In the month of August, the Saskatchewan Workers’ Compensation Board (WCB) will be reaching out to customers across the province to gather feedback to help improve WCB services.
The information provided by customers will be vital in improving the WCB’s services over the short and long term. As customers experience these services from a different perspective, we will be seeking input from injured workers and employers at all touchpoints of their experience with us.
This information will be used in the development of a customer feedback system that will help us in the future to gather feedback at the most critical points of the customer journey. We will be asking customers about their preferred feedback methods. This information will be used to inform changes to how the WCB gathers feedback from our customers. Customer feedback is essential in our ability to be able to improve our services for our customers.
A survey was sent out to customers via email on Aug. 3, 2021. This email will come from the askwcb@wcbsask.com email account.
Please be aware that the WCB will never ask for personal information such as a claim number, bank information, payment status, SIN or any other personal identification or financial information when conducting customer research.
If you have any questions about whether or not an email or call was legitimate, please do not hesitate to contact the WCB at askwcb@wcbsask.com or 800-667-7590.
The inaugural meeting of the Women in Construction – TEC Group was held in May to great success. The second meeting for the group is scheduled for late-August; contact the SHCA office for details on how to participate!
Respecting the safety of workers building and maintaining Saskatchewan roads means following the posted speed limits in construction zones.
Shantel Lipp, president of the Saskatchewan Heavy Construction Association, partnered with SGI’s Tyler McMurchy and Staff Sgt. Patrick Barbar of the Saskatoon Police Service to remind drivers of that in a recent video.
They explain what happens in a construction zone, why that requires slower driving as well as how their organizations collaborate to encourage and enforce safe driving on roads built by members of the Saskatchewan Heavy Construction Association.
SHCA members, please share the video across your social networks to get the word out!
Road building depends on heavy equipment being run by competent operators, so making sure more people are choosing to become qualified operators is essential if the industry is to stay strong. As experienced operators get to a retirement age, it is important to ensure younger people looking at their future consider operating heavy equipment and have an opportunity to gain the skills and insight to choose that as their career.
“Experienced operators [comprise] the biggest position we need to fill right now,” said Shantel Lipp, president of the Saskatchewan Heavy Construction Association (SHCA).
In past decades, employers hired young people, particularly those who may have operated farm machinery, and gave them an opportunity to learn on their equipment, developing the experience necessary to become qualified operators. Now, employers need to hire someone already qualified to work on their projects. That’s where training programs, such as one newly offered at Southeast College, become important – for job seekers as well as employers in heavy construction.
Students practice on the simulators at Southeast College. Photo: Southeast College
In years past, Southeast College offered a program developed by Saskatchewan Polytechnic, which was its partner brokering institution. However, Saskatchewan Polytechnic discontinued that program. “But there was a huge demand for it,” said Lipp, who explained that a program such as this is expensive to offer because of the cost to rent the equipment for students to gain hands-on experience, which was important for them to be employment ready.
Those at Southeast College recognized the demand in the industry for those with these skills as well as from people wanting to gain them. Southeast College worked with the Assiniboine Community College in Brandon, Man. to offer its program, but adapting that one for students at Southeast College took a significant amount of work. That’s when SHCA was approached about developing an industry-accredited program.
“We sat at the table with [SHCA] members to build a new, better and greater program by learning from them about what is needed,” said Jody Holzmiller, the vice president of education and training at Southeast College. Not all at the table thought that simply training students to be a competent operator was enough, however. “There were also some other pieces of the training that were missing, such as life skills and job readiness,” said Holzmiller.
Photo: Southeast College
That includes making sure students recognize that the projects they work on could be far from where they live, requiring them to relocate temporarily. The season to work on these projects is short, so the days can be long. Given the short season, anyone becoming an equipment operator has to be prepared for not having available work in heavy construction during the winter months. “It’s important that students understand what the job is,” said Lipp.
To accommodate everything necessary to prepare students sufficiently for employment, Southeast College extended the program to 12 weeks and included a week of safety training. During their 12 weeks, students spend six weeks in a classroom at the Southeast College Estevan Campus, learning theory and using simulators, which include a grader, excavator, front end loader, rubber tire hoe, articulated truck and dozer. “We’ve had rave reviews about the simulators,” said Holzmiller. “The supplier sent a simulator for demo purposes, at which time we invited industry in to give it a try. One word keeps being used to describe them: ‘wow!’”
Another six weeks is done in the field, gaining experience by working on the equipment. The first cohort of students – a group of five – started their field work in early June on a project in the Estevan area. As they moved out of the classroom, another cohort started their theory learning.
“We sat at the table with [SHCA] members to build a new, better and greater program by learning from them about what is needed.”
– Jody Holzmiller, Southeast College
Being in the field gaining in-the-seat experience is a crucial part of the training process. That time is being spent productively as students have the opportunity to work on small projects that municipalities need completed.
