Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board)

Beetz J.‑‑

I‑‑Introduction

This case ("Alltrans") is the first of a trilogy which also comprises Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868 ("Canadian National"), and Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749 ("Bell Canada").

The three cases raise essentially the same issue: is a provincial law which regulates occupational or industrial health and safety conditions in the work place constitutionally applicable to a federal undertaking?

Although Bell Canada is the third case in the trilogy, reasons for judgment in that case were written first. As is explained in those reasons, the three appeals were heard consecutively and were essentially consolidated for the purposes of the hearings. The constitutional principles which govern the three cases have been reviewed in Bell Canada. The provisions impugned in Bell Canada and in Canadian National are to be found in An Act respecting occupational health and safety, S.Q. 1979, c. 63 (the "Quebec Statute"). It is also in Bell Canada that these provisions have been characterized and classified for constitutional purposes. As will be seen shortly, they are of the same nature as the legislative and regulatory provisions impugned in the case at bar.

II‑‑The Facts and the Proceedings

The facts are undisputed. They have been summarized by Lambert J.A. who wrote the unanimous reasons of the British Columbia Court of Appeal reported at (1983), 149 D.L.R. (3d) 385. Here is how Lambert J.A. related these facts, at pp. 386‑88:

Alltrans is incorporated in Ontario. It operates a trucking service that is exclusively interprovincial and international. It has three depots in British Columbia, the principal one in Burnaby. From that depot deliveries of goods from outside the province are made throughout the lower mainland. To that depot goods from the lower mainland are shipped for onward transportation out of the province. Alltrans is therefore a federal undertaking under head (29) of s. 91 and para. (a) of head (10) of s. 92 of the Constitution Act, 1867 .

As Alltrans is a federal undertaking the labour relations between it and its employees are governed by the Canada Labour Code, R.S.C. 1970, c. L‑1. Three unions are certified under that Act for the Burnaby depot, the teamsters for drivers, the machinists for truck maintenance workers, and the office workers for clerical workers.

The Canada Labour Code and the regulations under that Act contain provisions for safety committees in the work place and for the use of protective footwear. We were referred to the Safety and Health Committee Regulations, SOR/78‑559, and to the Canada Protective Clothing and Equipment Regulations, C.R.C. 1978, c. 1007.

The Workers Compensation Act of British Columbia empowers the board to make regulations for the prevention of injuries and industrial diseases in employments and places of employment. An officer of the board may inspect a place of employment. The board has made the Industrial Health and Safety Regulations, B.C. Reg. 585/77.

It was conceded by all the parties to the appeal that the federal regulations under the Canada Labour Code and the provincial regulations under the Workers Compensation Act, in so far as they each related to safety committees and protective footwear, the relevant items in this appeal, did not conflict with each other, but rather duplicated and supplemented each other.

An officer of the Workers' Compensation Board inspected the Burnaby depot and on May 25, 1979, issued an inspection report. The substance of the inspection report was as follows:

During inspection of these operations the following infractions of W.C.B. Regulations or other hazards were observed.

1. Workers were observed in the vehicle repair section wearing running shoes & other types of inadequate footwear. This contravenes I.H. & S. Reg. 14.08(1) & (2).

Ensure all workers in this work establishment who require to enter the vehicle repair section are wearing adequate footwear in accordance with the I.H. & S. Regs.

2. There is no safety committee operating at this establishment contrary to I.H. & S. Regs. Section 4.00.

Establish and maintain a safety committee in accordance with the I.H. & S. Regs.

. . . . .

NOTE:

The Workers' Compensation Act requires that one copy of this report be posted in a conspicuous place at or near the operation inspected.

An employer who fails to comply with industrial, health and safety regulations is subject to a penalty assessment or levy, prosecution and or closure order.

(I have italicized the part that was handwritten.)

The final sentence under No. 1 and the final sentence under No. 2 are the two orders in issue.

