



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Northern Thunderbird Air Inc. v. British Columbia
  (Workers Compensation Appeal Tribunal),









2017 BCCA 60




Date: 20170201

Docket: CA43818

Between:

Northern
Thunderbird Air Inc.

Appellant

(Petitioner)

And

Workers Compensation Appeal Tribunal,
Ruben Cohen, Carolyn Cross, Kelly Jablonski, Jeffrey McCord, Cameron Sobolik
and Troy Zanatta

Respondents

(Respondents)




Before:



The Honourable Chief Justice Bauman

The Honourable Mr. Justice Willcock

The Honourable Mr. Justice Fitch




On appeal from: an order
of the Supreme Court of British Columbia, dated
July 4, 2016 (
Northern Thunderbird Air Inc. v. British Columbia (Workers
Compensation Appeal Tribunal
, 2016 BCSC 1216,
Vancouver Registry No. S153073)

Oral Reasons for Judgment




Counsel for the Appellant:



G.L.O. Wells, Q.C.
  and R. Moyse





Counsel for the Respondent, Workers Compensation Appeal
  Tribunal



M. Bennett





Counsel for the Respondents: R. Cohen, K. Jablonski, J.
  McCord, Cameron Sobolik and T. Zanatta



S. Matthews, Q.C. and
  M.L. Segal





Counsel for the Respondent, C. Cross



W. Simek





Place and Date of Hearing:



Vancouver, British
  Columbia

February 1, 2017





Place and Date of Judgment:



Vancouver, British
  Columbia

February 1, 2017






Summary:

Appeal from an order dismissing
Northern Thunderbird Airs petition for judicial review of the Workers
Compensation Appeal Tribunals decision that the individual respondents
injuries did not arise out of and in the course of their employment. The
respondents were travelling to a CEO peer-advisory group retreat when their flight
crash-landed. Held: appeal dismissed; the tribunals decision was not patently
unreasonable. The WCAT clearly laid out the route to its decision, there was
evidence before it to support the findings it made and its decision cannot be
said to be 
openly,
clearly, evidently unreasonable.

[1]

WILLCOCK J.A.
: This is an appeal from the July 4, 2016 judgment
of Madam Justice Baker dismissing the petition brought by Northern Thunderbird
Air Inc. for an order pursuant to the
Judicial Review Procedure Act
,
R.S.B.C. 1996, c. 241, setting aside the decision of the Workers Compensation
Appeal Tribunal (WCAT) and an order remitting the matter to WCAT for
reconsideration.

[2]

The history of the proceedings is summarized in the judgment as follows:

[1]        On October 27, 2011, an airplane owned and
operated by the Petitioner crash-landed on Russ Baker Way in Richmond, B.C.,
having departed from the Vancouver Airport South Terminal on a charter flight
heading to Kelowna Airport.

[2]        The Respondents Cohen, Cross, Jablonski, McCord,
Sobolik and Zanatta (the individual Respondents) were all passengers on the
plane at the time of the crash. The Individual Respondents, other than Ms. Cross,
commenced one action in this court against the Petitioner seeking to recover
damages. Ms. Cross commenced a separate action in this court. In their
civil actions, the Individual Respondents allege that they suffered injuries
and losses as a result of the accident; and that the accident was caused by the
negligence of the Petitioner and/or its employees.

[3]        The Individual Respondents were flying to Kelowna
on route to the Sparkling Hills Resort located near Vernon. They were
travelling to the resort to attend an annual retreat organized by a corporation
called TEC (The Executive Committee) Canada Ltd. (TEC). The Individual
Respondents were members of a small sub-group of TEC that has been described by
the Petitioner as a CEO peer-advisory group known as TEC 335.

[4]        The Petitioner and the Individual Respondents
applied to WCAT pursuant to s. 257 of the
Workers Compensation Act
, R.S.B.C. 1996, c. 492

(the
Act
) for a determination as
to whether the Individual Respondents injuries arose out of and in the course
of employment within the scope of Part 1 of the
Act
.