Lee Finishen is chair of the South Central Transportation Planning Committee (SCTPC) and a councillor on Fort Qu’Appelle’s town council. He had been thinking about how to complete a project in his area. Fort Qu’Appelle and the surrounding area needed to develop a new cell at the regional landfill authority that Finishen formerly chaired. The project was to dig a pit with an engineered slope. That gave Finishen an idea. “There is an opportunity there for students. It’s not overly complicated for in-the-seat training jobs,” he said.
He approached Lipp about the idea of having students work on such projects, knowing from his experience as a member of the board of directors for the Municipalities of Saskatchewan (formerly the Saskatchewan Urban Municipalities Association) that, for example, many municipalities have short stretches of road building to be done to handle heavier traffic going in and out of new developments. “It’s a win-win-win. Students get the training they need, Saskatchewan heavy construction gets to see more operators gain experience and municipalities get more projects completed,” said Finishen.
During program development, it was important based on industry consultations that Southeast College prepare students for more than simply operating heavy equipment, and so the program includes informing students about the realities of working in the heavy construction industry, such as the possibility of temporary relocation and not having jobs available throughout the winter. Photo: Southeast College
The students who work on the project are hired temporarily as employees of the municipality that needs their work. Finishen explains this provides the students coverage under the Saskatchewan Workers’ Compensation Board (WCB) as well as ensures liabilities are covered. The students gain a reference and connections to find work once they receive their certificate of completion. “We are so fortunate to be so closely tied to SHCA,” said Holzmiller.
Photo: Southeast College
Finishen is looking for projects to be nominated in the SCTPC area, which covers an area from Lumsden thru the Qu’Appelle Valley as far east as Wolseley, south to the U.S. border near Torquay and west to Rockglen. The types of projects the students can work on are short-term ones that Finishen says might not qualify for grants. There is not time to put the project to tender and larger organizations may not be interested in mobilizing as quickly as needed to take on a project that small in size. The projects are to be engineered so students learn how to work within the parameters.
Finishen is promoting the program’s students for municipal projects as often as he can. He will be talking to other chairs of the 11 transportation planning committees in Saskatchewan as well as representatives of the Municipalities of Saskatchewan and the Saskatchewan Association of Rural Municipalities (SARM) so that all municipalities – urban and rural – are aware of the opportunity.
Seeing this program offered at other institutions so it is available across the province is something Finishen would like to see happen. The program is currently open to anyone living in the province who meets the admission requirements. Applicants need their Grade 10 or equivalent, must meet an English language requirement, possess a valid Class 5 license and be 18 years old at time they apply or within six months of the program’s end. Tuition costs $11,500. A total of three cohorts will go through the program this year, with the third cohort beginning intake on July 19. Each cohort can have up to eight people.
Brandt announces plan to create 1,000-plus new jobs
The Brandt Group of Companies recently announced plans to make a major investment in staffing and will hire more than 1,000 new employees by the end of 2021. The new positions will span the Regina-based company’s 100+ location international network, focusing on roles in Canada and the USA.
“There’s no question that our people are the foundation of our success. In spite of some challenging times for the global economy, an incredible team effort has enabled us to sustain our business and weather the storm successfully,” said Shaun Semple, Brandt Group of Companies CEO. “Looking ahead, the growth trend for Brandt is strong, so the timing is ideal to make a major investment in our team.”
In the past 10 years, Brandt has expanded their employee base by 140 per cent to more than 3,400, with the pace of growth continuing to accelerate steadily. The newly announced hiring initiative will see the company’s workforce grow by 30 per cent overall with the largest individual gains occurring in the company’s Regina, Saskatoon and Hudson, Ill. locations. Half of these hires will occur in the company›s Saskatchewan locations with 40 per cent more spread out across Canada and the balance in the USA.
The new hires will bolster Brandt’s existing operations in industries from construction, forestry and agriculture to rail, mining and steel. The positions will include skilled trades, sales, finance, marketing, customer support, IT and more as the company expands its support team to meet the needs of a rapidly growing customer base.
“As life begins to return to normal and we look ahead to economic recovery, this is very exciting news for workers and their families,” said Scott Moe, Saskatchewan Premier. “Saskatchewan has what the world needs, and Brandt’s success is a testament to the resiliency of our province’s industries in some of the most challenging global economic times.”
Interested applicants can view a current listing of the company’s career opportunities and apply online at www.brandtjobs.com.
“Saskatchewan has what the world needs, and Brandt’s success is a testament to the resiliency of our province’s industries in some of the most challenging global economic times.”
Scott Moe, Saskatchewan Premier
Focus on passing lanes saving lives in Saskatchewan
Work is progressing on a number of new passing lane projects as part of the Government of Saskatchewan’s plan to construct 30 sets of passing lanes over the next two years. This builds on the 27 sets constructed in the last four years.
Construction is currently underway on two sets of passing lanes on Highway 2 north of Prince Albert and the last of 13 sets of passing lanes on Highway 39 between Milestone and the U.S. border. All are expected to be complete by late fall of 2021.
“Safety is the primary concern of the Ministry of Highways,” said Highways Minister Fred Bradshaw. “Passing lanes have proven a reliable way to improve safety on a number of highways, with plenty more to come.”
