West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)

West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)
Collection
Supreme Court Judgments
Date
2018-05-18
Neutral citation
2018 SCC 22
Report
[2018] 1 SCR 635
Case number
37423
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm
On appeal from
British Columbia
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635
Appeal Heard: December 4, 2017
Judgment Rendered: May 18, 2018
Docket: 37423
Between:
West Fraser Mills Ltd.
Appellant
and
Workers’ Compensation Appeal Tribunal and Workers’ Compensation Board of British Columbia
Respondents
- and -
Workers’ Compensation Board of Alberta
Intervener
Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
Reasons for Judgment:
(paras. 1 to 51):
McLachlin C.J. (Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. concurring)
Dissenting Reasons:
(paras. 52 to 111):
Côté J.
Dissenting Reasons:
(paras. 112 to 125)
Brown J.
Dissenting Reasons:
(paras. 126 to 130)
Rowe J.
West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635
West Fraser Mills Ltd. Appellant
v.
Workers’ Compensation Appeal Tribunal and
Workers’ Compensation Board of British Columbia Respondents
and
Workers’ Compensation Board of Alberta Intervener
Indexed as: West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal)
2018 SCC 22
File No.: 37423.
2017: December 4; May 18, 2018.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ.
on appeal from the court of appeal for british columbia
Administrative law — Boards and tribunals — Jurisdiction — Workers’ Compensation Board of British Columbia — Regulation adopted by Board imposing duty on owners of forestry operation to ensure that their operations are planned and conducted in accordance with safe work practices — Whether regulation ultra vires — Applicable standard of review to exercise of Board’s delegated regulatory authority — Workers Compensation Act, R.S.B.C. 1992, c. 492, s. 225 — Occupational Health and Safety Regulation, B.C. Reg. 296/97, s. 26.2(1).
Workers’ compensation — Forestry operation — Offences and enforcement — Administrative penalty — Interpretation — Owner — Employer — Tree faller fatally struck by rotting tree while working within forestry operation — Owner of forestry operation employed site supervisor — Tree faller employed by independent contractor — Workers’ Compensation Board found that owner had failed to ensure that all forestry operations were planned and conducted consistent with Occupational Health and Safety Regulation — Workers Compensation Act permitting Board to penalize “an employer” — Board imposed administrative penalty on owner — Decision confirmed by Workers’ Compensation Appeal Tribunal — Whether Tribunal’s interpretation of administrative penalty provision to enable penalty against “owner” was patently unreasonable — Workers Compensation Act, R.S.B.C. 1992, c. 492, s. 196(1) — Occupational Health and Safety Regulation, B.C. Reg. 296/97, s. 26.2(1).
A tree faller was fatally struck by a rotting tree while working within the area of a forest license held by West Fraser Mills Ltd. The faller was employed by an independent contractor. As the license holder, West Fraser Mills was the “owner” of the workplace, as defined in Part 3 of the Workers Compensation Act.
The Workers’ Compensation Board investigated the accident and concluded that West Fraser Mills had failed to ensure that all activities of the forestry operation were planned and conducted in a manner consistent with s. 26.2(1) of the Occupational Health and Safety Regulation, which had been adopted by the Board pursuant to s. 225 of the Act. The Board also imposed an administrative penalty on West Fraser Mills pursuant to s. 196(1) of the Act, which permits the Board to penalize an “employer”. These aspects of its decision were confirmed by the review division. The Workers’ Compensation Appeal Tribunal dismissed West Fraser Mills’ appeal, but reduced the administrative penalty. The British Columbia Supreme Court and the Court of Appeal upheld the Tribunal’s order.
Held (Côté, Brown and Rowe JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ.: Section 225 of the Act empowers the Board to “make regulations [it] considers necessary or advisable in relation to occupational health and safety and occupational environment”. Where the statute confers such a broad power on a board to determine what regulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in the traditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to the statute’s goal. Section 26.2(1) is clearly linked to workplace safety and meets this requirement. It also fits with other provisions of the statute, which allow the Board to make regulations that apply to any persons working in or contributing to the production of an industry and in support of the promotion of occupational health and safety in the workplace in broad terms. Finally, two external contextual factors, both within the expertise and capacity of the Board, are relevant. First, the Board adopted s. 26.2(1) in its present form in response to a concern about the growing rate of workplace fatalities in the forestry sector, a concern that is plainly one of “occupational health and safety and occupational environment”, the focus of s. 225 of the Act. Second, s. 26.2(1) is a natural extension of an owner’s duty to maintain the worksite. To fulfill that duty, the owner must ensure that the work is planned and conducted safely.
