Canada Post Corporation v. Nova Scotia (Workers Compensation Appeals Tribunal),

• Jurisdiction: Nova Scotia
• Judge: MacDonald, C.J.N.S., Oland and Fichaud, JJ.A.
• Neutral Citation: 2009 NSCA 41
• Citation: (2009), 276 N.S.R.(2d) 287 (CA),2009 NSCA 41,1962 CanLII 488 (NS CA),309 DLR (4th) 742,276 NSR (2d) 287,309 D.L.R. (4th) 742,276 N.S.R.(2d) 287,276 NSR(2d) 287,(2009), 276 NSR(2d) 287 (CA)
• Date: 02 April 2009
• Court: Court of Appeal of Nova Scotia (Canada)

Can. Post v. WCAT (2009), 276 N.S.R.(2d) 287 (CA);

    880 A.P.R. 287

MLB headnote and full text

Temp. Cite: [2009] N.S.R.(2d) TBEd. AP.029

Canada Post Corporation (appellant) v. Nova Scotia Workers' Compensation Appeals Tribunal, Workers' Compensation Board of Nova Scotia and Ann Almon (respondents)

(CA 300510; 2009 NSCA 41)

Indexed As: Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Oland and Fichaud, JJ.A.

April 22, 2009.

Summary:

Almon was employed by Canada Post Corp. She suffered job related stress and was unable to work. She was a member of the Canada Post Pension Plan and received disability benefits since November 6, 2004. A Workers' Compensation Board case manager determined that Almon was entitled to temporary earnings replacement benefits after November 6, 2004. A Board hearing officer dismissed Canada Post's appeal. The Workers' Compensation Appeals Tribunal (WCAT) dismissed a further appeal. Canada Post appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Workers' Compensation - Topic 5630

Compensation - Measure of - Effect of other payments - Almon was employed by Canada Post Corp. - She suffered job related stress and was unable to work - She was a member of the Canada Post Pension Plan and received disability benefits since November 6, 2004 - A Workers' Compensation Board case manager determined that Almon was entitled to temporary earnings replacement benefits after November 6, 2004 - A Board hearing officer dismissed Canada Post's appeal - The Workers' Compensation Appeals Tribunal (WCAT) dismissed a further appeal - Canada Post appealed, asserting that Almon's disability benefits under the Plan were amounts that Almon "is earning" under s. 38(b)(i) of the Workers' Compensation Act - If so, those benefits reduced her earnings replacement benefits under s. 38(a) - The Nova Scotia Court of Appeal dismissed the appeal - Almon did not "earn" her disability benefits after her injury and cessation of employment - Almon earned the contributions to the Plan during her employment - The Plan expressly prescribed contributions for "current service", and Almon's service for Canada Post was the only reason Canada Post made those contributions - Those contributions later metamorphosed into the disability benefit Almon received after her cessation of employment from disability - If her disability earned the benefits again, then she would "earn" the same amount twice, a proposition the court did not accept - Further,"regular salary and wages" in s. 20(1)(a) of the Workers' Compensation Regulations did not include a disability benefit paid by a trustee or insurer after the employee ceased employment due to disability - Nothing in ss. 38(a), 39(1) or 42 of the Act or s. 20 of the Regulations suggested that a disability benefit further to an employer Plan was included in "gross earnings".

Cases Noticed:

Cape Breton Development Corp. v. Morrison Estate et al. (2003), 218 N.S.R.(2d) 53; 687 A.P.R. 53; 2003 NSCA 103, refd to. [para. 3].

Pelley v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 265 N.S.R.(2d) 143; 848 A.P.R. 143; 2008 NSCA 46, refd to. [para. 13].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 13].

Young v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2009), 276 N.S.R.(2d) 276; 880 A.P.R. 276; 2009 NSCA 35, refd to. [para. 13].

Khosa v. Canada (Minister of Citizenship and Immigration) (2009), 385 N.R. 206; 2009 SCC 12, refd to. [para. 15].

Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2005), 231 N.S.R.(2d) 390; 733 A.P.R. 390; 2005 NSCA 62, refd to. [para. 15].

Puddicombe v. Nova Scotia (Workers's Compensation Board) - see Nova Scotia (Minister of Transportation and Public Works) v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Monsanto Canada Inc. v. Superintendent of Financial Services (Ont.) et al., [2004] 3 S.C.R. 152; 324 N.R. 259; 189 O.A.C. 201, refd to. [para. 17].

Amherst (Town) et al. v. Superintendent of Pensions (N.S.) (2008), 268 N.S.R.(2d) 339; 857 A.P.R. 339; 2008 NSCA 74, leave to appeal denied (2009), 364 N.R. 393 (S.C.C.), refd to. [para. 17].

Police Association of Nova Scotia Pension Plan v. Amherst (Town) - see Amherst (Town) et al. v. Superintendent of Pensions (N.S.).

Cape Breton Development Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 266 N.S.R.(2d) 381; 851 A.P.R. 381; 2008 NSCA 72, refd to. [para. 18].

Embanks et al. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 264 N.S.R.(2d) 93; 847 A.P.R. 93; 2008 NSCA 28, refd to. [para. 18].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161, refd to. [para. 20].

Social Services Administration Board (Parry Sound District) v. Ontario Public Service Employees Union, Local 324 et al., [2003] 2 S.C.R. 157; 308 N.R. 271; 177 O.A.C. 235, refd to. [para. 20].

Cohen v. Workers' Compensation Board (N.S.) et al. (2007), 260 N.S.R.(2d) 144; 831 A.P.R. 144; 2007 NSCA 118, refd to. [para. 20].

Clarke v. Clarke, [1990] 2 S.C.R. 795; 113 N.R. 321; 101 N.S.R.(2d) 1; 275 A.P.R. 1, refd to. [para. 25].

Lowe v. Lowe (2006), 206 O.A.C. 293 (C.A.), dist. [para. 27].

Hamilton v. Hamilton, [2005] O.T.C. 626 (Sup. Ct.), dist. [para. 27].

Pasiechnyk et al. v. Procrane Inc. et al., [1997] 2 S.C.R. 890; 216 N.R. 1; 158 Sask.R. 81; 153 W.A.C. 81, refd to. [para. 39].

Pasiechnyk v. Saskatchewan (Workers' Compensation Board) - see Pasiechnyk et al. v. Procrane Inc. et al.

Statutes Noticed:

Workers' Compensation Act, S.N.S. 1994-95, c. 10, sect. 38 [para. 7].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 20].

Counsel:

Daniel W. Ingersoll and Rebekah L. Powell, for the appellant;

Alexander MacIntosh, for the respondent, Workers' Compensation Appeals Tribunal;

Madeleine F. Hearns, for Workers' Compensation Board;

Kenneth H. LeBlanc, for Workers' Advisers Program.

This appeal was heard in Halifax, N.S., on April 2, 2009, by MacDonald, C.J.N.S., Oland and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following judgment of the Court of Appeal was delivered by Fichaud, J.A., on April 22, 2009.