The 2020 Fall Tender Plan and the 2021 Spring Tender Plan include passing lane projects on:
Highway 3 west of Prince Albert;
Highway 5 east of Saskatoon;
Highway 7 west of Kindersley;
Highway 12 north of Martensville;
Highway 14 west of Saskatoon to Asquith;
Highway 16 west of Yorkton to Springside; and
Highway 16 east of Clavet to Highway 6 junction.
Passing lanes are typically a minimum two kilometres in length and are strategically designed to allow vehicles to safely pass slow moving vehicles and heavy trucks such as semi-trailer units. Studies have shown passing lanes can reduce collisions by as much as 25 per cent. Highway 10, the province’s first major passing lanes pilot project, has seen 75 per cent fewer fatal accidents from before the project to five years after its completion.
“The passing lanes have ensured there are far fewer vehicle accidents, fatal crashes and injuries, allowing for safer travel and reduced emotional impacts on first responders who arrive at crash scenes,” said Balgonie Volunteer Fire Department chief Dave Campbell. “Combined with the reduced travel time, the passing lanes have been a significant benefit to local residents and visitors alike.”
The Government of Saskatchewan will be improving more than 1,350 km of provincial highways this year, the second of its 10-year Growth Plan goal to build and upgrade 10,000 km of highways. With this year’s projects, the province is ahead of the pace needed to meet this target. There will be $300 million in additional highways stimulus funds that will be invested over several years in thin-membrane surface upgrades, passing lanes and improvements to municipal roads and airports.
The Government of Saskatchewan has invested more than $10.6 billion in highways infrastructure since 2008, improving more than 17,100 km of Saskatchewan highways.
Saskatchewan opens up access to rapid antigen tests
According to the Saskatchewan Health Authority, the best way to protect yourself and others is to get vaccinated. Photo: milkos/123RF
Rapid antigen tests may now be used by Saskatchewan businesses and individuals to help screen people who do not show COVID-19 symptoms. The province has amended The Medical Laboratory Licensing Regulations, 1995 so that a formal agreement is no longer required between those who use rapid antigen tests and the Saskatchewan Health Authority (SHA).
“Our government is committed to improving access to health care services for people across the province, and providing the necessary tools to address the pandemic,” said Health Minister Paul Merriman. “This step means that businesses and individuals can easily procure and use these tests, helping asymptomatic people who have COVID-19 receive testing and treatment more quickly. Ultimately, the best way to protect yourself and those around you is to get vaccinated.”
Rapid antigen tests are not a diagnostic test, but are used to screen asymptomatic people for COVID-19. Health officials strongly recommend that people who receive a positive test result immediately self-isolate and call 811 for further instructions, such as scheduling a confirmatory test through a SHA testing centre.
“The SHA’s Test to Protect program is an important element of a multi-layered approach that we have added to our pandemic response along with vaccination,” said SHA testing chief Carrie Dornstauder. “The Test to Protect community rapid antigen testing program provides workplaces with early detection of COVID-19, ensuring a strong and healthy workplace and workforce through outbreak prevention.”
Large national businesses that operate in Saskatchewan and wish to use the tests can request them through the federal government’s online business portal at .
Small and medium-sized enterprises within Saskatchewan can apply for rapid tests from the SHA by submitting an Intake Form available at www.saskatchewan.ca/covid19 (search for Rapid Testing). Tests will be provided for workplace screening as supplies allow, however Saskatchewan’s federal allocation of rapid antigen tests will be prioritized for health care professionals and priority settings such as long-term care facilities, personal care homes, schools, group homes and shelters.
The general public will be able to purchase the tests from retailers who wish to offer them. Check first to ensure the tests are Health Canada-approved by viewing the list at www.canada.ca/en/health-canada/services/drugs-health-products/covid19-industry/medical-devices/authorized/list.html.
General information on rapid antigen testing is available at www.saskatchewan.ca/government/health-care-administration-and-provider-resources/treatment-procedures-and-guidelines/emerging-public-health-issues/2019-novel-coronavirus/testing-information/rapid-testing.
New Construction Codes Act coming to Saskatchewan
blaze986/123RF
The Government of Saskatchewan recently passed The Construction Codes Act (Bill 4) in the Legislative Assembly. The new Act will allow better alignment between construction codes and accessibility standards, including how they are applied to buildings, ensuring people with disabilities can better access and use buildings in Saskatchewan.
The new Construction Codes Act (CCA) repeals and replaces The Uniform Building and Accessibility Standards Act and will come into effect on Jan. 1, 2022, and will continue to oversee how construction standards are developed, adopted and implemented in the province. The CCA also modernizes the powers and responsibilities for building owners, local authorities, building officials and the construction industry.
“I thank those municipalities and industry stakeholders who provided input into this process resulting in this new legislation,” said Don McMorris, Government Relations Minister. “By improving the roles and responsibilities of each group, the new act will allow the Government of Saskatchewan and these groups to protect citizens from unsafe renovations and construction practices, promote building accessibility and ensure consistent application of construction codes across our province.”
Key changes in the CCA that will impact stakeholders include:
Local authorities can register an interest on a building title for unresolved building official orders. This will allow potential purchasers to make an informed decision about a building before buying it.