With respect to the administrative penalty provision, the Tribunal’s interpretation of s. 196(1) was not patently unreasonable. Courts reviewing administrative decisions are obliged to consider, not only the text of the law and how its internal provisions fit together, but also the consequences of interpreting a provision one way or the other and the reality of how the statutory scheme operates on the ground, particularly where the standard of review is patent unreasonableness.
The Tribunal had before it two competing plausible interpretations of s. 196(1). One was a narrow approach that would undermine the goals of the statute. The other was a broad approach, which both recognized the complexity of overlapping and interacting roles on the actual worksite and would further the goals of the statute and the scheme built upon it. The Tribunal’s choice of the second approach was not openly, clearly and evidently unreasonable so as to border on the absurd. In this case, the respective consequences of the competing interpretations and the intended operation of the scheme militate against finding that the interpretation chosen by the Tribunal is patently unreasonable. West Fraser Mills’ obligation to ensure the health and safety of workers at the worksite was not limited to the health and safety of its own employees. A broad interpretation of s. 196(1) to include employers under the Act whose conduct can constitute a breach of their obligations as owners will best further the statutory goal of promoting workplace health and safety and deterring future accidents. This interpretation is also responsive to the reality that maintaining workplace safety is a complex exercise involving shared responsibilities of all concerned. Finally, while s. 196(1) can be engaged on the basis of an employer’s failure to comply with specific obligations provided in the Act, the provision is not limited to such circumstances.
Per Côté J. (dissenting): Section 26.2(1) of the Regulation is ultra vires on the correctness standard of review, but even if this were not the case, it was patently unreasonable to impose an administrative penalty — applicable only to breaches committed when acting in the capacity of an employer — on the basis that West Fraser Mills was found guilty of breaching its obligations as an owner under s. 26.2(1).
When a regulator acts in an adjudicative capacity, it may bring technical expertise to bear or exercise discretion in accordance with policy preferences. In this context, there may exist a range of reasonable conclusions. However, when a regulator acts in a legislative capacity, the court must determine whether the impugned regulation falls within that grant of authority. In that situation, there is no reasonable range of outcomes, so correctness is the appropriate standard of review. Here, the Board concedes that it was engaged in an exercise of legislative power when it enacted s. 26.2(1), so it is not entitled to any deference as to its own conclusion that it had the authority to enact the impugned regulation.
A regulation may not undermine the operation of the statute as a whole by assigning duties to owners that are clearly not contemplated by the Act. In enacting s. 26.2(1), the Board exceeded its mandate and the scope of its delegated legislative powers by impermissibly conflating the duties of owners and employers in the context of a statutory scheme that sets out separate and defined obligations for those workplace entities. The legislative scheme defines “employer” and “owner” as separate entities and expressly differentiates their duties in ss. 115 to 121. Read together, ss. 115 and 119, which set out the general duties of employers and owners, respectively, create separate silos of responsibility, whereby the duties ascribed to employers and owners are tethered to their unique roles and capacities to ensure workplace safety. Employers are in the best position to ensure that workers are informed of known or reasonably foreseeable safety hazards because of their direct supervisory relationship with their employees; owners are in the best position to assume macro‑level responsibilities pertaining to the workplace more generally.
This structural reading of the statute is bolstered by s. 107(2)(e) of the Act. Section 107(2)(e) states that one of the purposes of Part 3 of the Act is to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party’s authority and ability to do so. Section 107(2)(e) also makes it clear that the Act aims to impose obligations on parties only to the extent of their authority and ability, which aligns with the manner in which duties are assigned to employers and owners under ss. 115 and 119 of the Act. Further, it expressly limits the extent to which and the means by which the legislature pursues that purpose. Section 26.2(1) does not respect these silos of responsibility. It requires owners to assume responsibility for the manner in which activities are planned and conducted. This micro‑level obligation is categorically different from the macro‑level duties related to workplace conditions that are assigned to owners under s. 119. By imposing upon owners a type of obligation that the Act reserves to employers, the Board contravened the clear structure of divided responsibility that the Act creates. The external contextual factors that the majority outlines are neither persuasive nor appropriate considerations — they do not permit the Board to undermine the legislature’s statutory scheme for addressing workplace health and safety.