The appellant applied to the Supreme Court of British Columbia for a declaration that the two orders in issue are invalid on the ground that the regulations under which the two orders were made are within the exclusive legislative competence of the Parliament of Canada when they are applied to a federal undertaking.

Bouck J. of the Supreme Court of British Columbia granted the relief sought by the appellant: (1980), 116 D.L.R. (3d) 79.

The respondent appealed to the Court of Appeal for British Columbia. The Court of Appeal allowed the appeal and dismissed the appellant's application.

III‑‑The Judgments of the Courts Below

These judgments are reported. They have been summarized and discussed at length in Bell Canada.

IV‑‑The Constitutional Question

The issue in this appeal appears in the constitutional question stated by Ritchie J.:

Whether the Workers Compensation Act, R.S.B.C. 1979, c. 437, insofar as it purports to empower the Workers' Compensation Board of British Columbia to regulate safety conditions at a federal undertaking, is ultra vires the Legislative Assembly of British Columbia, or inapplicable or inoperative in respect of such undertaking?

V‑‑The Impugned Provisions

As is indicated by its title, the Workers Compensation Act, R.S.B.C. 1979, c. 437 (the "B.C. Statute") creates a compensation scheme for the benefit of workers injured in the course of their employment. It establishes an accident fund which is maintained by assessments levied upon employers subject to the B.C. Statute (ss. 36 to 39). Alltrans Express Ltd. is one of these employers (s. 36, Class 7). Differential rates of assessment may be prescribed under s. 42:

42. The board shall establish subclassifications, differentials and proportions in the rates as between the different kinds of employment in the same class as may be considered just; and where the board thinks a particular industry or plant is shown to be so circumstanced or conducted that the hazard or cost of compensation differs from the average of the class or subclass to which the industry or plant is assigned, the board shall confer or impose on that industry or plant a special rate, differential or assessment to correspond with the relative hazard or cost of compensation of that industry or plant, and for that purpose may also adopt a system of experience rating.

An unpaid assessment constitutes a lien upon the property of the employer (s. 52). Sections 53 and ff. provide inter alia for worker's and employer's notification of injury, application for compensation, duty of physician or practitioner, worker's duty to submit to examination, medical review panels, deceased workers, accounting and audit of accounts.

The appellant does not attack the validity or applicability of the compensation scheme of the B.C. Statute. It concedes "that it and its employees are proper parties to the Respondent's compensation scheme, and...that the Respondent may have the power to investigate the Appellant's premises for the purpose of determining the rate upon which assessments are to be levied against the Appellant pursuant to the compensation scheme." According to the appellant's factum in this Court, "[s]uch activities by the Respondent do not interfere with the management and operation of the federal undertaking."

In addition to the compensation scheme above referred to, the B.C. Statute establishes a prevention scheme "for the prevention of injuries and industrial diseases in employments and places of employment."

Sections 71 to 74 of the B.C. Statute provide in part as follows:

71. (1) The board may make regulations, whether of general or special application and which may apply to employers, workers and all other persons working in or contributing to the production of an industry within the scope of this Part, for the prevention of injuries and industrial diseases in employments and places of employment, including regulations limiting the right to conduct blasting operations in industries within the scope of this Part to those persons who are the holders of a blaster's certificate issued by the board . . . .

(2) The board may issue orders and directions specifying the means or requirements to be adopted in any employment or place of employment for the prevention of injuries and industrial diseases.

(3) An officer of the board or a person authorized by the board may at all reasonable hours inspect the place of employment of a worker within the scope of this Part. Immediately after each visit the person authorized under this subsection shall cause to be posted in a conspicuous place, at or near the works, establishment or premises, a statement showing what portion of the works, establishment or premises has been inspected, and the condition found to prevail there, and he shall furnish a copy of the statement to the manager of the works, establishment or premises, and, where the inspection visit is made by an industrial hygiene officer, and where it is impracticable for the statement required by this section to be posted immediately after the visit, it shall be posted as soon as possible after the visit.

