Executive Summary: Key Legal and Evidentiary Issues

• BC Hydro sought judicial review of two Workers' Compensation Board Review Division decisions finding it had contravened s. 73 of the Workers Compensation Act.
• Central to the dispute was whether the term "injury" in s. 73, as it existed in 2021, encompassed mental disorders.
• A further issue was whether a contravention of s. 73 required proof of intent, and whether BC Hydro possessed the requisite intent to dissuade the worker from reporting.
• Evidentiary findings established that BC Hydro advised the worker it was preferable to remain on disability benefits rather than file a claim with the Board, and persuaded the disability insurer to continue payments.
• Statutory interpretation principles, including the broad remedial purpose of the Occupational Health and Safety provisions, informed the court's analysis of the scope of s. 73.
• Reasonableness under Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, was the agreed standard of review applied by the court.

Facts of the case

In November 2020, a BC Hydro worker raised concerns about a fellow employee and engaged BC Hydro's respectful workplace process. She subsequently went off work for medical reasons in February 2021. In March 2021, BC Hydro management met with the worker and advised her that she would receive disability benefits and that she was not required to file a claim with the Workers' Compensation Board. The worker provided evidence that BC Hydro management told her it was preferable for her to stay on disability benefits rather than report her claim to the Board, because a Board investigation would be upsetting and unpleasant for her. BC Hydro also persuaded its disability insurer to continue paying the worker's benefits, despite having received notice from the insurer that the claim appeared work-related and should be handled by the Board. In May 2021, BC Hydro advised the worker she had the option to file a claim herself, which she did in August 2021.

Following the worker's claim for compensation for a mental disorder, the Board issued an inspection report and order against BC Hydro on August 31, 2021, finding that BC Hydro's management had openly impeded the worker from reporting her injury to the Board, in contravention of s. 73(1)(a) of the Workers Compensation Act, RSBC 2019, c. 1 (the "Act"). BC Hydro filed a Request for Review of the order before the Review Division.

Legislative provisions at issue

At the time of the relevant events, s. 73 of the Act prohibited an employer or supervisor from seeking, by any means, to discourage, impede, or dissuade a worker from reporting to the Board an injury or allegation of an injury, an illness, a death, or a hazardous condition. Section 135 of the Act separately addressed mental disorders, providing that a worker is entitled to compensation for a mental disorder payable "as if the mental disorder were a personal injury" arising out of and in the course of employment. BC Hydro argued that this language — treating mental disorder as if it were a personal injury — demonstrated that mental disorder was distinct from "injury" and therefore not covered by s. 73 as it existed in 2021. In October 2022, s. 73 was amended to add a new subsection expressly prohibiting employers from discouraging workers from making or maintaining compensation claims. A definition was also added to the Compensation Provisions providing that "injury" includes an occupational disease and a mental disorder, found at s. 154.1(1) of the Act.

Court's reasoning and analysis

The court reviewed both the June 11, 2024 decision of the Review Division (Decision 1) and the July 10, 2024 reconsideration decision of the Chief Review Officer (Decision 2) under the reasonableness standard established in Vavilov. On the first issue — whether "injury" in s. 73 included mental disorders — the court rejected BC Hydro's interpretation as rigid. The court agreed with both decisions that the purpose of s. 73 and the Occupational Health and Safety provisions broadly is to protect workers and must be given fair, large, and liberal construction pursuant to s. 8 of the Interpretation Act, RSBC 1996, c. 238. The court found it incomprehensible that the legislature, prior to 2022, intended to exclude workers suffering from mental disorders from the protection afforded by s. 73. The court further found that the 2022 amendments did not support BC Hydro's argument: the gap filled by the new s. 73(2) was the absence of an explicit prohibition on dissuading workers from making compensation claims, not an acknowledgment that mental disorders had previously been unprotected under s. 73. The Hansard debates confirmed this reading, and the court found no error in the Review Division's decision not to cite Hansard explicitly, given that both decision-makers had engaged substantively with legislative purpose and intent.

On the second and third issues — intent and the weighing of evidence — the court found that Decision 1 clearly concluded, on the evidence, that BC Hydro management's actions sought to discourage, impede, or dissuade the worker from reporting. The court agreed with the Board that a finding of intent to dissuade does not require a finding of malicious or bad faith intent. Whether BC Hydro was motivated by a mistaken understanding of its reporting obligations or a concern for the worker's wellbeing, neither scenario precluded a finding that it intended to dissuade reporting. The court also found that the failure to explicitly characterize s. 73 as a strict liability offence was not a fatal error, since Decision 1 made clear factual findings of intentional conduct on BC Hydro's part. The court held that administrative decision-makers are not required to address every argument or piece of evidence presented, provided their reasons demonstrate justification, transparency, and intelligibility.

Ruling and overall outcome

Justice Whately dismissed BC Hydro's petition in its entirety, upholding both Decision 1 and Decision 2 as reasonable. The Workers' Compensation Board of British Columbia was the successful party. The Board had advised the court that it would not seek costs in the event it was successful, and accordingly, no costs order was made. No monetary award or damages were granted.