Even assuming that the impugned regulation is intra vires, there is no nexus between the underlying violation and the imposition of an administrative penalty. West Fraser Mills was charged with violating its obligations as an owner under s. 26.2(1) of the Regulation. Yet, it was subjected to an administrative penalty under s. 196(1) of the Act, which only authorizes the Board to impose such a penalty on an entity acting in the capacity of an employer. That decision was patently unreasonable.
Reading s. 196(1) to apply to an owner, so long as that owner is also an employer at the workplace, was erroneous for several reasons. First, the category of “employer” does not encompass “owner”. Second, s. 196(1) specifies that an administrative penalty may be imposed on an employer, which suggests that it cannot be imposed on other categories of persons. Third, the legislature used the word “person” or “persons” where it intended to encompass multiple entities or entities acting simultaneously in multiple roles. Fourth, the use of the term “employer” in s. 196(1) was no accident, as none of its other subsections uses the term “person” or “owner” rather than “employer”. Finally, it is consistent with the statutory scheme as a whole for certain remedial measures to be reserved for breaches of certain types of obligations.
Per Brown J. (dissenting): There is agreement with the majority that s. 225 of the Act is sufficiently broad to support the conclusion that the Board’s adoption of s. 26.2(1) of the Regulation is intra vires, although for different reasons. Administrative bodies must be correct in their determinations of true questions of jurisdiction or vires. The Board’s authority to adopt s. 26.2(1) is an issue of vires relating to subordinate legislation, and is therefore manifestly jurisdictional. Questions of jurisdiction are always to be reviewed for correctness. However, as long as the statutory delegate operates within the bounds of its grant of authority, the overall reasonableness of how the delegate has chosen to exercise its lawful authority is not the proper subject of judicial attention. The majority’s sidestepping the jurisdictional inquiry in favour of a review of various contextual factors which are said to support reasonableness review ought to be rejected. If the Board’s adoption of s. 26.2(1) presents a jurisdictional question, such contextual factors are irrelevant.
On the question of the penalty, there is agreement with Côté J. that the Board’s decision to impose a penalty upon West Fraser Mills under s. 196(1) of the Act for a breach of s. 26.2(1) of the Regulation was patently unreasonable.
Per Rowe J. (dissenting): Judicial review of the validity of a regulation has two steps. The first relates to jurisdiction, and the second is a substantive inquiry into the exercise of the grant of authority. There is agreement with the majority that s. 26.2(1) of the Regulation is intra vires, with the caveat that working day to day with an administrative scheme does not give greater insight into statutory interpretation, including the scope of jurisdiction. That is a matter of legal analysis.
Concerning the monetary penalty, there is agreement with Côté J. that the Tribunal’s decision was patently unreasonable and runs directly contrary to the clear wording of s. 196(1) of the Act.
Cases Cited
By McLachlin C.J.
Referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609; Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77; Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), 2013 BCCA 391, 342 B.C.A.C. 112; Petro‑Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, 98 B.C.L.R. (4th) 1; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.
By Côté J. (dissenting)
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135; Noron Inc. v. City of Dieppe, 2017 NBCA 38, 66 M.P.L.R. (5th) 1; Gander (Town) v. Trimart Investments Ltd., 2015 NLCA 32, 368 Nfld. & P.E.I.R. 96; 1254582 Alberta Ltd. v. Edmonton (City), 2009 ABCA 4, 448 A.R. 58; Canadian Council for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136; Cargill Ltd. v. Canada (Attorney General), 2014 FC 243, 450 F.T.R. 121; Broers v. Real Estate Council of Alberta, 2010 ABQB 497, 489 A.R. 219; Algoma Central Corp. v. Canada, 2009 FC 1287, 358 F.T.R. 236; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247; Toronto Star Newspapers Ltd. v. Canada, 2010 SCC 21, [2010] 1 S.C.R. 721; Greenshields v. The Queen, [1958] S.C.R. 216; Reference re Broadcasting Regulatory Policy CRTC 2010‑167 and Broadcasting Order CRTC 2010‑168, 2012 SCC 68, [2012] 3 S.C.R. 489; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6.
