IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL

IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL Citation: Weir s Construction Limited v. Warford (Estate), 2018 NLCA 5 Date: January 22, 2018 Docket: 201601H0092 BETWEEN: WEIR S CONSTRUCTION LIMITED, BILL WEIR AND JAMES WEIR (JR.) APPELLANTS AND: ROLAND WARFORD (ESTATE OF) RESPONDENT AND: WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION THIRD PARTY Coram: Welsh, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201401G6280 (2016 NLTD(G) 141) Appeal Heard: June 23, 2017 Judgment Rendered: January 22, 2018 Reasons for Judgment by Welsh J.A. Concurred in by White and Hoegg JJ.A. Counsel for the Appellants: Jorge P. Segovia Counsel for the Respondent: John R. Sinnott Q.C. Counsel for the Third Party: Blair Pritchett and Krista Gillam

Page: 2 Welsh J.A.: [1] As a result of a workplace accident in 1995, Roland Warford, now deceased, received workers compensation benefits. The Workplace Health, Safety and Compensation Commission (the Commission ) abandoned a subrogated action against the employer, Weir s Construction Limited, but permitted Mr. Warford to proceed with the action. As authorized by the legislation, an application was made to the Commission to determine whether the action was prohibited by the Workplace Health, Safety and Compensation Act, RSNL 1990, c. W-11. The decision of the Commission that the action was prohibited was set aside on judicial review with a determination that the action could proceed. [2] Weir s Construction appeals that decision. The central issue is the interpretation of the phrase an accident involving the use of a motor vehicle. BACKGROUND [3] On July 5, 1995, Mr. Warford, employed by Weir s Construction as a mechanic, was working on repairs to a large truck. The truck had broken down due to a damaged driveshaft and had been transported to the maintenance building by means of a flatbed. In order to complete the necessary repairs, the truck was placed on four blocks using a front-end loader. The serious injury to Mr. Warford occurred when, while he was working on the repairs, the truck unexpectedly rolled off the blocks, crushing his lower body. Although Mr. Warford received benefits under the Act, there has been litigation over the years regarding whether the Act permits a right of action in the courts against Weir s Construction as a result of the accident. [4] An explanation of the procedures followed by the Commission in assessing the application of the Act to a claim is found in Weir s Construction Ltd. v. Warford, 2003 NLCA 36, 227 Nfld. & P.E.I.R. 48 (the 2003 Warford decision ), at paragraphs 7 and 8. As applied to the issue in this appeal: [8] An application under s. 46 to determine if an action is barred is considered only by an internal review specialist. It is not one of those matters that is assessed by an intake officer, nor one which may be reviewed by a Review Commissioner. If a party is dissatisfied with the decision of the internal review

Page: 3 specialist respecting whether an action is prohibited, the only recourse open is to apply to the Trial Division for judicial review. For convenience, I will refer to the internal review specialist as the Commission. As well, a reference to Weir s Construction includes the company as well as Bill and James Weir, also named as defendants in the claim. ISSUES [5] This appeal requires consideration of the appropriate standard of review and its application to the Commission s decision regarding the meaning of the phrase as a result of an accident involving the use of a motor vehicle by the worker or another person, in the course of the worker s employment in section 44.1(1)(b) of the Act. An additional issue concerns the appropriate role of the Commission when its decision is under review or appeal. ANALYSIS The Legislation [6] Section 44 of the Act limits an employee s right of action against an employer: (1) The right to compensation provided by this Act is instead of rights and rights of action, statutory or otherwise, to which a worker or his or her dependents are entitled against an employer or a worker because of an injury in respect of which compensation is payable or which arises in the course of the worker s employment. (2) A worker, his or her personal representative, his or her dependents or the employer of the worker has no right of action in respect of an injury against an employer or against a worker of that employer unless the injury occurred otherwise than in the conduct of the operations usual in or incidental to the industry carried on by the employer. (3) An action does not lie for the recovery of compensation under this Act and claims for compensation shall be determined by the commission. [7] An exception to the application of section 44 is set out in section 44.1: (1) Section 44 shall not apply where the worker is injured or killed