(4) The board may engage in and carry on a general educational program for employers, employees and the general public in relation to the prevention of accidents and industrial diseases, first aid and the general operations and responsibilities of the board, and for that purpose may advertise, sponsor contests and award prizes, scholarships and other monetary awards, including rewards for bravery in rescuing or attempting to rescue a worker from serious injury or death, and may undertake or support research in matters relating to its responsibilities under this Act.

(5) The board may charge a class or subclass with the cost of investigations, inspections and other services rendered the class or subclass for the prevention of injuries and industrial diseases.

(6) ...

(7) ...

(8) A commissioner or officer of the board may investigate an accident resulting in injury to, or the death of, a worker, and may inspect and inquire with respect to health and safety matters at any place of employment, and may make the inquiries and inspect the documents he considers necessary for these purposes, and any employer, worker or other person who withholds information from a commissioner or officer making inquiries, or who otherwise obstructs or interferes with a commissioner or officer in the exercise of his functions under this section, commits an offence and is liable on conviction to a fine not exceeding $5,000, or to imprisonment not exceeding 3 months, or to both.

(9) ...

72. (1) On every inspection visit under section 71 (3), the employer and the workers shall each have a right to have a representative accompany the officer of the board or person authorized by the board.

(2) The representative of the employer shall be a person the employer appoints.

(3) Where there are 2 or more employers at the place of work being inspected, the employer for this purpose shall be selected by the officer of the board having regard to the employer who appears to him to be the principal contractor, or to have the greatest number of workers, or to have the workers with the greatest exposure to hazard.

(4) Where there is a union, the workers' representative shall be selected by the union from among the members of the accident prevention committee, the shop stewards or other union officials, employed at the place of work being inspected.

(5) In this section "union" means,

(a) where the workers in the place of employment being inspected are all, or substantially all, one bargaining unit certified under the Labour Code, the union certified as the bargaining agent for that bargaining unit; or

(b) where the workers in the place of employment are not substantially all in one bargaining unit, or where there is no union certified for that bargaining unit, the union selected by the officer of the board, having regard to the union that appears to him to have the greatest number of members at the place of employment being inspected, and the union that appears to him to have members with the greatest exposure to hazard.

(6) Where there is no union, the workers' representative shall be selected by and from among the workers' representatives on the accident prevention committee, and, where there is no committee, or where no worker member of that committee is available, the officer of the board may select the workers' representative.

(7) An employer may object to the selection of a worker representative on the ground that the withdrawal of that worker from his work would unduly impede production, and another worker representative shall then be chosen; but an employer may only object to one selection on that ground.

(8) A worker representative accompanying an officer of the board or person authorized by the board shall continue to be entitled to the same wage rate or other remuneration as if he were engaged in his normal work.

(9) Nothing in this section shall be construed as

(a) requiring the board to give advance notice of an inspection visit;

(b) limiting the right of an officer of the board or person authorized by the board to speak to a person out of earshot of any other person; or

(c) limiting the authority of the board by regulation or by order, to confer other or further rights on union officials or other workers.

(10) Where an inspection visit involves the attendance of an officer of the board or person authorized by the board at one place of work for a period exceeding one day, the rights conferred under this section may be abridged by regulation of the board, or by direction of the officer of the board.

73. (1) Where the board considers that

(a) sufficient precautions are not taken by an employer for the prevention of injuries and industrial disease;

(b) the place of employment or working conditions are unsafe; or

(c) the employer has not complied with regulations, orders or directions made under section 71,

the board may assess and levy on the employer a percentage of the amount of the assessment for the preceding year or the projected assessment for the current year and may collect the amount so assessed and levied in the same way as an assessment is collected. The powers conferred by this subsection may be exercised as often as the board considers necessary. The board, if satisfied the default was excusable, may relieve the employer in whole or in part from liability.