By Brown J. (dissenting)
Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canadian Copyright Licensing Agency (Access Copyright) v. Canada, 2018 FCA 58; United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1 S.C.R. 485; Noron Inc. v. City of Dieppe, 2017 NBCA 38, 66 M.P.L.R. (5th) 1; Gander (Town) v. Trimart Investments Ltd., 2015 NLCA 32, 368 Nfld. & P.E.I.R. 96; 1254582 Alberta Ltd. v. Edmonton (City), 2009 ABCA 4, 448 A.R. 58; Canadian Council for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136; Broers v. Real Estate Council of Alberta, 2010 ABQB 497, 489 A.R. 219; Algoma Central Corp. v. Canada, 2009 FC 1287, 358 F.T.R. 236; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Kruse v. Johnson, [1898] 2 Q.B. 91; Saumur v. City of Quebec, [1953] 2 S.C.R. 299; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Pham v. Secretary of State for the Home Department, [2015] UKSC 19, [2015] 1 W.L.R. 1591; Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006; Mills v. Workplace Safety and Insurance Appeals Tribunal, 2008 ONCA 436, 237 O.A.C. 71.
By Rowe J. (dissenting)
Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1.
Statutes and Regulations Cited
Administrative Tribunals Act, S.B.C. 2004, c. 45, s. 58.
Occupational Health and Safety Regulation, B.C. Reg. 296/97, s. 26.2(1).
Workers Compensation Act, R.S.B.C. 1996, c. 492, Part 3, ss. 106 “employer”, “owner”, 107, 111, 115 to 121, 115, 119, 123, 186.1, 194, 195, 196(1), 196.1, 198, 213(1), 217, 225, 230(2)(a), 254, 255.
Authors Cited
Brown, Donald J. M., and John M. Evans, with the assistance of David Fairlie. Judicial Review of Administrative Action in Canada. Toronto: Thomson Reuters, 2013 (loose‑leaf updated May 2018, release 1).
Mullan, David J. “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 6th ed. Markham, Ont.: LexisNexis, 2014.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Tysoe and Groberman JJ.A.), 2016 BCCA 473, 405 D.L.R. (4th) 621, 12 Admin. L.R. (6th) 189, [2016] B.C.J. No. 2486 (QL), 2016 CarswellBC 3290 (WL Can.), affirming a decision of MacKenzie J., 2015 BCSC 1098, 2 Admin. L.R. (6th) 148, [2015] B.C.J. No. 1362 (QL), 2015 CarswellBC 1780 (WL Can.), dismissing an application for judicial review of a decision of the Workers’ Compensation Appeal Tribunal, 2013 CanLII 79509. Appeal dismissed, Côté, Brown and Rowe JJ. dissenting.
Donald J. Jordan, Q.C., and Paul Fairweather, for the appellant.
Jeremy Thomas Lovell, for the respondent Workers’ Compensation Appeal Tribunal.
Ben Parkin, Ian R. H. Shaw and Nicolas J. Bower, for the respondent Workers’ Compensation Board of British Columbia.
Jason J. J. Bodnar, for the intervener Workers’ Compensation Board of Alberta.
The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner and Gascon JJ. was delivered by
The Chief Justice —
I. Introduction
[1] A tree faller was fatally struck by a rotting tree while working within the area of a forest license held by the appellant West Fraser Mills Ltd. As the license holder, West Fraser Mills was the “owner” of the workplace, as defined in Part 3 of the Workers Compensation Act, R.S.B.C. 1996, c. 492. The faller was employed, not by West Fraser Mills, but by an independent contractor.
[2] The Workers’ Compensation Board of British Columbia investigated the accident and concluded that West Fraser Mills had failed to ensure that all activities of the forestry operation were planned and conducted in a manner consistent with s. 26.2(1) of the Occupational Health and Safety Regulation, B.C. Reg. 296/97. The Board also imposed an administrative penalty on West Fraser Mills pursuant to s. 196(1) of the Act — a fine of $75,000. These aspects of the Board’s decision were confirmed by the review division.
[3] On appeal to the Workers’ Compensation Appeal Tribunal, West Fraser Mills argued: (1) that s. 26.2(1) of the Regulation was ultra vires; and (2) that an administrative penalty under s. 196(1) of the Act can only be levied against an entity acting as an “employer”, and not against an “owner”. West Fraser Mills argued that it was not the faller’s employer, but solely an “owner” within the terms of the Act, and so s. 196(1) did not apply and West Fraser Mills could not be fined.