Local authorities have the choice to develop their own building bylaws or use a default building bylaw to be prescribed in regulation.
Allows for regional co-operation between local authorities to administer and enforce construction standards across multiple jurisdictions.
Local authorities can request the Ministry of Government Relations to assist them during a province-wide or local emergency by appointing officials, issuing building permits and authorizing building renovations as necessary to support the emergency response.
The Minister of Government Relations can make binding interpretations on construction codes to address Saskatchewan-specific concerns.
This new legislation also supports the reduction of government red tape, as identified in Saskatchewan’s Growth Plan.
“The CCA allows Saskatchewan’s Construction Standards Appeal Board to make binding pre-rulings to individual buildings when the code is being interpreted differently between the building owner, local authority, designer and contractor,” said McMorris. “This will help designers and builders obtain design decisions in a timely manner and ensure they are in compliance with Saskatchewan’s legislative requirements.”
Saskatchewan Polytechnic continues to demonstrate leadership in providing culturally inclusive learning environments and opportunities. The Indigenous Leadership Skills Applied Certificate will share valuable Indigenous leadership approaches towards maintaining resiliency and building leadership capacity.
Situated on Treaty 4 and Treaty 6 territories, and homeland of the Métis people, Saskatchewan Polytechnic is acting on its strategic plan for 2020–2025, Leading the Rise, by holistically integrating Indigenous ways of knowing, being, teaching and learning throughout all institutional practices, procedures and services. The launch of the Indigenous Leadership Skills applied certificate is part of this work.
“Customized programs, like the Indigenous Leadership Skills program, allow for increased participation through workplaces as professional development opportunities.”
– Paul Carter, dean for the School of Continuing Education
“To prepare learners for success in the communities and economies of today and in the future, the new Indigenous Leadership Skills program builds business leadership skills based on Indigenous ways of knowing. This specialized, unique program examines historical and contemporary models of Indigenous business, entrepreneurship and economic development,” said Dr. Larry Rosia, Saskatchewan Polytechnic president and CEO.
“At the Aboriginal Apprenticeship Board of Ontario, we see the Indigenous Leadership Skills program as a vital piece in the efforts to engage Indigenous people into careers in the skilled trades. A sense of understanding of our own Indigenous history, culture, stories and resilience is crucial to empowering the individual in their career journey,” said Danny Deleary, Aboriginal Apprenticeship Board of Ontario, community engagement coordinator. Indigenous Leadership Skills is an applied certificate designed to be leveraged by industry to broaden specialized, culturally relevant leadership skills within their workforce or by individuals preparing for their next career move or entrepreneurial venture.
Using real life case studies focused on exceptional Indigenous leaders, in an interactive format with fellow learners and instructors, the applied certificate is entirely online to maximize accessibility and flexibility for industry and learners. The program includes eight courses that will take about 240 hours to complete. Six of the courses explore standard leadership skills, while two delve deeper into traditional Indigenous leadership and approaches to business-building. Course materials and teaching methods align with Indigenous values, providing a safe, culturally relevant environment for learning.
“Customized programs, like the Indigenous Leadership Skills program, allow for increased participation through workplaces as professional development opportunities. They also provide opportunity for lifelong learning through relevant curriculum which can be successfully completed in a shorter period of time,” said Paul Carter, dean for the School of Continuing Education.
Slow down to keep Saskatchewan highways safe
modfos/123RF
With construction season in full swing, the Government of Saskatchewan is reminding motorists to keep an eye out for construction zones on provincial highways.
“We view everything through the lens of safety at the Ministry of Highways, making sure that our work crews and contractors have a plan in place to keep every job site as safe as possible,” said Highways Minister Fred Bradshaw. “We need drivers to remember they have a role to play as well: plan your route ahead of time, pay close attention and slow down for everyone’s safety.”
Drivers must obey all signs and flag persons in work zones and slow to 60 km/hr. In some cases, work zones have temporary speed reductions left in place when workers are not present. This is often due to potential hazards present, such as lane closures, loose gravel, fresh oil and sharp pavement drop-offs.
“When the pandemic hit, our members continued to work safely building the province’s vital transportation corridors and also stimulating the local economy of many small towns that lost their tourism revenues,” said Shantel Lipp, president of the Saskatchewan Heavy Construction Association. “Now that the province is reopening, we ask drivers to respect those mothers, fathers, sons, daughters, sisters and brothers while they resume their summer.
Our members work to keep you safe while you travel to your next destination, so please obey the signs, don’t speed and pay attention to your surroundings while inside our workplace.”
Speed fines are tripled in Saskatchewan when workers are present. Fines start at $210 and increase by $3 for every km/hr over the speed limit, up to a speed of 90 km/hr, and $6 for every km/hr over 90. A driver who speeds through a work zone at 100 km/hr will be issued a fine of $450, plus a victim surcharge of $80, for a total of $530.
Working from home: A silver lining to the COVID-19 pandemic?
