The British Columbia Supreme Court recently considered “when” an “employer” is required to report a workplace injury. More specifically, who is an employer for purposes of the reporting obligations under the Workers Compensation Act, R.S.B.C. 1996, c. 492. The case is British Columbia Hydro and Power Authority v. Workers’ Compensation Board B.C.J. No. 2421.
BC Hydro responded to a request for assistance from another company, Arrow Installations Limited, in rescuing one of Arrow’s employees who had been injured in an accident when he came in contact with a live power line. The employee was rescued, and BC Hydro was told that Arrow would report the accident to the Workers’ Compensation Board of British Columbia. BC Hydro confirmed that Arrow had done so (some five hours after the accident). BC Hydro did not report the accident.
The Board determined that BC Hydro had an obligation to report the accident (independently of Arrow). On review, the oder was upheld and BC Hydro sought judicial review of the order to the BC Supreme Court.
BC Hydro’s position is that it did not have a duty to report the accident under section 172(1)(a) of the Act as it was not an employer in the context of that section. Section 172(1)(a) provides:
172 (1) An employer must immediately notify the Board of the occurrence of any accident that
resulted in serious injury to or the death of a worker,
The question before the Court was whether BC Hydro was an “employer” within the meaning of section 172(1)(a).
BC Hydro also argued that there was a reasonable apprehension of bias in the officer because of his relationship of the officer with the family of the injured worker. BC Hydro did not raise this issue with the Officer or on review, and the first time this was brought forward was to the Court on judicial review.
Determining if there is a reasonable apprehension of bias is determined by considering the following:
...whether the objective observer in the instant case, “viewing the matter realistically and practically -- and having thought the matter through”, would have a reasonable apprehension of bias. (Finch v. Association of the Professional Engineers and Geoscientists1996 CanLII 773 (BC CA))
Unfortunately for BC Hydro, they first raised the issue during the application for judicial review. The Court dismissed this ground of the application because it was not raised in a timely fashion. Specifically, it “could, by exercising reasonable diligence, have raised before the Review Officer.”
On the more substantive ground (whether the Officer unreasonably interpreted section 172(1)(a) of the Act) the issue involved determining if, in the circumstances, BC Hydro was an “employer” within the meaning of section 172(1)(a) of the Act. The Court found that, to interpret section 172(1)(a) in the manner that the Officer did would create an absurd result. The Court noted:
If read literally and without any implicit qualification, s. 172(1)(a) would impose a requirement on every employer in the Province to report every serious injury accident that occurs in the Province, regardless of whether the employer had any connection whatsoever to the accident, the worksite, or the injured worker. Such an interpretation would clearly be unreasonable, and cannot possibly have been the intention of the legislature. [Emphasis added]
This would result in an “absurd consequence” (Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC)) and could not stand. An absurdity has been defined in Rizzo as “an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment”.
The Court was prepared to accept the Officer’s view that an employer under section 172(1)(a) of the Act need not be the employer of the injured worker. However, the Court was not prepared to accept the Officer’s interpretation that an employer was someone who had a significant connection to the worksite where the injury took place because it “was the owner of the system on which the worksite was located and there could be no thorough investigation without its cooperation and assistance.” The Court said that this was an error, because the Act imposes duties on an “owner” as well as on an “employer” and that the duties flowing from section 172(1)(a) fall to the employer (as opposed to the owner).
Further the Officer erred by drawing BC Hydro into the reporting obligation because it assisted in the rescue of the injured Arrow employee. As the Court noted:
Police, fire, or ambulance crews may attend an accident scene to assist when a worker unrelated to them has been injured at a work site. Those emergency personnel may temporarily take control of the site, limiting the access of other persons and directing what ought to be done to facilitate a rescue. While emergency personnel are at the scene, no thorough investigation can be conducted without their cooperation. Yet it would be absurd to suggest that police, fire and ambulance crews have a duty under s. 172(1)(a) to report every serious injury accident to which they respond.
The Court went on to add:
I agree with the submission of BC Hydro that before an employer can be found to have a reporting obligation under s. 172(1)(a), that employer must, at a minimum, either be the employer of the injured worker, or must be an employer whose workers are at a multiple-employer workplace within the meaning of s. 118 at the time of the accident.
The Court quashed the order against BC Hydro as it was unreasonable in the sense that was not within the range of acceptable and defensible possible interpretations. In reaching this conclusion, the Court adopted a common sense and plain meaning approach to the interpretation of the Act. The interpretation seems in line with the legislative intent of the Act and the purpose of the reporting obligations.