(2) Where an injury, death or disablement from industrial disease in respect of which compensation is payable occurs to a worker, and the board considers that this was due substantially to the gross negligence of an employer or to the failure of an employer to adopt reasonable means for the prevention of injuries or industrial diseases or to comply with the orders or directions of the board, or with the regulations made under this Part, the board may levy and collect from that employer as a contribution to the accident fund the amount of the compensation payable in respect of the injury, death or industrial disease, not exceeding in any case $11,160.08, and the payment of that sum may be enforced in the same manner as the payment of an assessment may be enforced.

74. (1) Where the board or an officer of it considers that conditions of immediate danger exist in any employment or place of employment which would likely result in serious injury, death or industrial disease to any worker employed there, the board or officer may order the employer to immediately close down all or part of the employment or place of employment and the industry carried on there. The order shall be in writing and is sufficiently served if left with the owner, manager, superintendent or other person having apparent supervision of the employment or place of employment. An order of an officer of the board is not effective beyond 24 hours unless confirmed in writing by the board.

(2) Where as a result of an order under subsection (1) or under section 70 (1) (c) the employment of a worker of the employer to whom the order is addressed is suspended or terminated, the employer shall pay the worker the amount he would have earned, or been likely to earn, for the day of the closure and for the next 3 working days during which the closure is in effect, or for a longer period provided by a collective agreement as defined in the Labour Code.

(3) An employer who fails, neglects or refuses to comply with an order made by the board or officer of the board under subsection (1) commits an offence and is liable on conviction to a fine not exceeding $50,000, or to imprisonment not exceeding 6 months, or to both.

As is the case for the Quebec Statute, the B.C. Statute is administered by the Minister of Labour.

Pursuant to s. 71 of the B.C. Statute, the Workers' Compensation Board has made regulations known as the Industrial Health and Safety Regulations, B.C. Reg. 585/77.

These regulations comprise s. 4 relating to safety committees, and s. 14.08 (1) and (2) relating to safety footwear.

Section 4.04 provides as follows:

4.04. (1) The Industrial Health and Safety Committee shall have:

Committee membership

(a) not fewer than four regular members, employed at the operation and experienced in the types of work carried on at the operation, and

(b) membership chosen by and representing the workers and the employer. In no case shall the employer's representatives outnumber those of the workers, and

(c) a chairman and secretary elected from and by the members of the committee. Where the chairman is an employer member the secretary shall be a worker member and vice versa.

Provision of additional committees

(2) Where the size or nature of the operation precludes the effective functioning of a single committee, additional committees may be established as the situation requires, or as directed by an officer of the Board.

Function

4.06 (1) The Industrial Health and Safety Committee shall assist in creating a safe place of work, shall recommend actions which will improve the effectiveness of the industrial health and safety program, and shall promote compliance with these regulations.

Detailed duties

(2) Without limiting the generality of the foregoing, the Committee shall:

(a) (i) determine that regular inspections of the place of employment have been carried out as required by regulation 8.08; and

(ii) determine that accident investigations have been made as required by Section 6, and

(iii) recommend measures required to attain compliance with these regulations and the correction of hazardous conditions, and

(iv) where feasible, appoint at least one worker member and one employer member to participate in such inspections and investigations, and

(b) determine that the structures, equipment, machinery, tools, methods of operation and work practices are in accordance with these regulations, and

(c) consider recommendations from the work force in respect to industrial health and safety matters and shall recommend implementation where warranted, and

(d) hold regular meetings at least once each month for the review of:

(i) reports of current accidents or industrial diseases, their causes and means of prevention, and

(ii remedial action taken or required by the reports of investigations and inspections, and

(iii) any other matters pertinent to industrial health and safety.

Subsections (1) and (2) of s. 14.08 provide as follows:

FOOTWEAR

General requirements

14.08. (1) Substantial footwear, made of leather or other material appropriate to the protection required, shall be worn by workers in all industrial occupations.