Thanks to COVID-19, the landscape of work has forever changed. Unfortunately, employers had to make a quick decision regarding how to keep their employees working throughout the pandemic. What was once thought impossible for many employers became a reality and it changed how we view the traditional sense of the working environment. We used to think that to go to work, one had to go to a physical location with bricks and mortar. For most of us, the pandemic meant we were working from home. One thing the pandemic has taught us is that the definition of “work” must change. The landscape of work was already slowly starting to change. For some employers, this meant an immediate transition to working from home. Once what was thought unimaginable was now suddenly the norm for most employers and employees. For employers with an injured worker, the pandemic gave support to what employers have long been lobbying for, which was that an injured worker could work from home.
In the past, the Saskatchewan Workers’ Compensation Board (WCB) was less than enthused about employers offering their injured employee a “work from home” option. The WCB thought that this was a cover up for employers to skirt their obligation of return to work. The way of thinking in the past was that a worker working from home could not possibly do meaningful work from home; well, the pandemic has shown us otherwise!
Photo: Vadim Guzhva/123RF
For many employers, having an injured employee work from home was a great option, especially if the injured worker’s restrictions excluded them from many jobs in the workplace.
The WCB Act, 2013 states, “An employer must have a return to work program.” Returning an employee back to work can sometimes be challenging, especially for smaller employers. For many employers, having an injured employee work from home was a great option, especially if the injured worker’s restrictions excluded them from many jobs in the workplace. Quite often, working from home allows employees more flexibility to take frequent rest breaks but still allows them to be engaged in the workplace and make a valuable contribution to their employer. I think WCB needs to change their definition of what return to work should look like and recognize that working from home is a great option. The pandemic has taught us that working from home is a real option, as many of us had to work from home since March of last year. WBC itself had its employees working from home.
Having an injured worker working from home may not work for all employers, but it is another option for employers. The possibilities are endless when having someone working from home. There is a lot of choice out there for online safety modules and classes on various topics. The safety associations in Saskatchewan are also a good choice for options for training in person and online. Employees can upgrade their safety qualifications online, and there are many options for this, as well. MSDS sheets are available online for updates.
Zoom, Webex and Microsoft Teams make it possible to attend work meetings via video and connect with the workplace. Technology is a fabulous way to help workers stay connected to the workplace. It is so important to keep employees engaged as it helps with the transition back into the workplace. Studies have shown the longer an employee is away from the workplace, the less likely they are to return. It is so important to have flexible work options to help lessen the burden of work injuries while enabling employees to remain connected to the workplace. COVID-19 has taught us that working from home is possible and it may have forever changed the landscape of the work environment.
Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District, 2021 SCC 7
The Supreme Court of Canada (SCC) released its decision in Wastech Services Ltd. v. Greater Vancouver Sewerage and Drainage District1 (“Wastech Decision”) on Feb. 5, 2021. The Wastech Decision was heard together with the case of C.M. Callow Inc. v. Zollinger2, and both are important elaborations on the manifestations of the organizing principle of good faith in contract enunciated in the SCC’s seminal decision of Bhasin v. Hrynew3. In particular, the court in the Wastech Decision was tasked with clarifying the basis and scope of the common law duty to exercise contractual discretion in good faith and the applicable standard against which to determine breaches.
Photo: Dmitrii Shironosov/123RF
Facts
The Appellant, Wastech Services Ltd. (“Wastech”), a British Columbia waste transportation and disposal company, was party to a long-term service contract with the Respondent, the Greater Vancouver Sewerage and Drainage District (“Metro”). Metro is a statutory corporation responsible for administering waste disposal throughout the Metro Vancouver Regional District4.
The contract between Wastech and Metro concerned the allocation, transportation and disposal of waste in the Vancouver region to three disposal facilities: the Vancouver Landfill, the Burnaby Waste to Energy Facility and the Cache Creek Landfill5. Wastech earned a rate premium on transport to Cache Creek, as it was relatively further away6; however, Metro was conferred “absolute discretion” to determine the amount of waste disposed at the Cache Creek site each year7. Wastech’s annual compensation was “structured around” a target operating ratio of 0.89, meaning Wastech’s operating costs represented 89 per cent of its total revenues, equating to an 11 per cent operating profit8. Although achievement of Wastech’s target operating ratio was not guaranteed under the contract, if Wastech’s actual operating ratio deviated from its target, the contract provided for an adjustment payment to be made from one party to another so as to equalize the financial consequences of the variable that caused such deviation9. One such change that could affect achievement of Wastech’s target operating ratio was Metro’s decision to reduce waste disposal at the Cache Creek facility, and this circumstance was contemplated by the parties during negotiation10.
In 2011, Metro re-allocated waste from the Cache Creek Landfill to the Vancouver Landfill, making it impossible for Wastech to achieve its target operating ratio, reducing Wastech’s revenue for that year and causing it to operate at a loss before the adjustment payments were made11. Wastech commenced arbitration proceedings against Metro under the contract, claiming $2.8 million in damages for lost profits resulting from Metro’s discretionary re-allocation decision12. Wastech argued Metro’s exercise of contractual discretion in this respect breached its duty of good faith under the contract.