Page: 4 (a) while being transported in the course of the worker s employment by a mode of transportation in respect of which public liability insurance is required to be carried; or (b) as a result of an accident involving the use of a motor vehicle by the worker or another person, in the course of the worker s employment. (2) In subsection (1) motor vehicle means (a) a motor vehicle (i) registered under the Highway Traffic Act, or (ii) authorized under section 12 or 17 of the Highway Traffic Act to be operated on a highway in the province without being registered under that Act, whether or not it is being operated on a highway; or (b) another vehicle while being operated on a highway in the province and for the purpose of this definition highway means a highway as defined in the Highway Traffic Act. [8] Section 46 of the Act provides for the Commission to determine whether an action is prohibited: Where an action in respect of an injury is brought against an employer or a worker by a worker or his or her dependent, the commission has jurisdiction upon the application of a party to the action to adjudicate and determine whether the action is prohibited by this Act. Standard of Review [9] I agree with the applications judge s conclusion that reasonableness is the appropriate standard of review to be applied to the Commission s decision as to whether the action is barred by the Act. I begin with reference to the discussion of standard of review of a tribunal s decision in Alberta (Information and Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61, [2011] 3 S.C.R. 654. In particular, Rothstein J., for the majority, wrote: [34] [U]nless the situation is exceptional, and we have not seen such a situation since Dunsmuir, the interpretation by the tribunal of its own statute or statutes closely connected to its function, with which it will have particular

Page: 5 familiarity should be presumed to be a question of statutory interpretation subject to deference on judicial review. [10] The question of the appropriate standard of review of a decision of the Commission under the Workplace Health, Safety and Compensation Act has been considered by this Court and the Supreme Court of Canada. The issue in the case now before this Court is analogous to the question considered in Marine Services International Ltd. v. Ryan Estate, 2013 SCC 44, [2013] 3 S.C.R. 53, a decision which considers the operation of the Act, although in a different context: [45] This appeal is from a judicial review of the Commission s decision. The Commission s finding that the injury that led to the death of the Ryan brothers occurred in the conduct of the operations usual in or incidental to the industry carried on by Marine Services is entitled to deference. It is a question of mixed fact and law that the Commission answered by assessing the evidence and interpreting its home statute. Moreover, s. 19 of the [Newfoundland and Labrador Workplace Health, Safety and Compensation Act] contains a privative clause. In light of these factors, the standard of reasonableness applies: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paras. 52-55. (Emphasis added.) [11] I would also refer to the 2003 Warford decision, which pre-dated Dunsmuir, where this Court applied a standard of review of patent unreasonableness. In Dunsmuir, patent unreasonableness was set aside in favour of reasonableness simpliciter. In the Warford decision, Cameron J.A. explained: [35] It cannot be said in this case that the Commission had an advantage over the court in statutory interpretation. Once a broad relative expertise has been established, however, the Court is sometimes prepared to show considerable deference even in cases of highly generalized statutory interpretation where the instrument being interpreted is the tribunal s constituent legislation. All of the factors, including particularly the full privative clause and the general role of the Commission, lead me to conclude that the decision of the internal review specialist (that is, the Commission s decision) must be reviewed to determine whether it was patently unreasonable and that the Trial Division judge, therefore, erred in applying the standard of correctness. [12] The question in the case on appeal requires the Commission to interpret its own statute or statutes closely connected to its function, with which it will have particular familiarity (Alberta Teachers Association, at paragraph 34). Indeed, determining whether an injury is compensable under

