Dale v. WCAT, 2015 NSCA 71

Judge:Beveridge, Farrar and Scanlan, JJ.A.
Court:Nova Scotia Court of Appeal
Case Date:July 24, 2015
Jurisdiction:Nova Scotia
Citations:2015 NSCA 71;(2015), 363 N.S.R.(2d) 231 (CA)
 
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Dale v. WCAT (2015), 363 N.S.R.(2d) 231 (CA);

    1143 A.P.R. 231

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Temp. Cite: [2015] N.S.R.(2d) TBEd. JL.043

John Dale (appellant) v. Nova Scotia Workers' Compensation Appeals Tribunal, The Workers' Compensation Board of Nova Scotia, The Attorney General for the Province of Nova Scotia and the Nova Scotia Department of Justice (respondents) and Office of the Employer Advisor Nova Scotia Group (intervenor)

(CA 410753; 2015 NSCA 71)

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

Nova Scotia Court of Appeal

Beveridge, Farrar and Scanlan, JJ.A.

July 24, 2015.

Summary:

The Workers' Compensation Act provided benefits for personal injury by accident arising out of and in the course of employment. Section 2(a), which defined "accident", excluded stress other than that resulting from "an acute reaction to a traumatic event". Dale, a corrections officer for 30 years, left work due to stress-related health issues and received short-term disability benefits for six months, then long-term benefits for two years. When benefits terminated in June 2010, Dale retired and applied for benefits under the Act. His initial claim was based on post-traumatic stress disorder (PTSD), but no traumatic event was identified. A hearing officer denied the claim, finding no "accident" as required by s. 2(b) of the Act where there was no injury rising from "an acute reaction to a traumatic event". Dale appealed, challenging the hearing officer's decision and arguing that the exclusion of on-set stress (no traumatic event) discriminated against him on the basis of disability (Charter, s. 15). The Workers' Compensation Appeals Tribunal (WCAT) dismissed the appeal. There was no acute reaction to a traumatic event. Alternatively, s. 2(a) did not violate s. 15 of the Charter. While s. 2(a) drew a distinction based on an enumerated ground, the distinction was not discriminatory. Dale appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - The Workers' Compensation Act provided benefits for personal injury by accident arising out of and in the course of employment - Section 2(a), which defined "accident", excluded stress other than that resulting from "an acute reaction to a traumatic event" - Dale, a corrections officer for 30 years, left work due to stress-related health issues and received short-term disability benefits for six months, then long-term benefits for two years - When benefits terminated in June 2010, Dale retired and applied for benefits under the Act - His initial claim was based on post-traumatic stress disorder (PTSD), but no traumatic event was identified - A hearing officer denied the claim, finding no "accident" as required by s. 2(b) of the Act where there was no injury rising from "an acute reaction to a traumatic event" - Dale appealed, challenging the hearing officer's decision and arguing that the exclusion of on-set stress (no traumatic event) discriminated against him on the basis of disability (Charter, s. 15) - The Workers' Compensation Appeals Tribunal (WCAT) dismissed the appeal - There was no acute reaction to a traumatic event - Alternatively, s. 2(a) did not violate s. 15 of the Charter - While s. 2(a) drew a distinction based on an enumerated ground, the distinction was not discriminatory - Dale appealed - The Nova Scotia Court of Appeal dismissed the appeal for different reasons - There was not a sufficient factual foundation for the WCAT to consider whether the exclusion of gradual onset stress from the definition of "accident" violated s. 15 - Before embarking on a Charter analysis, the WCAT had to first determine what Dale's injury was, whether that injury arose out of and in the course of his employment, and whether there was a disablement but for the stress exclusion (i.e., he would have received benefits but for the exclusion) - Absent those critical findings, the Charter analysis should not have been undertaken and the court declined to do so.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 8584 ].

Workers' Compensation - Topic 5611

Compensation - Compensable injuries and disabilities - Psychological injuries (incl. stress) - [See Civil Rights - Topic 8584 ].

Cases Noticed:

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. 24].

Alliance Pipeline Ltd. v. Smith (2011), 412 N.R. 66; 2011 SCC 7, refd to. [para. 24].

Muggah v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2015), 362 N.S.R.(2d) 201; 1142 A.P.R. 201; 2015 NSCA 63, refd to. [para. 24].

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 28].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 28].

Taypotat v. Taypotat et al. (2015), 471 N.R. 173; 2015 SCC 30, refd to. [para. 31].

Martin v. Workers' Compensation Board (Alta.) et al. (2014), 455 N.R. 331; 569 A.R. 6; 606 W.A.C. 6; 2014 SCC 25, refd to. [para. 32].

Halifax (Regional Municipality) v. Hoelke et al. (2011), 308 N.S.R.(2d) 277; 976 A.P.R. 277; 2011 NSCA 96, refd to. [para. 36].

Workers' Compensation Board (N.S.) v. Martin et al. (2003), 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 65].

Logan v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2006), 246 N.S.R.(2d) 147; 780 A.P.R. 147; 2006 NSCA 88, refd to. [para. 65].

Plesner v. British Columbia Hydro and Power Authority et al. (2009), 269 B.C.A.C. 240; 453 W.A.C. 240; 2009 BCCA 188, refd to. [para. 65].

Hartling et al. v. Nova Scotia (Attorney General) et al. (2009), 286 N.S.R.(2d) 219; 909 A.P.R. 219; 2009 NSCA 130, refd to. [para. 72].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 73].

Statutes Noticed:

Workers' Compensation Act, S.N.S. 1994-95, sect. 2(a) [para. 37].

Authors and Works Noticed:

Sossin, Lorne, Mootness, Ripeness and the Evolution of Justiciability, in Annual Review of Civil Litigation 2012 (2012), p. 96 [para. 27].

Counsel:

Kenneth H. LeBlanc and Stephen Lawlor, for the appellant;

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

Roderick (Rory) Rogers, Q.C., and Scott R. Campbell, for the respondent, The Workers' Compensation Board of Nova Scotia;

Edward A. Gores, Q.C., for the respondent, the Attorney General for the Province of Nova Scotia;

Sarah Bradfield, for the respondent, Nova Scotia Department of Justice;

Bradley D.J. Proctor and Katie Roebothan, for the Intervenor.

This appeal was heard on December 5, 2014, before Beveridge, Farrar and Scanlan, JJ.A., of the Nova Scotia Court of Appeal.

On July 24, 2015, Farrar, J.A., delivered the following judgment for the Court of Appeal.

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