The Supreme Court’s analysis and key takeaways
The SCC unanimously dismissed Wastech’s appeal and the arbitral award remained overturned; however, its reasons for doing so were split six justices to three. Justice Kasirer authored the majority’s reasons and Justice Brown authored concurring reasons.
The majority of the SCC enunciated the following key principles:
Contracting parties have a duty to exercise contractual discretion honestly13 and in good faith14. This duty, like the duty of honest performance, is a “general doctrine of contract law” that “operates in every contract irrespective of the intentions of the parties.”15
The duty to exercise discretion in good faith obligates contracting parties to exercise said discretion reasonably16, which means “connected to the purpose for which the contract granted the discretion.” Generally speaking, there will often be a range of legitimate, reasonable choices or exercises of discretion17 (and corresponding outcomes flowing therefrom) “in light of the purposes identified by the contract.”18 Thus, “good faith does not eliminate the discretion-exercising party’s power of choice…it simply limits the range of legitimate ways in which a discretionary power may be exercised in light of the relevant purposes.”19
The “touchstone” or standard that courts use to measure and evaluate whether a party has exercised their discretion reasonably and in good faith is the purpose for which the discretion was created and conferred according “to the bargain the parties had chosen to put in place,” which is the “first source of justice between the parties.”20 Where the purpose or intentions of the parties with respect to the conferred discretion is not explicitly discernible from the text of the contract, the court must engage in contractual interpretation to ascertain same.21 In this way, judicial review of the reasonableness of a contracting party’s discretion remains grounded in the parties’ own contract and intentions, and it will be inappropriate for a court to evaluate a party’s choices based on its own view of whether the discretion was exercised fairly, morally or wisely (in a commercial sense, or otherwise).22 This approach avoids “ad hoc judicial moralism.”23
A party will be in breach of the duty where they exercise contractual discretion in a manner that is not consonant with its underlying purposes, an example of which is “where the exercise of discretion is capricious or arbitrary.”24 Further, a party will be in breach of the duty where their exercise of discretion “falls outside of the range of choices connected to its underlying purpose – outside the purpose for which the agreement the parties themselves crafted provides discretion.”25 Discretionary power capable of “objective measurement” will have a “relatively smaller” range of reasonable outcomes26, whereas powers not “readily susceptible to objective measurement” will have a relatively larger range of reasonable outcomes. Ultimately, a court’s evaluation of exercises of discretion is “highly context-specific,” and ultimately dependent on the “intention of the parties as disclosed by their contract.”27
A party’s exercise of discretion that causes its contracting partner to “lose some or even all of its anticipated benefit under the contract,” or causes a “‘substantial nullification’ or ‘evisceration’ of the benefit of a contract,” is not determinative or a “necessary prerequisite” to finding a breach of the duty to exercise contractual discretion in good faith.”28 Rather, such an outcome may be a relevant factor in the analysis of whether the choice leading to that outcome was connected to the animating contractual purposes.
The duty does not require the party exercising discretion to “subordinate its interests” to those of its contracting partner, or to confer a benefit on its contracting partner “that was not contemplated under the contract.”29 This limitation ensures the duty does not confer an advantage or benefit on a party that was not provided for in the agreement.30
For example, if a contract confers discretion to an owner to accept or reject a contractor’s work (such as in a design-bid-build scenario), the owner must exercise such discretion in good faith such that approval is not unreasonably withheld if the contractor’s work product is consistent with the project specifications.
Practically speaking, the Wastech decision makes clear that parties that “provide for discretionary power cannot contract out of the implied undertaking that the power will be exercised in good faith, i.e., in light of the purposes for which it was conferred.”31 Therefore, parties ought to consider expressly providing for, or identifying, their purposes and intentions behind the creation and conferral of all discretionary powers included in their contract in order to mitigate potential litigation.
What remains unclear in the wake of the Wastech decision is the applicable standard of review framework for appeals of commercial arbitral awards under provincial arbitration legislation. Pursuant to prior SCC precedents of Sattva Capital Corp. v. Creston Moly Corp.,32 and Teal Cedar Products Ltd. v. British Columbia33, arbitral awards appealed under arbitration statutes are reviewed on the deferential standard of reasonableness, unless the questions raised are constitutional ones, or those of central importance to the legal system as a whole and outside the arbitrator’s expertise.34 However, the SCC recently released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov,35 (“Vavilov”) which established a revised framework for determining the applicable standard of review from administrative decisions. According to the majority in the Wastech decision, since Vavilov did not “advert to” those prior SCC precedents on the standard of review applicable to appeals of commercial arbitral awards, this question was most appropriately left to another day.36 In contrast, the three minority justices in concurrence concluded that, post-Vavilov, the appellate standard of review framework (i.e., the correctness standard) should now apply to appeals of arbitral awards, given these awards are appealed pursuant to a statutory appeal mechanism and only on questions of law.37 However, these comments are obiter and the impact of Vavilov on the applicable standard of review for appeals of arbitral awards remains to be resolved.