Page: 6 the Act and whether that determination precludes an action in the courts is central to the function of the Commission. That function is further endorsed by the clear language of section 46 of the Act which gives the Commission jurisdiction to consider that very issue. Applying the above jurisprudence, it is unnecessary to undertake a detailed Dunsmuir analysis to conclude that reasonableness is the appropriate standard of review (Dunsmuir, at paragraph 57). [13] Having determined that the appropriate standard of review is reasonableness, the question is whether the applications judge erred in his determination that the Commission s decision was unreasonable. [14] Factors to be considered in a reasonableness analysis are set out in Dunsmuir: [47] A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [15] In this case, the applications judge gave a narrow interpretation to the phrase a range of possible acceptable outcomes in assessing whether the decision is defensible in respect of the law and facts. He described the issue as a binary question where there is no room for analyzing whether [the decision] fits within a range of possible acceptable outcomes, because there are only two (paragraph 54). This approach misconstrues the second part of the Dunsmuir analysis which is not concerned with the number of possible outcomes, but with whether an option chosen by the tribunal is reasonable. Where there may be only two options, either option may, in fact, fall within the scope of what is reasonable. The Meaning of An Accident Involving the Use of a Motor Vehicle [16] Pursuant to section 46 of the Act, the Commission determined that the exception in section 44.1, which operates to permit an action, did not apply because, on the facts, Mr. Warford s injury was not the result of an accident involving the use of a motor vehicle by the worker or another person, in the course of the worker s employment.

Page: 7 [17] The Commission began the analysis with the purpose of the relevant statutory provisions (page 11): Sections 44 through 46 of the Act reflect what is referred to as the historic tradeoff. In return for a secure, no-fault system of compensation, injured workers lost the right to commence actions against another worker or an employer for injuries covered by the compensation scheme. Instead, guaranteed payment is ensured to workers when they incur injuries arising out of and in the course of employment. This also provides protection to the employer in that by paying premiums to the compensation system they are afforded protection from litigation so as to not pay twice for protection. The legislation provides certain exceptions to that principle. The exceptions are found under Section 44.1 of the Act. [18] The Commission referenced three earlier Warford decisions for the purpose of avoiding similar pitfalls, followed by a detailed review of case law with comments on the guidance or assistance to be derived from each, particularly regarding principles of statutory interpretation, the use of extrinsic evidence, and legislative intention. Finally, the Commission explained, at page 27: [The Canadian Oxford dictionary] definition does not include repair or maintenance. The provincial legislature did not specifically state what was meant by use. With regard to section 44.1(1)(b), it is clear they did not include such words as operation, repair, or maintenance of a motor vehicle. Therefore, it is a reasonable conclusion that use does not include same but refers to the purpose of a motor vehicle and that the purpose is being fulfilled. I have given consideration to insurance law cases which discuss that use of a motor vehicle includes repairs, maintenance, etc. I find it is important to consider other legislation such as the Highway Traffic Act and the Judgment Recovery (NFLD) Limited Act which are both provincial statutes. In reviewing these provincial statutes it is clear there was a distinction made by the legislature in each of the statutes particularly to motor vehicles. Therefore, I find it more appropriate to follow the provincial legislature rather than how insurance law defines use of a motor vehicle. [19] Based on the dictionary definition and the language used in other statutes, the Commission chose to accept the narrower meaning of use, which does not include repair, and to distinguish and reject the broader meaning of use adopted in insurance cases. [20] The Commission addressed the involvement of the flatbed and the front-end loader in transferring the truck onto blocks, concluding that once their functions had been fulfilled, their relationship to the accident had been severed. The conclusion followed that Mr. Warford was not injured as a