[4] The Tribunal rejected West Fraser Mills’ arguments and dismissed the appeal (2013 CanLII 79509). Noting West Fraser Mills’ general history of compliance with safety standards and that it had not intentionally disregarded such standards leading up to the incident in question, the Tribunal reduced the administrative penalty by 30 percent. The British Columbia Supreme Court (2015 BCSC 1098, 2 Admin. L.R. (6th) 148) and Court of Appeal (2016 BCCA 473, 405 D.L.R. (4th) 621) upheld the Tribunal’s order. West Fraser Mills now appeals to this Court.
[5] For the reasons that follow, I would dismiss the appeal and uphold the Tribunal’s order against West Fraser Mills.
II. The Validity of Section 26.2(1) of the Regulation
[6] Section 225 of the Act gives the Board broad powers to make regulations for workplace safety. It states, in relevant part:
225 (1) In accordance with its mandate under this Part, the Board may make regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment.
(2) Without limiting subsection (1), the Board may make regulations as follows:
(a) respecting standards and requirements for the protection of the health and safety of workers and other persons present at a workplace and for the well-being of workers in their occupational environment;
(b) respecting specific components of the general duties of employers, workers, suppliers, supervisors, prime contractors and owners under this Part;
. . .
[7] Pursuant to s. 225 of the Act, the Board adopted the Regulation at issue in this case. Section 26.2(1) of the Regulation imposes a duty on owners to ensure that forestry operations are planned and conducted in accordance with the Regulation and safe work practices:
26.2 (1) The owner of a forestry operation must ensure that all activities of the forestry operation are both planned and conducted in a manner consistent with this Regulation and with safe work practices acceptable to the Board.
[8] This Court summarized the approach courts should take to judicial review of the exercise of delegated administrative powers in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. For situations where the jurisprudence has not already determined in a satisfactory manner the degree of deference to be accorded, this Court emphasized the importance of referring to the legislative and administrative context to determine the level of discretion the Legislature conferred on a board or tribunal. In most cases, a contextual assessment leads to the conclusion that the appropriate standard of review is reasonableness.
[9] Applying this central teaching of Dunsmuir, this Court has adopted a flexible standard of reasonableness in situations where the enabling statute grants a large discretion to the subordinate body to craft appropriate regulations: see Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at paras. 13, 18 and 24; Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360, at para. 20. Those authorities point us to reasonableness as the applicable standard of review. Reasonableness review “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93, cited with approval in Dunsmuir, at para. 49.
[10] The question before us is whether s. 26.2(1) of the Regulation represents a reasonable exercise of the Board’s delegated regulatory authority. Is s. 26.2(1) of the Regulation within the ambit of s. 225 of the Act? Section 225 of the Act is very broad. Section 225(1) empowers the Board to make “regulations the Board considers necessary or advisable in relation to occupational health and safety and occupational environment”. This makes it clear that the Legislature wanted the Board to decide what was necessary or advisable to achieve the goal of healthy and safe worksites and pass regulations to accomplish just that. The opening words of s. 225(2) — “Without limiting subsection (1)” — confirm that this plenary power is not limited by anything that follows. In short, the Legislature indicated it wanted the Board to enact whatever regulations it deemed necessary to accomplish its goals of workplace health and safety. The delegation of power to the Board could not be broader.
[11] From this broad and unrestricted delegation of power we may conclude that any regulation that may reasonably be construed to be related to workplace health and safety is authorized by s. 225 of the Act. The Legislature, through s. 225 of the Act, is asking the Board to use its good judgment about what regulations are necessary or advisable to accomplish the goals of workplace health and safety. A regulation that represents a reasonable exercise of that judgment is valid: Catalyst, at para. 24; Green, at para. 20.
[12] Determining whether the regulation at issue represents a reasonable exercise of the delegated power is, at its core, an exercise in statutory interpretation, considering not only the text of the laws, but also their purpose and the context. The reviewing court must determine if the regulation is “inconsistent with the objective of the enabling statute or the scope of the statutory mandate” to the point, for example, of being “‘irrelevant’, ‘extraneous’ or ‘completely unrelated’”: Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 24 and 28. To do this, the Court should turn its mind to the typical purposive approach to statutory interpretation and seek an “interpretative approach that reconciles the regulation with its enabling statute”: Katz, at paras. 25-26.