Photo: tashatuvango/123RF
The outcome for Wastech
The SCC unanimously concluded Metro’s exercise of discretion to reduce the waste allocated to the Cache Creek Landfill, which had the effect of reducing Wastech’s profitability for the year and making it impossible for Wastech to achieve the target operating ratio, was not exercised in bad faith. Since the contract gave Metro absolute discretion to determine the amount of waste disposed at Cache Creek each year, the court engaged in contractual interpretation to discern the parties’ specific intention and purpose behind conferring this discretion on Metro in order to evaluate whether it was exercised reasonably, i.e., consonant with, and within the reasonable range of choices connected to, that purpose. Reading the contract as a whole, and particularly focusing on the recitals to the contract and the adjustable compensation structure in Wastech’s favour, the majority of the court concluded the purpose of the discretion was to enable Metro to allocate waste in a way that maximized efficiency and minimized costs, not to guarantee Wastech a certain level of profit. As such, Metro was found not to have breached its duty, as it exercised its discretion reasonably and consistent with the underlying purposes for which it was granted by allocating waste away from Cache Creek Landfill. Wastech’s appeal was ultimately dismissed with costs.
Implications of the Wastech decision on the construction industry
In light of the Wastech decision, stakeholders in the construction industry should remain mindful of all instances in which construction contracts confer discretionary powers to the parties, and ensure their actions are consistent with the purpose of the grant of discretion.
For example, if a contract confers discretion to an owner to accept or reject a contractor’s work (such as in a design-bid-build scenario), the owner must exercise such discretion in good faith such that approval is not unreasonably withheld if the contractor’s work product is consistent with the project specifications.
Conversely, if a contract provides broad design discretion to the contractor (such as in a design-build scenario), the contractor must ensure it exercises its discretion in good faith, and design the project in a manner consistent with the intentions of the parties in light of the overall contract. However, provided it does so, the owner’s ability to dictate particular design outcomes may be severely circumscribed.
Finally, the applicable standard of review for appeals of arbitral awards post-Vavilov will be closely monitored as this will impact those construction contracts with binding arbitration clauses.
Parties ought to consider expressly providing for, or identifying, their purposes and intentions behind the creation and conferral of all discretionary powers included in their contract in order to mitigate potential litigation.
References
Wastech Services Ltd v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, 454 DLR (4th) 1.
Sattva Capital Corp v Creston Moly Corp, 2014 SCC 53, [2014] 2 SCR 633.
Teal Cedar Products ltd. v British Columbia, 2017 SCC 32, [2017] 1 SCR 688.
Wastech, supra note 1 at para 45.
Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov].
Wastech, supra note 1 at paras 45-46.
Wastech, ibid at para 121.
If you have further questions about the implications of the Wastech decision, or other matters of contract drafting, advice or litigation, please do not hesitate to reach out to one of Miller Thomson’s experienced construction law lawyers. For inquires, contact Adrienne S. Funk, an associate in the Edmonton office, at afunk@millerthomson.com or, for any Saskatchewan construction inquiries, please contact Troy Baril, a partner in the Saskatoon office, at tbaril@millerthomson.com.
Disclaimer: This publication is provided as an information service and may include items reported from other sources. We do not warrant its accuracy. This information is not meant as legal opinion or advice.
Don’t skip this important step for optimal workplace safety
Many aspects of safety management have evolved over the past few decades, but one of the things that has remained at the forefront is safety reporting. Safety professionals today still struggle to get the point across to the workforce that it is important to report hazards, unsafe acts and conditions.
The general attitude
Before getting into why employees should report hazards, let’s look at the general attitude towards reporting. When asked why they don’t report, employees working at different levels of an organization have a number of responses. The most common answer is, “When I see something unsafe, I fix it immediately and there ends the matter. Why waste time reporting it when it is not unsafe anymore?” (Some of the worst answers include “I don’t care” and “Nothing is going to change in this place anyway so why bother?”)
These answers are all wrong. On the surface, the first answer may seem correct. However, there are significant advantages of reporting hazards, unsafe acts or unsafe conditions, and this article is going to examine those next.
Why people don’t report safety hazards
The reasons people don’t report can involve human factors or the reporting process itself. Human factors range from having no trust in the organization to address the unsafe act or condition, reporting being seen as “spying” or “blaming,” a feeling that it’s a waste of time, not being aware or not understanding the benefits of reporting, laziness, forgetfulness and so on.
Process factors are important, as well. If there is a long and complex form to fill out and copies aren’t available close to the work area, employees may not be inclined to take that extra effort. Sometimes, employees do not have time even for a few minutes to be away from work. In some situations, management may even discourage reporting to save time or try to hide the conditions.
Benefits of reporting
Why report? The main thing people say, even from those who have very positive attitudes towards safety and who follow all procedures correctly, is that first answer mentioned above – it is only important to fix the unsafe act or condition. It is true that once fixed, a hazard is being removed and an accident is being prevented from happening. However, reporting what was seen and what was done will prevent not only that one incident but many other incidents, too.
How? The report can be communicated to others so they take similar steps in their work areas or activities to fix the situation and, therefore, prevent incidents from happening in their areas. All the reports collectively create a profile for a particular work site or the organization. The profile can be analyzed to identify trends that can help prioritize resources and form specific strategies.
