Province is an 'employer'

Negligence lawsuit by dependants of deceased Westray coal miners dismissed

On May 9, 1992, 26 men died in an explosion at the Westray coal mine located in Plymouth, Nova Scotia. The relatives and dependants of the deceased miners received financial compensation from the Nova Scotia Workers’ Compensation Board because the miners’ employer, Curragh Inc., was a covered employer under the Workers’ Compensation Act.

The relatives and dependants (the respondents) subsequently brought an action under the Fatal Injuries Act against the attorneys general for Nova Scotia and Canada in negligence. The provincial attorney general (the applicant) brought an application before the Nova Scotia Supreme Court to determine a question of law.

The applicant sought a dismissal of the action on the grounds that the respondents had received benefits under the Workers’ Compensation Act and had no right of action against the applicant by virtue of the provisions of that act.

Section 17 of the act provides that, where an accident happens to a worker in the course of his employment such that he would be entitled to bring an action against some person other than his employer, the worker may bring an action against that person provided that a written notice of election to bring such a claim is made to the Workers’ Compensation Board within six months of the date of the accident.

Section 18 of the act provides that, for any case within the provisions of section 17, workers and their dependants and their employer shall not have a right of action in respect of an accident against an employer in an industry under part one of the act.

The respondents had claimed compensation under the Workers’ Compensation Act as a result of the accident and had received workers’ compensation benefits.

The claim against the province of Nova Scotia alleged that the province, in its role of regulator and inspector for Westray Mines, had a fiduciary duty to ensure that the mine was developed and operated safely.

The claim further alleges that this duty was breached and/or that the province acted negligently in:

•providing financial support to the Westray coal mine project;

•certifying and monitoring the qualifications of the personnel working in the mine;

•issuing the mining leases and permits required for the operation of the mine;

•approving and monitoring the mine plans; and

•the regulation of mine safety.

The issue before the Court was whether the respondents who were dependents within the meaning of the act could bring an action for damages arising from the Westray explosion against the province of Nova Scotia. The answer rests on whether the province is an employer under part one of the act.

The province argued that it is an employer under the act by definition. It also stated that it is an employer in a number of industries for which coverage is mandated under the act. It also argued that it had been admitted by the Workers’ Compensation Board as an industry within the scope of part one of the act pursuant to section 6(1).

The respondents argued that the province is not an employer under the act. The respondents disputed the grounds put forward by the province.

To determine if the province was an employer under the act, the Court went through interpretation analysis of section 2(g)(vi) of the act, which reads as follows:

“2. In this act, unless the context otherwise requires,…

(g) “employer” includes…

(vi) the Crown in the Right of Nova Scotia, and in the Right of Canada insofar as it submits to the operation of this act.”

After a lengthy analysis of the legislation provision, the court held that the province is an employer in the act.

In making this decision, the Court held that the phrase “insofar as it submits to the operation of this act” relates to the Crown in Right of Canada and not the Crown in Right of Nova Scotia.

Having held that the province is an employer under the act, the Court held it was not necessary to consider the argument put forward by the province that it is an employer because it is an employer in a number of industries for which coverage is mandated by the act, or the argument that the province’s industry has been admitted by the board as an industry within the scope of part one of the act.

The Court held that the action against the Attorney General of Nova Scotia representing Her Majesty the Queen in the Right of the Province of Nova Scotia be dismissed.

For more information:

Bell v. Canada (Attorney General), 2001 NSSC 112.

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