Page: 8 result of an accident involving the use of the flatbed or the front-end loader. (This issue is discussed further, below.) [21] Regarding the truck that rolled off the blocks, at page 28: With respect to the truck, the purpose of same would be to transport tractortrailers from one point to another. The circumstances of the case show the truck was not able to maneuver under its own power. It was in a state of disrepair. The truck s driveshaft and air tanks had been damaged. It was unable to maneuver on its own as it was up on blocks. The truck was not able to be used while being repaired. It was unavailable for use therefore unable to fulfill its purpose. [Mr. Warford] was carrying out his normal duties of repairing the vehicle, and from my view, I am satisfied this activity does not constitute use of a motor vehicle. Therefore, with particular reference to the truck, I find the facts of the case support [the conclusion that] the worker was not injured as a result of an accident involving the use of a motor vehicle. [22] The Commission concluded, at pages 28 and 29: On the date of the accident, Mr. Warford was completing repairs to the truck. When applying an air impact gun to commence repairs the truck rolled off its blocks falling upon Mr. Warford causing his injuries. The truck had been placed upon blocks so that the repairs could be carried out. Two other motor vehicles, namely the flatbed and front-end loader, had assisted in the process of placing the truck in the garage. However, I find that any connection of these two motor vehicles to the accident in question had been severed. I find their purpose or use had been fulfilled. With regard to the truck, it was in a state of disrepair and not able to fulfill its purpose. I find repairs/maintenance do not constitute use of a motor vehicle. Therefore, I find [Mr. Warford] was not injured through the use of a truck. From my view of this case, I find Mr. Warford s injuries arose out of and in the course of employment and did not involve the use of a motor vehicle by the worker or another person in the course of his employment. I find the exception to the statutory bar [section 44.1(1)(b) of the Act] does not apply. The action commenced by [Mr. Warford] against [Weir s Construction] is statute barred. [23] On review, the applications judge determined that the Commission s decision was unreasonable and that the only reasonable determination is that this accident did involve the use of a motor vehicle, and therefore is captured by the exemption to the statutory ban in section 44.1(1)(b) (2016 NLTD(G) 141, at paragraph 157). [24] The applications judge expressed concern that the Commission failed to recognize the plain meaning of the language in section 44.1(1)(b):

Page: 9 [73] The plain meaning of the words in the section were ignored in favour of a speculative determination that the purpose of the section relied on the requirement for insurance. That finding, while not determinative in itself, in my view coloured his further analysis of the meaning of use when he examined that issue. [25] Care must be exercised in relying on the plain meaning of legislative language. In Allen v. Workplace Health, Safety and Compensation Review Division, 2014 NLCA 42, 357 Nfld. & P.E.I.R. 1, Barry J.A., for the majority, emphasized: [47] The modern approach is to accept that all language may prove ambiguous, words must be read in their entire context and in their grammatical and ordinary sense, harmoniously with the purpose of the legislation. A reference to plain language or plain meaning is not helpful. The only proper approach is to maintain a focus upon the language of the text in the context of the various factors emphasized by the modern principle. [26] Having determined the meaning of use in the context of the legislation, the Commission first considered the use of the flatbed and frontend loader concluding that they were not relevant because those machines had completed their purpose (pages 27 to 28): With respect to the flatbed, it is indicated in the Statement of Claim that this motor vehicle transported the truck from Bay Roberts to the yard on the Manuals Access Road. The purpose of a flatbed is to transport objects from one point to another. On the morning of July 5, 1995 the truck was removed from the flatbed by the front-end loader, another motor vehicle. I find this supports that once the truck was removed from the flatbed, the purpose or use of the flatbed had been fulfilled. The flatbed was no longer a part of the equation and therefore a relationship to the accident was severed. With respect to the front-end loader, this motor vehicle maneuvered the truck from the flatbed into the garage so that repairs could be commenced. The frontend loader used chains and lifted the truck, one end at a time, so that blocks could be placed under same. Typically, the use of a front-end loader is for construction. However, in this instance, it was being used for a different purpose. However, that being said, once the truck was placed up onto blocks by the use of the front-end loader, its connection to the accident had been severed. The purpose of the front-end loader had been fulfilled. [27] In rejecting these conclusions, the applications judge focused, not on the meaning of the phrase use of a motor vehicle, but on the concept of