For example, if there are a large number of reports related to employees lifting objects incorrectly, then training sessions can be arranged to educate on the right lifting technique.
Every report involves a lesson learned, whether it is the way people have behaved or the conditions or equipment that has been maintained.
This lesson can be communicated to others so they can take necessary actions. Communicating lessons learned from one incident and followed by others will prevent more incidents.
The number of reports indicates awareness and attitude of the workforce and can be a leading indicator in measuring safety performance.
All this would not be possible if the report was not there in the first place.
Every report involves a lesson learned, whether it is the way people have behaved or the conditions or equipment that has been maintained.
How to increase reporting
The first step is to educate the workforce about the benefits of reporting. This provides context and increases awareness about why reports matter. However, the single most effective measure is creating trust in the workforce: trust in management and the process that, once reported, things will change for the better and hazards will be removed.
This can happen only if management, supervisors and occupational health and safety committee members take every report seriously and meticulously address the issues. Acting promptly goes a long way in reassuring the workforce that their reporting efforts are not wasted.
The education provided should also note that reporting is not “spying” or “blaming.” This message must be backed by actions (or no actions) by management, to encourage and recognize those who report. Recognition could be in the form of a simple “pat on the back,” a mention during the safety meeting or even establishing an award program to recognize the efforts to report and the quality of reporting.
Trust is a major motivating factor. Making reporting easy and convenient also helps a lot. A simple reporting form where minimal information is needed is helpful. Once workforce trust is earned, it is easier to get “reporting” into the culture of the organization and part of everyday work habits.
Create a safe workplace
When a hazard is seen, resolving it in the best possible manner is only the first step. It is just as important to follow with the second step: reporting it so others are aware and benefit as well. Spread the news around to help everyone create a safe workplace!
Despite pandemic-related challenges, SYA is cultivating more student interest in careers in the skilled trades
Staff at the Saskatchewan Apprenticeship and Trade Certification Commission (SATCC) continued to promote the Saskatchewan Youth Apprenticeship (SYA) program, apprenticeship and careers in the skilled trades throughout 2020–21. However, that promotion looked a little different than in previous years due to COVID-19.
While SYA program staff typically deliver face-to-face presentations in classrooms across the province, this past year they used software like Zoom and Microsoft Teams to deliver presentations remotely. They also recorded presentations and uploaded them to the SATCC’s website and YouTube channel so educators can access the material when it’s convenient for them. They also participated in virtual career events.
“It was a challenging year, but I’m proud of the work our SYA Champions and our staff accomplished this year,” said Paul Blankestijn, SYA manager. “We adapted to the circumstances; we love interacting with students and educators in person, but this past year proved we can also engage folks virtually.”
Photo: Rabia Elif Aksoy/123RF
SYA, overseen by the SATCC, gives students the opportunity to learn more about apprenticeship and careers in the skilled trades through research and hands-on learning. Participants complete 12 activities – or challenges – including attending a career fair; interviewing a journeyperson; researching and preparing a report on a designated trade; and completing Practical and Applied Arts course credits. Participating schools designate an educator to serve as the school’s SYA Champion. These are the people who submit student registrations and administer the SYA challenges.
One of SYA’s goals is to help facilitate increased diversity within the broader apprenticeship system. Currently, 27 per cent of SYA participants self-identify as female and 22 per cent of SYA participants self-identify as Indigenous. Women remain an underrepresented group in the skilled trades – they currently make up about 11 per cent of the apprenticeship population in Saskatchewan, and about 5 per cent of the apprenticeship population in trades where women are underrepresented. Indigenous apprentices currently make up about 18 per cent of the apprenticeship population.
There are nearly 4,500 students currently registered in the program, an increase of 7 per cent over the total number of participants as of June 30, 2020.
Despite the challenges presented by COVID-19, the SYA program continued to grow in 2020–21. There are nearly 4,500 students currently registered in the program, an increase of 7 per cent over the total number of participants as of June 30, 2020.
Students who complete the program and register as apprentices within five years of graduation receive 300 trade time hours; plus, their apprenticeship registration fee and their Level 1 technical training tuition are waived.
SYA participants also have the opportunity to be nominated for an SYA Industry Scholarship. In 2020–21, the SATCC issued 100 SYA Industry Scholarships to students from 79 Saskatchewan communities. The $1,000 scholarships are unique – they’re not awarded upfront. To redeem them, students must demonstrate they’re actively pursuing a career in the skilled trades within two years of graduation, either by registering as an apprentice and completing Level 1 technical training or by completing a pre-employment course in a designated trade.
The SYA Industry Scholarship fund is supported by both the Government of Saskatchewan and industry sponsors. To date, 59 industry organizations, including private businesses; trade associations; and labour organizations, have contributed to the fund.
“The SYA Industry Scholarship program incentivizes recipients to start their skilled trades careers as soon as possible following high school graduation,” saod Blankestijn. “The two-year redemption window encourages young people to embark on their career paths sooner. Whether we’re talking to educators or presenting to students, we always emphasize that the skilled trades are first-choice careers, not fallback careers.”