Safety footwear

(2) Except as provided by clause (6), in any occupation where there is a hazard of injury to the toes, metatarsal area, or the soles of the feet, safety footwear shall be worn meeting the requirements of Canadian Standards Association Standard Z195 "Safety Footwear" or other standard acceptable to the Board.

The two orders contained in the inspection reports which gave rise to the case at bar were issued under the authority of these legislative and regulatory provisions.

VI‑‑Characterization and Classification of the Impugned Provisions

I find it impossible to distinguish the provisions impugned in the case at bar from those of the Quebec Statute which are discussed in Bell Canada and Canadian National.

The reasons I gave in Bell Canada regarding the inapplicability of the Quebec Statute to federal undertakings dictate the same result in the case at bar. The impugned provisions of the B.C. Statute necessarily relate to the working conditions, labour relations and the management of the undertakings which are subject to the B.C. Statute. This being the case, the provisions cannot constitutionally apply to a federal undertaking. The similarities between the Quebec preventive scheme and the B.C. preventive scheme are striking, and among those similarities, the following are particularly noteworthy: the resemblance between the Industrial and Health Safety Committee in the case at bar and the Health and Safety Committees established pursuant to ss. 68 to 86 of the Quebec Statute; between s. 14.08 (1) and (2) of Reg. 585/77 relating to safety footwear in the present case and ss. 51(11), 78(4) and 223(9) of the Quebec Statute, relating to individual protective devices and equipment; between s. 4.06 (2) (b) of Reg. 585/77 relating to structures, equipment, machinery, tools, methods of operation and work practices and s. 51(1), (3) and (7) of the Quebec Statute; between s. 71 (3) and (8) of the B.C. Statute, relating to inspection and investigation, insofar as they are connected with the prevention scheme of the B.C. Statute, and ss. 179 to 193 of the Quebec Statute, relating to inspection and discussed in the Canadian National case; and, importantly, between the B.C. Board's power to order an employer to close down all or part of the place of employment to prevent injuries, under s. 74 (1) of the B.C. Statute, and the corresponding power of the Quebec Commission's inspectors to order the shut‑down of a work place under s. 186 of the Quebec Statute.

It is true that in the B.C. Statute, the preventive scheme is less comprehensive than the one established by the Quebec Statute, but it can be, and has been, in large measure completed and particularized by regulation. The difference between the two schemes is not a difference in kind but one in scope. It is true also that, unlike the Quebec prevention scheme, the prevention scheme of the B.C. Statute is found in the same Act as the compensation scheme. But for the reasons I gave in Bell Canada, I do not find this difference relevant. It is not only possible but indeed necessary to distinguish, from the point of view of constitutional law, between the characterization of the preventive scheme and that of the compensation scheme. Unlike the preventive regime, the compensation scheme does not relate to working conditions, labour relations or the management of an undertaking. Instead it represents a statutory regime of collective no‑fault liability designed to replace a private law regime of individual liability founded upon fault. This differing characterization allows us to sever the compensation regime from the preventive regime, even when they are in the same statute, in order to properly focus on the rules which do and do not apply to federal undertakings.

I should add that s. 73 of the B.C. Statute is designed and drafted as a means to enforce the prevention scheme and that, in my view, it forms an integral part of the latter. It should accordingly be held inapplicable to federal undertakings together with the prevention scheme. It differs in this respect from s. 42 which is clearly part of the compensation scheme and is therefore applicable to federal undertakings, as was held by Bouck J. at p. 85.

VII‑‑Conclusions

I would answer the constitutional question as follows:

The Workers Compensation Act, R.S.B.C. 1979, c. 437, insofar as it empowers the Workers' Compensation Board of British Columbia to regulate safety conditions, is inapplicable in respect of a federal undertaking.

I would allow the appeal, set aside the judgment of the Court of Appeal of British Columbia and restore the judgment of the Supreme Court of British Columbia.

The whole with costs throughout. However, there should be no order as to costs for or against the interveners.