causation in the law of negligence. Regarding the flatbed, the judge explained: Page: 10 [78] This notion of the relationship being severed is a conclusory statement made without reference to any rationale set out in the case law dealing with negligence and the chain of causation. Perhaps this was the right decision, but without a rationale as to why, we can never know, and this makes this decision unreasonable. [81] Again, the [Commission] has drawn a conclusion about the role of the front-end loader. Even though [the Commission] seems to accept that the use of the front-end loader contributed to the accident, [the Commission] rejects its role in the chain of causation without any rationale. Moreover, by [the Commission s] reference to the additional negligence of failure to warn that the brakes were disengaged, [the Commission] has usurped the role of the court in assessing the evidence at trial to determine whether negligence should be attributed to one or several parties, or among various events within the chain of causation. In the absence of a rationale or explanation, this conclusion was unreasonable. It may also have been incorrect, but we cannot know, because no rationale was provided. [28] These determinations by the applications judge are based on a different analytical process than was used by the Commission. The Commission first determined the meaning of use and then applied it when deciding whether the flatbed and front-end loader were relevant to the application of section 44.1(1)(b) of the Act. Rather than analyzing the reasonableness of the Commission s approach, the judge focused on a possible chain of causation in negligence which, using the Commission s analysis, would be relevant only if it was first determined, based on the meaning of use, that an action in negligence was not barred by the operation of sections 44 and 44.1(1)(b). In the result, the judge erred in analyzing the reasonableness of the Commission s approach and decision. [29] Reviewing the Commission s decision, I am satisfied that sufficient, transparent and intelligible reasons were given for determining that the involvement of the flatbed and front-end loader were irrelevant in assessing whether Mr. Warford s injury was the result of an accident involving the use of a motor vehicle. The Commission s conclusion regarding the flatbed and front-end loader is reasonable as it falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

Page: 11 [30] The applications judge also commented on the failure of employees to warn Mr. Warford that the brakes had been disengaged when the truck was being transported: [89] It is not reasonable to conclude that the failure to warn of the disengagement of the brakes, or the completion of the task by the front-end loader, were events so disconnected from the overall series of events, and were of such an impact to obliterate [Weir s Construction s] wrong. The reasonable conclusion would have considered these events as part of an overall set of circumstances which a court could consider as contributing to the injury. [31] This comment demonstrates the error of the applications judge in focusing on a possible action in negligence, rather than on whether the Act permits an action to proceed. It is important to keep sight of the purpose of the Act to provide a no-fault insurance scheme. Questions of fault and responsibility for a wrong, including negligence, do not arise unless it is first determined that an action is permitted. [32] The applications judge comments throughout his decision that the Commission failed to provide adequate reasons. The question of adequacy of reasons is discussed in Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. Abella J., for the Court, emphasized that the tribunal s reasons must be considered as a whole and that deference to the tribunal s decisionmaking requires a respectful attention to the reasons offered or which could be offered in support of a decision, including supplementing the reasons (paragraph 12). Abella J. continued: [16] Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under the reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion. In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [33] In this case, the applications judge erred by failing to apply these principles. The judge dismissed the Commission s use of other statutes and the dictionary definition as not helpful (paragraph 104). He was not satisfied that the Commission dealt sufficiently with the case law, considering it was unreasonable for [the Commission] to provide no

Page: 12 explanation as to why these cases were not applicable in these circumstances (paragraph 101). [34] That analysis fails to recognize that the Commission reviewed case law, referred to a dictionary meaning of use, compared the language in the Act with that in other statutes, and summarized the conclusions drawn from all those sources. A review of the decision leads to the conclusion that, in the words of Abella J., the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes. [35] Finally, the applications judge questioned the Commission s reference to the potential availability of other sources of funds, such as insurance, as the purpose for the section 44.1(1)(b) exception to the general bar to an action under the Act. A reading of the Commission s decision as a whole leads to the conclusion that this factor was just one consideration when viewed in light of all the factors taken into account in determining that, in fact, the Commission was responsible to provide benefits to Mr. Warford and that the Act precluded recourse to a claim in the courts. Indeed, the applications judge recognized that the Commission s finding on this point was not determinative, though the judge found that it coloured [the Commission s] further analysis (paragraph 73). [36] In summary, the applications judge erred in his assessment of the reasonableness of the Commission s decision and in his determination that the decision was unreasonable. The Commission canvassed appropriate authority, considered relevant factors, including the language of the legislation and the statutory context and purpose, gave reasons, and adopted a meaning of as a result of an accident involving the use of a motor vehicle that falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir, at paragraph 47). Role of the Commission on an Appeal [37] Mr. Warford submitted before the applications judge that Commission counsel went beyond what has been accepted as the appropriate role for a tribunal under review before a superior court (decision of the applications judge, at paragraph 122). The judge wrote: [139] I raised the question of the role of counsel during this hearing, because it appeared to me that the Commission was presenting in support of one of the parties. While I do not think it was deliberate, I do think it raises the prospect that

