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Constitution (Non-Charter) - Prescriptive Legislative Jurisdiction (3). Irving Consumer Products Limited v. Singh
In Irving Consumer Products Limited v. Singh (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed a JR, this from a WSIAT decision and associated reconsideration that a respondent could sue a corporation and it's employee under WSIA s.28 ['Certain rights of action extinguished'] "for compensation for injuries suffered by Mr. [Gurjot] Singh in the course of his employment".
The incident and procedural facts are complex. Irving is a large multi-provincial NB-based corporation that hired Singh's employer Rangi to transport goods in a truck from NB to Toronto to Texas. Surinder Singh (SS) drove the truck from NB to Toronto, and Gurjot Singh (GS) drove it from Toronto to Texas where he was injured in it's unloading. Both Irving and Rangi are registered Schedule 1 employers under the Ontario WSIA scheme, and Irving is additionally registered under the similar NB scheme. Rather than claiming under Ontario WSIA scheme, GS and the trucking company sued Irving and an employee ('John Doe') in Ontario Superior Court for negligence in loading the truck in NB, on the argument that "the injuries sustained by Mr. [Gurjot] Singh in the course of his employment in Texas were caused by the negligence of Irving and John Doe improperly loading the trailer and securing the load in New Brunswick". In response, Irving commenced a third party claim against Rangi that Rangi and SS "caused or contributed to the injuries sustained by the plaintiffs Gurjot Singh and his spouse".
Irving then commenced an Ontario administrative "application under s. 31 of WSIA, 1997 seeking an order that the plaintiffs’ rights to sue them were extinguished under s. 28 of the statute", which the WSIAT dismissed on the basis that "John Doe has no connection to Ontario" (so, under that order, the main lawsuit could proceed). This WSIAT ruling was the subject of this JR, which was allowed and the application remitted back down to the WSIAT.
Here the court considers the interaction between the Ontario WSIA and the fact that the defendant to the main lawsuit was located in New Brunswick. It finds the tribunal's approach of constitutional inter-provincial jurisdiction to be a fundamental misunderstanding of the issue, and rather that "(t)he issue is simply the reach of the trade-offs in lawsuits available to local workers in the provincial courts in the context of our federal national structure." [para 86]:The Constitutional Issue – British Airways
[45] In British Airways [British Airways v. British Columbia (Workers' Compensation Board), 1985 CanLII 758 (BC CA).], the BC workers’ compensation authority purported to assess British Airways to bring under the BC statutory workers’ compensation scheme its flight crews and flight attendants who fly into BC on their way elsewhere.
[46] British Airways was a Crown corporation in the UK. Its flight crews and flight attendants would fly through BC airspace for a total of 75 minutes with a temporary stopover. During stopovers, British Airways’ flight crews and flight attendants spent on average 2.5 hours on the ground in BC.
[47] The issue before the court was whether the BC authority was entitled to assess British Airways, “for workers’ compensation in respect of the Plaintiff’s employees employed as flight crew or flight attendants on the Plaintiff’s aircraft present in the Province of British Columbia from time to time.”
[48] Like the Ontario statute set out above, the BC statute defined “worker” by reference to the employment relationship and without any express territorial limit.
[49] The majority decision written by MacFarlane JA starts by finding that the statute itself is not unconstitutionally broad. Rather, as a matter of statutory interpretation, the provisions of the statute ought to be limited to their intra vires or constitutionally permissible reach.
[50] The majority cited the Privy Council decision in Workers Compensation Board v C.P.R. Co., (1919), 1919 CanLII 411 (UK JCPC) to discuss the constitutional underpinnings of workers compensation legislation. MacFarlane JA wrote:47] I do not think that the Act is ultra vires. I agree with counsel for British Airways that the true construction of the Act is consistent with the constitutional limitations on the powers of the province. I also agree that the board, in bringing the employees of British Airways within the Act, has extended the reach of the Act beyond the constitutional limits of the province.
48] The Workers Compensation Act has been characterized as a law relating to a matter coming within s. 92(13) of the Constitution Act, 1867, namely, “Property and civil rights in the province”. In Workmen’s Compensation Board v. C.P.R. Co., supra. Lord Haldane said, at p. 222 D.L.R., p. 181 W.W.R.:The scheme of the Act is not one for interfering with rights outside the Province. It is in substance a scheme for securing a civil right within the Province. He also said, at the same pages:This right arises, not out of tort, but out of the workman’s statutory contract, and their Lordships think that it is a legitimate provincial object to secure that every workman resident within the Province who so contracts should possess it as a benefit conferred on himself as a subject of the Province. He continued, at p. 222 D.L.R., p. 182 W.W.R.... here the rights in question are the rights of workmen within British Columbia. It makes no difference that the accident insured against might happen in foreign waters. For the question is not whether there should be damages for a tort, but whether a contract of employment made with persons within the Province has given a title to a civil right within the Province to compensation. [51] Workers’ compensation schemes are valid provincial legislation because they secure rights for workers within the province. They describe who will receive benefits and how the benefits will be funded. They control who will have access to the civil courts in the province and who will be provided benefits under the statutory scheme.