[6]        The parties provided WCAT with written submissions
and adduced evidence in support of their respective positions, including
extensive excerpts from transcripts of examinations for discovery of the
Individual Respondents conducted in the two civil actions. The Petitioner also
filed a report prepared by Jim Donihee. Mr. Donihee retired as a Colonel
from the Canadian Armed Forces in the fall of 2000 and then embarked on a
career in the oil and gas industry. He became involved with TEC in 2006 and
served as a TEC Chair from 2010 to 2012.

[7]        On February 18, 2015. a one-person panel of WCAT
issued a single decision in WCAT-2015-00533 and WCAT-2-15-00534 (the WCAT
decision). WCAT concluded that the Individual Respondents, with the exception
of Ms. Cross, were workers. WCAT concluded that it was not necessary to
determine whether Ms. Cross was a worker, but presumed she was for the
purposes of determining whether her injuries arose out of and in the course of
her employment.

[8]        WCAT concluded that the injuries sustained by the
Individual Respondents, including Ms. Cross,
did not arise out of and
in the course of their employment
. As a result of this conclusion, the
Individual Respondents are not precluded from proceeding with their civil
actions against the Petitioner.

[Emphasis added.]

The Decision Appealed From

[3]

The decision of the WCAT was made under s. 257 of the
Workers
Compensation Act
, R.S.B.C. 1996, c. 492

(the
Act
),
which authorizes the WCAT, when an action has been commenced based on a
personal injury, to determine whether
the injury arose out
of, and in the course of, the workers employment. The decision can be found at
WCAT-2015-00533 and WCAT-2-15-00534.

[4]

Herb Morton, Vice Chair, sitting as the WCAT, concluded at para. 10 that
the facts were generally not in dispute. The applications involved questions of
mixed fact, law, and policy, and did not involve any significant issue of
credibility. The applications were therefore considered on the basis of the
written evidence, including both affidavits and transcripts of examinations for
discovery, and submissions, without an oral hearing.

[5]

The application was considered in light of Worksafe policies in effect
at the time of the accident
on
October 27, 2011. These included Items #C3-14.00 and
#C3-21.00 in the
Worksafe
Rehabilitation Services and Claims
Manual, Volume II
.
The
latter describes a policy for attendance at educational or training courses in
the following terms:

Compensation
coverage does not generally extend to injuries or death that occur during
educational or training courses. Such courses are generally for the workers
own benefit, and are not considered to have sufficient employment connection as
to be compensable.



However, some
types of educational or training courses may be sufficiently connected to the
workers employment as to be considered part of that employment. Consideration
is then given to the factors in Item C3-14.00 and any other relevant factors
not listed in policy, and the evidence is weighed to determine whether the injury
or death arose out of and in the course of the employment.



Factors that may weigh in favour of coverage for injuries or
death sustained during educational or training courses include whether the
education or training:

·

took place on the employers premises;

·

was for the benefit of the employers business;

·

was undertaken at the direction of the employer;

·

involved using equipment supplied by the employer;

·

was during a time period for which the worker was being paid;

·

was paid for by the employer; or

·

was considered by the employer to be part of the workers job.

No single factor is
determinative. In marginal cases, it is impossible to do better than weigh the
employment features of the education or training against the personal features
to reach a conclusion as to whether the test of employment connection has been
met.

[6]

The WCAT review of Worksafe policies and its prior decisions
demonstrates keen awareness of the issues with respect to treatment of job
training and educational programs. WCAT noted, for example, that a distinction has
been drawn between things workers must do to become and continue to be
qualified to perform a particular job and the things they must do as part of the
job. The WCAT, cited a prior policy manual as an appropriate description of
continuing norms at para. 102:


Generally speaking, only the
latter activities are covered. A person may, for example, need to spend some
time in an educational or training institute to obtain or maintain the
qualifications necessary for a particular job, but that person is not normally
covered while attending that institution.

[7]

Further, WCAT noted that Worksafe has addressed specific courses,
adopting a policy, for example, that compensation coverage does not extend to
injuries occurring in first aid courses taken off the employers premises and
outside work hours, even though the worker may receive additional pay for a
first aid ticket and be reimbursed the course fees by the employer.