[13] First, applying the usual principles of statutory interpretation to s. 225 of the Act, it is clear that it authorizes s. 26.2(1). I have already discussed the broad wording of s. 225 of the Act. The Board is expected to craft such regulations as it deems necessary or appropriate in order to promote workplace health and safety. Section 26.2(1) is clearly linked to workplace safety and meets this requirement.
[14] Second, the Regulation fits with other provisions of the statute. Section 26.2(1) is consistent with s. 230(2)(a) of the Act, which allows the Board to make regulations that apply to any “persons working in or contributing to the production of an industry”. This would include forest license owners like the appellant. Section 26.2(1) is also consistent with s. 111 of the Act, which provides that the Board’s mandate includes making regulations in support of the purpose of Part 3 of the Act. The purpose of Part 3 is captured in s. 107: it aims to promote occupational health and safety in the workplace in broad terms. Section 26.2(1) shares that purpose.
[15] My colleague, Côté J., argues that s. 26.2(1) is at odds with the way the Act sets out the responsibilities of owners and employers. She reads the Act as creating two silos of responsibility — one for “owners” and one for “employers” — which can never overlap. She argues that because s. 26.2(1) makes an owner’s responsibilities overlap to some extent with an employer’s responsibilities, it cannot be reconciled with the Act and must be held to be invalid.
[16] I cannot agree with the central premise of this argument — that the Act creates two silos of responsibility and that the duties of owners and employers can never overlap. Côté J. grounds this premise in ss. 115 and 119 of the Act, which state the duties of “employers” and “owners” respectively, and s. 107(2)(e), which my colleague reads to indicate the Legislature’s intent to preclude overlapping obligations for different parties. For reference, s. 107(2)(e) provides:
(2) Without limiting subsection (1), the specific purposes of this Part are
. . .
(e) to ensure that employers, workers and others who are in a position to affect the occupational health and safety of workers share that responsibility to the extent of each party’s authority and ability to do so . . .
[17] The practical effect of Côté J.’s interpretation is to limit the scope of regulations impacting owners to only those obligations outlined in s. 119 of the Act. Under that interpretation, any regulation not specifically tethered to s. 119 would be impermissible. However, this is inconsistent with the text of s. 119 itself — s. 119 is not a complete and exhaustive statement of owners’ duties. It does not say “the owners’ duties are the following”, much less that these are owners’ only duties. It is true that s. 26.2(1) of the Regulation imposes duties not set out in s. 119(a) and (b) of the Act, which deal with maintaining land and premises, and providing information to employers and contractors. However, s. 119 of the Act does not say that owners’ duties are limited to the specific duties found in s. 119(a) and (b). On the contrary, s. 119 (c) imposes a broad duty, not only to “comply with this Part,” but also with “the regulations”. The Legislature has thus indicated that other duties can be imposed by regulation. The text of s. 119 directly invites readers to consider owners’ obligations in light of the scheme as a whole.
[18] Similarly, s. 107(2) simply lists particular facets of the scheme’s broad purpose to promote workplace safety. The text of s. 107(2) explicitly states that the specific purposes detailed, including s. 107(2)(e), are not meant to limit the broad workplace safety purpose outlined in s. 107(1). Section 107(1) provides a clear indication that the scheme is meant to promote workplace safety in the broadest sense. In addition, s. 107(2)(e) specifically notes that occupational health and safety is a shared responsibility between “employers, workers and others who are in a position to affect the . . . safety of workers”. Similarly, s. 107(2)(f) asks these parties to “foster cooperative and consultative relationships” regarding workplace safety. In my view, it is inconsistent with a purposive interpretation of the scheme to read the phrase “to the extent of each party’s authority and ability to do so” from s. 107(2)(e) — which my colleague finds to be dispositive — in a formalistic manner that disregards the scheme’s focus on shared responsibility.
[19] Finally, two additional external contextual factors are relevant for this inquiry: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 59; Catalyst, at paras. 18 and 24. These considerations are both within the expertise and capacity of the Board.
[20] First, the Board adopted s. 26.2(1) of the Regulation in its present form in 2008 in response to a concern in the province about the growing rate of workplace fatalities in the forestry sector. This concern is plainly one of “occupational health and safety and occupational environment”, the focus of s. 225. The Board’s adoption of s. 26.2(1) of the Regulation in response to this significant workplace safety concern provides a clear illustration of why a legislature chooses to delegate regulation-making authority to expert bodies — so that gaps can be addressed efficiently.