[52] In the context of discussing the limits of property and civil rights in the province, MacFarlane JA wrote:53] It is clear that the Act could not apply to non-residents, who had entered into contracts of employment outside the province, and who worked outside the province. It is clear also that the Act applies to persons who work in the province, but who reside outside it. The Act also may apply to persons who reside in the province, and do some work outside the province. In order to give the province jurisdiction to secure the civil rights of a person related to his employment there must be a sufficient connection between that person’s employment and the province. [Emphasis added.] [53] The majority ultimately read-in a territorial limitation to the definition of “worker”:33] The word “worker” includes: (1) a person who enters into a contract of service, and (2) a person who works under a contract of service. I think that s. 1 must be read as if the words “in British Columbia” follow the words “contract of service or apprenticeship”. [54] It is clear from the rest of the decision that the words read-in - “in British Columbia” – also include those with a “sufficient connection to British Columbia.”
[55] The decision ultimately held that BC workers’ compensation authorities could not assess a foreign corporation for employees with transitory presence in the province. Technically speaking, it held that the British Airways flight crews and flight attendants were not “workers” who would be entitled to receive benefits under the scheme and their employer thereby was not assessable under the scheme.
[56] In essence, the court held that a province cannot pull into its benefits system employees with only a transitory presence in the province and it cannot assess foreign corporations who employ the transitory workers.
[57] The easiest constitutional analogy is to provincial taxation. Just as a province cannot tax a person outside its borders who has no connection to the province, so too it cannot levy assessments against employers whose businesses and employees have no connection to the province. Those employees’ contracts of employment are not within the reach of the province’s jurisdiction over property and civil rights in the province.
[58] There are several important points which must be drawn from this decision to understand the meaning and scope of the Court of Appeal’s holding. First, the court was interpreting the statute in accordance with the principle that a statute should be interpreted in a way that renders it intra vires if possible. The Court was clear that there was no constitutional challenge the vires of the statute. Second, the Court was considering the reach of the law as to who can obtain benefits and who can be assessed under the provincial statute. It was not considering other elements of the law, like who can be sued in the BC Supreme Court by a BC benefits recipient. Third, the pith and substance of the law, to qualify under s. 92 (13), is that the law regulated property and civil rights of workers in the province The law deals with regulating BC worker injuries and benefits. The court therefore looked at the facts surrounding the worker claimant and the claimant’s employer only.
[59] I repeat the highlighted words above that form the ratio decidendi of British Airways:In order to give the province jurisdiction to secure the civil rights of a person related to his employment there must be a sufficient connection between that person’s employment and the province. [60] The decision deals with the rights of local workers and securing the property and civil rights of workers in or connected to BC.
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The Tribunal Applied Inappropriately the Constitutional Doctrine of Extra-Territoriality
[87] In the same vein, it was simply an error for the tribunal below, and in its precedent cases on which it relied, to consider that the issue of whether Gurjot Singh, an injured Ontario worker, can sue John Doe and Irving in the Ontario Superior Court of Justice engages any constitutional or extra-territoriality issue.
[88] As repeatedly set out in the Supreme Court of Canada precedents referred to above and more, workers’ compensation statutes relate to the property and civil rights of injured employees and their employers in Ontario.
[89] The tribunal is mixing up two different questions. In some cases, it must decide which employees fall under the Ontario workers’ compensation benefits scheme. This question may involve the constitutional reach of the Ontario statute under British Airways.
[90] In cases such as this one, the tribunal must decide whether an injured Ontario worker who falls under the Ontario workers’ compensation benefits scheme is entitled, under s. 28 of the statute, to decline benefits and to sue someone in Ontario. This question does not involve British Airways at all.
[91] The tribunal’s discussion that I have quoted about workers’ property and civil rights in relation to the proposed defendant confuses the constitutional positions of Gurjot Singh and John Doe. The statute exists to regulate Ontario workers’ property and civil rights. It regulates the benefits of those with contracts of service in or related to Ontario.
[92] There is no doubt about the constitutional reach of the statutory scheme in this case. It reaches Gurjot Singh and his spouse as Ontario workers who are subject to the Ontario benefits scheme.
[93] The issue of who Ontario workers can sue in the courts of Ontario in lieu of receiving workers’ compensation benefits is a question about the limits and scope of the Ontario worker’s rights. There is no issue of extra-territoriality when Ontario regulates the scope of the trade-offs made by Ontario workers – in this case Gurjot Singh. Whether he and his spouse can sue someone else in the Ontario Superior Court of Justice is just a question of the meaning of s. 28 of WSIA, 1997. It has nothing at all to do with the constitutional underpinnings of the statute or the regulation of property and civil rights of the proposed defendants John Doe and Irving.
[94] In short, the interpretation of the scope of s. 28 of WSIA, 1997 to decide who can be sued by Ontario worker Gurjot Singh and his spouse in this case has nothing to do with the constitutional doctrine of extra-territoriality as reflected in the British Airways case.
[95] The Ontario statute is not aimed at protecting or affecting the property and civil rights of John Doe. His property and civil rights are regulated by the Province of New Brunswick. WSIA, 1997 is in pith and substance legislation about conferring benefits on Ontario workers and deciding who an injured Ontario worker can sue or not sue in the Ontario Superior Court of Justice as a result of the policy trade-off underlying the benefits scheme. This does not involve any issue of extra-territorial reach by Ontario law.
[96] The legal holding or ratio decidendi of British Airways dealt with identifying employees and employers whose property and civil rights might be affected by being swept into the statutory benefits scheme. Here, that is Gurjot Singh and Rangi Brothers. British Airways said nothing at all about the ability of the Province of BC to legislate as to who is included in the statutory trade-off i.e., who can an injured BC worker sue in the courts of BC for tortiously causing him or her injury.
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