[8]

After reviewing the evidence in the light of those policies, the WCAT
found the following enumerated criteria were not determinative:

a)

TEC meetings were generally held away from the employers premises;

b)

The
plaintiffs
membership in TEC was intended to be at least indirectly for the
employers benefit as well as having an aspect of personal development;

c)

Employers did not provide instruction to the
plaintiffs
to
participate in TEC (or attend the retreat);

d)

Equipment was not Supplied by the Employer;

e)

Payment of TEC dues by the employer could be viewed as comparable
to an employee using a gym membership paid for by the employer;

f)

The
employees
(apart from Cross) were paid annual salaries, their attendance at TEC
activities on weekdays occurred during a time period for which they were being
paid but they had flexibility in their work hours and times;

g)

The plaintiffs participation in TEC activities was not part of their
normal work activities. They kept confidential any discussions they had at TEC
meetings, and did not discuss these with their colleagues or employees.

[9]

The WCAT concluded:

[135]    While the evidence is mixed, on balance I consider
that the weight of the evidence supports a conclusion that this training is
better characterized as being for the plaintiffs own benefit in enhancing
their general knowledge, and skills in relation to their functioning as CEOs.
It assisted the members in developing their abilities to perform their roles in
a general way, which was not related to their specific industry. On a judgment basis,
I find that the personal features of the education and training were
predominant. The plaintiffs status is appropriately determined on the basis of
the general principle that compensation coverage does not generally extend to
injuries or death that occur during educational or training courses.

[136]    I find that the
plaintiffs participation in TEC was not sufficiently connected to their
employment as to be considered part of that employment. Furthermore, I do not
consider that there were additional circumstances surrounding the October 2011
retreat to connect the plaintiffs participation in that retreat to their
employment. While the travel to the retreat occurred on a Thursday, and the
first full day of events at the retreat occurred on a Friday, the second full
day of events occurred on Saturday and was followed by a half day of events on
Sunday. The retreat was thus spread over what might have been viewed as
normally being workdays and personal days.

[10]

The parties agreed on the hearing of the petition for judicial review,
as they do on this appeal, that the standard of review of the WCAT decision is
patent unreasonableness, the standard described in s. 58(2)(a) of the
Administrative
Tribunals Act
, S.B.C. 2004, c. 45:

58 (1) If the tribunal's enabling Act contains 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.

[11]

The chambers judge addressed the appellants argument as follows:

[29]

Condensed
to its simplest terms, the Petitioners position is that in its decision, WCAT
does not demonstrate that it adequately addressed or engaged with the evidence
favorable to the Petitioners position.

[30]

In the Petitioners
written and oral submissions, counsel argued that WCAT did not adequately
explain the basis for its determinations and decisions; or failed to deal
adequately with a critical issue, leaving its reasoning unclear.

[12]

The argument was canvassed in detail. The chambers judge held:

[33]

I am of the view that
the reasons given by WCAT in the decision under review here do allow this Court
to understand why WCAT made its decision and more than adequately permit this
Court to determine whether the conclusions reached are within the range of
acceptable outcomes.

And further:

[51]

It
is true that WCAT did not recite or set out in any detail the specific evidence
it considered in relation to the conclusions drawn in respect of each of the
nine factors but in my view, it was not necessary that it do so. Reading the
decision as a whole, including the extensive references to evidence earlier in
the decision, it is clear that WCAT understood, considered and weighed the
evidence put before it by the parties.



[53]

In
my view, paragraphs 134 to 136 set out the ratio of the WCAT decision. WCAT
acknowledged that the evidence was mixed − that there were factors
favouring the position taken by the Petitioner; and factors favouring the position
taken by the Individual Respondents. WCAT weighed the conflicting evidence and
for the reasons given, concluded that the weight of the evidence supported
a conclusion that the personal features of the Individual Respondents
participation in the education and training provided by TEC were predominant;
and that WCAT should apply the general policy that compensation coverage does
not extend to injuries that occur during educational or training courses.