[21] Second, s. 26.2(1) is a natural extension of an owner’s duty under s. 119(a) to maintain the worksite. Forestry worksites are constantly changing due to weather and other natural occurrences. To maintain the worksite in the face of the dynamic interaction of natural forces and work practices, the owner must ensure that the work in question is planned and conducted safely. Therefore, to fulfill the duty of maintaining a safe worksite under s. 119 of the Act, the owner must ensure that the work is planned and conducted safely. The two go hand in hand.
[22] I conclude that s. 26.2(1) represents a reasonable exercise of the delegated power conferred on the Board by s. 225 of the Act to “make regulations [it] considers necessary or advisable in relation to occupational health and safety and occupational environment”.
[23] It is true that this Court, in Dunsmuir, referred to prior jurisprudence to indicate that true questions of jurisdiction, which some suggest the present matter raises, are subject to review on a standard of correctness — noting, however, the importance of taking a robust view of jurisdiction. Post-Dunsmuir, it has been suggested that such cases will be rare: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 33. We need not delve into this debate in the present appeal. Where the statute confers a broad power on a board to determine what regulations are necessary or advisable to accomplish the statute’s goals, the question the court must answer is not one of vires in the traditional sense, but whether the regulation at issue represents a reasonable exercise of the delegated power, having regard to those goals, as we explained in Catalyst and Green, two recent post-Dunsmuir decisions of this Court where the Court unanimously identified the applicable standard of review in this regard to be reasonableness. In any event, s. 26.2(1) of the Regulation plainly falls within the broad authority granted by s. 225 of the Act as an exercise of statutory interpretation. This is so even if no deference is accorded to the Board and if we disregard all of the external policy considerations offered in support of its position.
III. The Penalty Under Section 196(1) of the Act
[24] West Fraser Mills argues that it was not open to the Board to issue a penalty against the company under s. 196(1) of the Act because it was not acting as an “employer” during the breach in question. Section 196(1) provides:
196 (1) The Board may, by order, impose on an employer an administrative penalty under this section if the Board is satisfied on a balance of probabilities that
(a) the employer has failed to take sufficient precautions for the prevention of work related injuries or illnesses,
(b) the employer has not complied with this Part, the regulations or an applicable order, or
(c) the employer’s workplace or working conditions are not safe.
[25] The Tribunal rejected West Fraser Mills’ argument and upheld the penalty.
A. Standard of Review
[26] The Administrative Tribunals Act, S.B.C. 2004, c. 45, applies to the Tribunal’s decision in this matter. Section 58 of that statute provides in relevant part:
58 (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal’s decision is correctness.
[27] Section 254 of the Act grants the Tribunal exclusive jurisdiction over “all appeals from Board decisions”. Sections 254 and 255 of the Act constitute a strong privative clause. It follows that the appropriate standard of review is “patent unreasonableness”, pursuant to s. 58(2)(a) of the Administrative Tribunals Act.
[28] A legal determination like the interpretation of a statute will be patently unreasonable where it “almost border[s] on the absurd”: Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, at para. 18. In the workers’ compensation context in British Columbia, a patently unreasonable decision is one that is “openly, clearly, evidently unreasonable”: Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80, 46 B.C.L.R. (4th) 77, at para. 33; Vandale v. British Columbia (Workers’ Compensation Appeal Tribunal), 2013 BCCA 391, 342 B.C.A.C. 112, at para. 42 (emphasis deleted).
[29] By stipulating the standard of patent unreasonableness, the Legislature has indicated that courts should accord the utmost deference to the Tribunal’s interpretation of the legislation and its decision.
B. The Tribunal’s Interpretation of Section 196(1) of the Act
[30] The Board imposed an administrative penalty on West Fraser Mills pursuant to s. 196(1) of the Act, which permits the Board to penalize an “employer”. West Fraser Mills submits that it was not an “employer” in relation to the fatality, but only an “owner”, and hence cannot be penalized under s. 196(1) of the Act. West Fraser Mills was an employer under the Act on other sites, and indeed employed a person to supervise this particular site. However, it submits that, because the events in question led to its breach as an “owner”, it