Oct 4, 2014

In British Columbia Hydro and Power Authority v Workers' Compensation Board of British Columbia, the Court of Appeal confirmed that the employer of the injured worker, not the owner of the workplace, is required to report the worker's injury.

Facts of the case

In October 2009, Arrow Installations was successful in getting a contract to replace cut-outs on BC Hydro's overhead electrical distribution system.

In November 2009, two Arrow employees went to work on the system and unfortunately came into contact with a high voltage energized source. When one worker suffered severe electrical burns, the other worker called for emergency assistance on an open mobile radio frequency as he was unable to get cellphone reception.

Although there were no BC Hydro employees on site at the time of the accident, the emergency call was conveyed on a frequency monitored by BC Hydro. A BC Hydro crew was able to pick up the signal and responded and rescued the injured Arrow employee. The worker was transported to hospital by ambulance attendants.

BC Hydro employees subsequently took control of the site where the accident occurred to deal with any remaining hazards, to repair the electrical system and restore power to Hydro customers.

BC Hydro's Line Manager called Arrow's manager to advise him of the accident, and told him he must report the accident to WorkSafeBC (the Board). BC Hydro also gave the hospital material on how to treat electrical injuries and then went to the accident site to take photos to preserve evidence at the scene. In addition, BC Hydro conducted its own investigation of the accident.

Arrow reported the accident to the Board after WorkSafeBC officers arrived at the site the day after the accident to conduct an investigation.

As a result of WorkSafeBC investigation, on January 25, 2010, three orders were issued against BC Hydro for violations of the Workers Compensation Act. Although two of these were resolved, there was one outstanding order that alleged that BC Hydro did not immediately notify the Board of the occurrence of the accident. The provision in the Act, section 172(1)(a), referred to an “employer” failing to report the accident. Specifically,

"An employer must immediately notify the Board of the occurrence of any accident that (a) resulted in serious injury to or the death of a worker”.

In response, BC Hydro asked for a review of the order on the basis that BC Hydro was not the employer of the injured worker and thus had no obligation to report the accident.

When the Review Division upheld the order, stating that BC Hydro should have reported the accident according to the Act, and it did not amount to an unreasonable duplication of effort or to do so even though Arrow, the employer, notified the Board. BC Hydro had a significant connection to the worksite and incident, and was in the best position to provide the timeliest notification.

BC Hydro brought a petition for judicial review of the Review Decision.

Chambers judge's decision

A Supreme Court judge, sitting in chambers, held that it was clear that BC Hydro's instruction to Arrow to report the accident did not excuse it from its own obligation to report the incident. However, the literal interpretation of the provision in the Act was unreasonable because it produced the absurd result that every owner in the province would have to report every serious injury accident to the Board, regardless of the owner's connection to the accident, worksite, or injured worker. The judge reasoned that the legislature must have intended a more restrictive interpretation, taking into account the words of the section, the scheme of the Act, and its legislative purpose.

"The Review Officer's finding that BC Hydro had a duty to report because of its “significant connection” to the worksite appears to be based primarily on the fact that BC Hydro was the owner of the system that the Arrow employees were working on. However, the Act makes a clear distinction between the responsibilities that flow from being an owner, and the responsibilities that flow from being an employer. Section 119 sets out the duties of an owner, and they do not include a duty to report an accident. The reporting duty imposed under s. 172(1)(a) is one that the legislature has imposed on an employer, not on an owner."

To that end, the chambers judge held the most straightforward and grammatically natural interpretation of “employer” in the provision to limit the word to the employer of the injured worker. As a result, it was decided that the Board's decision was unreasonable because it did not fall within a range of acceptable possible interpretations. He quashed the decision and the order and referred the matter back to the Review Division for reconsideration.

However, the Workers' Compensation Board of British Columbia appealed to set aside the order of the chambers judge and argued that the judge made an error when reviewing the decision.

British Columbia Court of Appeal's decision

In their appeal, the Board stated that the word "employer" should include the owner of the worksite because it had a significant connection to the worksite and was in the best position to provide the timeliest notification to the Board.

The court explained that a reasonable decision had to be factually and legally defensible. In this case, the decision was not, when using the modern example of statutory interpretation. Before expanding the duty to report to BC Hydro as an owner, it was important for the Review Officer to examine the entire legislative context and determine whether it revealed a legislative gap that justified an expansive interpretation of the provision, or whether the failure to report simply arose from the unique circumstance of Arrow's lapse.

Had there been a consideration of other sections in the Act, it would have become clear that there were provisions that imposed other duties on the employer. The question would then be whether it was reasonable to interpret only the reporting duty expansively, or whether the owner had to comply with all of those other responsibilities as well. Although parallel duties could arise, this provision had to do with the duty imposed on an employer.

Ultimately, the court decided that the Board's decision was unreasonable. BC Hydro was not legally required to report the accident to the Board. The Act did not impose a duty on owners to report accidents. Further, requiring owners to report accidents under s. 172(1)(a) would effectively require owners to carry out other obligations of “employers” under the Act including investigating the accident, preparing an accident report, and taking corrective actions. The legislature could not have intended to impose all of those obligations on owners.

Therefore, the Court of Appeal confirmed that the chambers judge correctly applied the standard of reasonableness in concluding that the Review Decision was unreasonable and that decision had to be quashed. This clarified; the worker's employer, not BC Hydro, was required to report the accident to the Board.

The matter had to be remitted back to the Review Division for reconsideration.