[54]

In
Anderson v. British
Columbia (Workers' Compensation Appeal Tribunal)
, 2015 BCSC 1443,
Justice Fenlon heard, among other submissions, an argument that the reasons of
the Tribunal were inadequate. She concluded that there was more than enough
evidence to support the findings made by WCAT. In her conclusions, she stated:

21.
Finally I note that the issue before me on this judicial review is whether the
decision that the altercation arose out of and in the course of employment is
patently unreasonable. That is the question. The issue is not whether each fact
leading up to the conclusion is patently unreasonable:
Kovach v. BC
(Workers Compensation Board)
, [2001] 1 S.C.R. 55.

22. I have
addressed and considered each of the challenged facts on the basis of whether
it was patently unreasonable for the adjudicator to have found those three
facts. I have done so because that is how the petitioner argued the case. Nonetheless,
the analysis at the end of the day requires me to step back and consider the
overall decision that is contained in the certificate, the overall decision
that the altercation in issue arose out of and in the course of employment. That
decision is soundly and thoroughly supported on the evidentiary record and in
the reasons of the Tribunal.

[55]      While
there was evidence supporting the contrary position taken by the Petitioner, I
am of the view that there was also ample evidence supporting the conclusion
reached by WCAT. It is not the task of this Court to re-weigh the evidence. I
am also of the view that the decision sets out the path of reasoning followed
by WCAT and adequately addresses the evidence and the arguments submitted by
the Petitioner. Read as a whole, the decision demonstrates careful
consideration and weighing of the evidence; and application of the applicable
statutory provisions and policies to the facts as found.

Argument on Appeal

[13]

The grounds of appeal do not differ substantially from the argument
considered by the chambers judge. The appellant summarizes the case on appeal
as follows:

The WCAT Panel found that
participation in TEC 335 did not involve employment-related activities. That
determination: a) was fundamental to the overall decision; b) was meritless,
for being contrary to the evidence; and c) was supported only by a one-sentence
irrational explanation.

Analysis

[14]

The chambers judge
found there was evidence to support the WCAT conclusions and the decision could
not be said to be patently unreasonable. There being no issue with respect to
the correct standard of review, the
issue on appeal is whether the standard was applied correctly by the reviewing
judge. Addressing that question puts us in the position of the reviewing judge:
Henthorne v. British Columbia Ferry Services Ltd.
,
2011 BCCA 476;
Lysohirka v. British Columbia
(Workers' Compensation Board
),
2012 BCCA 457;
Vandale v. Workers Compensation
Appeal Tribunal
, 2013
BCCA 391.

[15]

Mr. Wells, for the appellant, says the finding critical to the outcome
is found at para. 125 of the WCAT decision, where the tribunal considered one
of nine non-exhaustive factors described in the
Claims Manual
: whether
the injury occurred while the worker was performing activities that were
part
of the workers job
. The WCAT found:

[125]    The plaintiffs
participation in TEC activities was not part of their normal work activities.
They kept confidential any discussions they had at TEC meetings, and did not
discuss these with their colleagues or employees. This factor does not support
a finding of employment-connectedness.

[16]

The appellant says that
finding is inconsistent with evidence the employees used their time at TEC
functions to discuss work, get input and direction on specific business issues,
learn about business plans and management structures and to think
strategically. In my view, however, the conclusion is not contrary to the
evidence but entirely consistent with the evidence set out in paras. 22-96 of
the WCAT decision. The WCAT was clearly aware of, referred to and placed some
weight upon, the fact
the
plaintiffs participated in TEC as a peer-to-peer mentoring group, with a view
to enhancing their abilities as business owners or CEOs.
It
did not overlook the evidence of the use made by the
employees of TEC training in their employment. The WCAT concluded:

[127]    Overall, the application of the factors set out in
item #C3-14.00 provides some limited evidence of employment-connectedness. The
factor which provides the strongest support for such a finding is (b),
regarding benefit to the employer.
The evidence supports a conclusion that
the plaintiffs chose to be members of TEC with a view to enhancing their
abilities as owners/CEOs (while also promoting a work/life balance)
. But
for their roles as owners/CEOs, they would not have been members of the
TEC group.[Emphasis added.]

[17]

I see no basis upon which we might conclude the WCAT was unaware of or
failed to take account of the many ways in which the claimants used TEC to
enhance their job performance or used what they learned at TEC in their employment.