Page: 13 in taking one side over the other in this hearing, and in the previous hearing before Justice Adams, there would be a reasonable apprehension that the Commission would not be neutral in a subsequent hearing. [38] The potential role of a tribunal in a review of its decision is discussed in Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147. Rothstein J., for the majority, summarized his review of the relevant principles: [59] In accordance with the foregoing discussion of tribunal standing, where the statute does not clearly resolve the issue, the reviewing court must rely on its discretion to define the tribunal s role on appeal. While not exhaustive, I would find the following factors, identified by the courts and academic commentators cited above, are relevant in informing the court s exercise of this discretion. (1) If an appeal or review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing. (2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important in ensuring just outcomes. (3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [39] Principles underlying these factors, discussed by Rothstein J., include balancing the importance of having a fully informed adjudication of the issues before the court with the importance of maintaining tribunal impartiality (paragraph 48). Reference is also made to the principles of finality and impartiality. Finality refers to the principle whereby a tribunal may not speak on a matter again once it has decided upon it and provided reasons for its decision (paragraph 49). Impartiality arises where the matter may be remitted to the tribunal for further consideration. [40] In the case of the Commission, in the past, its role on review or appeal has been restricted to providing the court with an explanation regarding such matters as its process or procedures, as for example, in the 2003 decision of this Court (paragraph 4, above). This limited role is exceeded where the

Page: 14 Commission takes a position on review in favour of upholding its decision. The second and third factors referenced by Rothstein J., above, are engaged. That is, in this appeal, the parties have the necessary knowledge and expertise to make and respond to arguments challenging the reasonableness of the Commission s decision. Further, the review and appeal involve the Commission in the merits of an adjudication of the rights of adversarial parties, with the potential for remittal of the matter to the Commission for further consideration. [41] In these circumstances, the judicial exercise of discretion properly restricts the role of the Commission from making submissions directed to upholding its decision and acting as an adversarial party to the proceeding. I would emphasize that, as part of the reasons for a decision, the Commission should include any policy-related considerations that have been taken into account. This will enable the parties and the courts to understand the relevant underlying rationale for the decision. This approach would preclude the necessity of the Commission participating in the merits of an application for judicial review or an appeal. In the circumstances of this case, the applications judge was correct to observe that the Commission exceeded its proper role. SUMMARY AND DISPOSITION [42] Reasonableness is the appropriate standard of review of the Commission s decision. However, in applying that standard, the applications judge erred in his assessment of the reasonableness of the Commission s decision and in his determination that the decision was unreasonable. [43] The Commission canvassed appropriate authority, considered relevant factors, including the language of the legislation and the statutory context and purpose, gave reasons, and adopted a meaning of as a result of an accident involving the use of a motor vehicle that falls within a range of possible, acceptable outcomes defensible in respect of the facts and the law. The result is that the Act bars an action in court by Mr. Warford. [44] Finally, the Commission is properly restricted from making submissions directed to upholding its decision and acting as an adversarial party to the proceedings. In the absence of special circumstances, its role should be limited to providing the court with an explanation regarding such matters as its process or procedures.

Page: 15 [45] In the result, I would allow the appeal. I would make no order as to costs in this Court and in the Court appealed from given the fact that Mr. Warford s challenge to the Commission s interpretation of section 44.1(1)(b) is of general application which will be of assistance to future claimants for compensation under the Act. B. G. Welsh J.A. I Concur: C. W. White J.A. I Concur: L. R. Hoegg J.A.