual insurance administered by the state. Its origins go back to 19th century Germany, whence it spread to many other countries, including the United Kingdom and the United States. In Canada, the history of workers’ compensation begins with the report of the Honourable Sir William Ralph Meredith, one-time Chief Justice of Ontario, who in 1910 was appointed to study systems of workers’ compensation around the world and recommend a scheme for Ontario. He proposed compensating injured workers through an accident fund collected from industry and under the management of the state. His proposal was adopted by Ontario in 1914. The other provinces soon followed suit. Saskatchewan enacted The Workmen’s Compensation Act, 1929, S.S. 1928-29, c. 73, in 1929.
25 Sir William Meredith also proposed what has since become known as the “historic trade-off” by which workers lost their cause of action against their employers but gained compensation that depends neither on the fault of the employer nor its ability to pay. Similarly, employers were forced to contribute to a mandatory insurance scheme, but gained freedom from potentially crippling liability. Initially in Ontario, only the employer of the worker who was injured was granted immunity from suit. The Act was amended one year after its passage to provide that injured Schedule 1 workers could not sue any Schedule 1 employer. This amendment was likely designed to account for the multi-employer workplace, where employees of several employers work together.
26 The importance of the historic trade-off has been recognized by the courts. In Reference re Validity of Sections 32 and 34 of the Workers’ Compensation Act, 1983 (1987), 44 D.L.R. (4th) 501 (Nfld. C.A.), Goodridge C.J. compared the advantages of workers’ compensation against its principal disadvantage: benefits that are paid immediately, whether or not the employer is solvent, and without the costs and uncertainties inherent in the tort system; however, there may be some who would recover more from a tort action than they would under the Act. Goodridge C.J. concluded at p. 524:
While there may be those who would receive less under the Act than otherwise, when the structure is viewed in total, this is but a negative feature of an otherwise positive plan and does not warrant the condemnation of the legislation that makes it possible.
I would add that this so-called negative feature is a necessary feature. The bar to actions against employers is central to the workers’ compensation scheme as Meredith conceived of it: it is the other half of the trade-off. It would be unfair to allow actions to proceed against employers where there was a chance of the injured worker’s obtaining greater compensation, and yet still to force employers to contribute to a no-fault insurance scheme.
27 Montgomery J. also commented on the purposes of workers compensation in Medwid v. Ontario (1988), 48 D.L.R. (4th) 272 (Ont. H.C.). He stated at p. 279 that the scheme is based on four fundamental principles:
(a) compensation paid to injured workers without regard to fault;
(b) injured workers should enjoy security of payment;
(c) administration of the compensation schemes and adjudication of claims handled by an independent commission, and
(d) compensation to injured workers provided quickly without court proceedings.
I would note that these four principles are interconnected. For instance, security of payment is assured by the existence of an injury fund that is maintained through contributions from employers and administered by an independent commission, the Workers’ Compensation Board. The principle of quick compensation without the need for court proceedings similarly depends upon the fund and the adjudication of claims by the Board. The principle of no-fault recovery assists the goal of speedy compensation by reducing the number issues that must be adjudicated. The bar to actions is not ancillary to this scheme but central to it. If there were no bar, then the integrity of the system would be compromised as employers sought to have their industries exempted from the requirement of paying premiums toward an insurance system that did not, in fact, provide then with any insurance.
28 The cases also support the conclusion that the legislature intended to commit exclusively to the Board the question of whether the statutory bar applied. In Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46, Duff J. (as he then was) found that the proper inference from provisions similar to the ones in issue here was that the authority to pass on the issue was solely vested in the Board. He commented, at p. 54:
The autonomy of the board is, I think, one of the central features of the system set up by the Workmen’s Compensation Act. One at least of the more obvious advantages of this very practical method of dealing with the subject of compensation for industrial accidents is that the waste of energy and expense in legal proceedings and a canon of interpretation governed in its application by refinement upon refinement leading to uncertainty and perplexity in the application of the Act are avoided.
29 Anglin J. (as he then was) agreed at p. 61:
It seems to be quite clear that the question of the plaintiffs’ right to bring and maintain this action “arises under” Part I and also that it is
a matter or thing in respect to which power, authority or discretion is conferred on the Board.
In my opinion by giving to the board
exclusive jurisdiction to examine into, hear and determine
all such matters and questions the legislature intended to oust and did oust the jurisdiction of the ordinary courts to entertain them, and required that they should be examined into, heard and determined solely by the board.
30 Since Dominion Canners, courts have consistently held that the question of whether the statutory bar applied to an action was finally committed to the board. See, for instance, Peter v. Yorkshire Estate Co., [1926] 2 W.W.R. 545 (P.C.); Alcyon Shipping Co. v. O’Krane, [1961] S.C.R. 299; Farrell v. Workmen’s Compensation Board, [1962] S.C.R. 48; Mack Trucks Manufacturing Co. v. Forget, [1974] S.C.R. 788, and, more recently, Crowsnest Air Ltd. v. Workers’ Compensation Board (Sask.) and Stolar (1995), 128 Sask. R. 144 (C.A.).
31 In Alcyon Shipping, the Court rejected the submission that the Board could determine whether a defendant was an “employer” in the administration of the Act but that the court could determine the matter independently. Judson J. found in Dominion Canners a recognition of the exclusive jurisdiction of the Board. He said at pp. 304-5:
As far as I know, this principle has never been in doubt since this decision. If it is departed from it will involve a serious breach in the administration of the Workmen’s Compensation Acts across the country.
Purpose and role of the Board
32 The Board occupies the central position in the workers’ compensation system. The system has three main aspects: (1) compensation and rehabilitation of injured workers, (2) the b