[18]

I would not accede to the argument that the WCATs reasons inadequately
address the nexus between the TEC functions and the employees jobs. The
reasons cannot be said to be inadequate simply because the evidence in support
of the conclusion that participation in TEC was not a part of the respondents
normal work activities is not recited in para. 125. In my view, the WCAT has
clearly laid out the route to its decision. There is sufficient clarity of fact
finding. To use the words Mr. Moyse cited from
Newfoundland and Labrador
Nurses Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62,
[2011] 3 S.C.R. 708 at para. 16, the reasons allow the reviewing court to
understand why the tribunal made its decision and permit the reviewing court to
determine whether the conclusion is within the range of acceptable outcomes;
the
Dunsmuir
criteria are therefore met.

[19]

The WCAT finding that participation in TEC did not involve
employment-related activities was not fundamental to the overall decision. Examination
of the nine enumerated factors was not determinative of the outcome. The WCAT
itself, at para. 128, described the result of its consideration of the factors
enumerated in the Worksafe policies as mixed. The WCAT recognized that many
of the enumerated factors had little weight in the exercise because they were
inapplicable to self-directed CEOs. Having done so, the WCAT referred to and
applied the policy (cited above at para. 5) that in marginal cases, it is
impossible to do better than weigh the employment features of the education or
training against the personal features to reach a conclusion as to whether the
test of employment connection has been met.

[20]

The decision, as the chambers judge noted, ultimately turned on the view
that personal features of the respondents participation in the education and
training provided by TEC were predominant. That view is clearly supported in
paras. 129 and 135 of the WCAT decision.

[21]

The fact referred to in para. 125 of the decision, that the respondents
did not communicate the lessons learned at TEC with their colleagues or
employees, was one indicia of the personal nature of their participation in the
TEC program.

[22]

An appeal that rests upon an assertion that the tribunals decision was
not founded upon the evidence must be considered in light of what Madam Justice
Levine said in
Speckling v. British Columbia (Workers Compensation Board)
,
2005 BCCA 80 at para. 37:

[A]
decision is not patently unreasonable because the evidence is insufficient. It
is not for the court on judicial review, or for this Court on appeal, to second
guess the conclusions drawn from the evidence considered by the Appeal Division
and substitute different findings of fact or inferences drawn from those facts.
A court on review or appeal cannot reweigh the evidence. Only if there is no
evidence to support the findings, or the decision is openly, clearly,
evidently unreasonable, can it be said to be patently unreasonable.

[23]

In
Speckling
this Court noted at para. 25 that the Board and its
employees and tribunals have day-to-day experience not only in the assessment
and review of workers claims for compensation, but also in the application of
the policy and purposes of the
Act:

The questions in issue here:
whether Mr. Specking suffered an injury in the course of his employment and
whether a decision is a medical decision, are dealt with on a regular basis
by the Board. The Court can profess no particular expertise on these questions.

[24]

The deference owed to the WCAT is restated in
British Columbia
(Workers Compensation Appeal Tribunal) v. Fraser Health Authority
, 2016
SCC 25 where Mr. Justice Brown, for the majority wrote, at para. 30:

Because a court must defer where there is
evidence
capable of supporting
(as opposed to
conclusively
demonstrating
) a finding of fact, patent unreasonableness is not
established where the reviewing court considers the evidence merely to be
insufficient (
Speckling v. Workers Compensation Board (B.C.)
, 2005 BCCA
80, 209 B.C.A.C. 86, at para. 37). Simply put, this standard precludes curial
re-weighing of evidence, or rejecting the inferences drawn by the fact-finder
from that evidence, or substituting the reviewing courts preferred inferences
for those drawn by the fact-finder.

[25]

In my opinion, there is evidence to support the findings. The decision
is not openly, clearly, evidently unreasonable. It cannot be said to be
patently unreasonable.

I would dismiss the appeal.

[26]

BAUMAN C.J.B.C.
: I agree.

[27]

FITCH J.A.
: I agree.

[28]

BAUMAN C.J.B.C.
: The appeal is dismissed.

The Honourable Mr. Justice Willcock


