Dipersio v. Workers' Compensation Appeals Tribunal (N.S.) et al., (2004) 228 N.S.R.(2d) 134 (CA)

• Judge: Cromwell, Saunders and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: October 05, 2004
• Jurisdiction: Nova Scotia
• Citations: (2004), 228 N.S.R.(2d) 134 (CA);2004 NSCA 139

Dipersio v. WCAT (2004), 228 N.S.R.(2d) 134 (CA);

 723 A.P.R. 134

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. NO.042

Hector G. Dipersio (appellant) v. Workers' Compensation Appeals Tribunal and Workers' Compensation Board and Rowan Companies Inc. (respondents)

(CA 209460; 2004 NSCA 139)

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

Nova Scotia Court of Appeal

Cromwell, Saunders and Fichaud, JJ.A.

November 19, 2004.

Summary:

In 1986, while working temporarily outside of Nova Scotia, Dipersio suffered permanent injuries. He commenced an action in Texas against his employer. He also claimed workers' compensation benefits under the former Nova Scotia Workers' Compensation Act. On December 1, 1989, the Workers' Compensation Board awarded Dipersio a 14 percent permanent medical impairment rating. The Board paid Dipersio benefits accordingly. In March, 1991, Dipersio settled the Texas action. The Board sued Dipersio in Nova Scotia, claiming that it was entitled to be subrogated to the proceeds of the settlement. The Board suspended Dipersio's benefits pending resolution of its action. The action was settled and a consent order was issued on January 20, 1998, dismissing the action. Dipersio applied to have the benefits reinstated. The Board reinstated the benefits but withheld payment because of Dipersio's recovery under the 1991 settlement. A hearing officer dismissed Dipersio's appeal. The Workers' Compensation Appeals Tribunal dismissed a further appeal, holding that s. 32 of the new Workers' Compensation Act, which came into force on February 1, 1996, permitted the Board to withhold payment. Dipersio appealed.

The Nova Scotia Court of Appeal allowed the appeal and remitted the matter to the Board for proper calculation and payment of Dipersio's benefits, without withholding benefits.

Workers' Compensation - Topic 3561

Subrogation - Degree or extent of subrogation - Nova Scotia - In 1991, Dipersio settled a foreign action against his employer for work related injuries - The Workers' Compensation Board withheld workers' compensation benefits from Dipersio because of the settlement proceeds - The Appeals Tribunal affirmed the decision, holding that s. 32 of the Workers' Compensation Act, which came into force on February 1, 1996, applied - Section 32 permitted withholding compensation for damages recovered in another jurisdiction - The Nova Scotia Court of Appeal held that s. 32 did not apply - The court rejected an assertion that since the new Act required Dipersio to assign damages recovered, he had a duty under s. 84(1)(c) to disclose the extent of settlement proceeds available and, because of his failure to do so, the Board could suspend, reduce or terminate benefits under s. 84(2) - The assertion was premised on a right to assign damages under s. 32 - Section 32 did not apply - Section 84(1)(c) required the disclosure of information "on any matter relevant to a claim for compensation" - The 1991 settlement proceeds were not relevant to Dipersio's claim which had been determined in 1989 - Section 84 did not entitle the Board to discontinue payment on a free standing basis unconnected to a relevant compensation issue - See paragraphs 76 to 79.

Workers' Compensation - Topic 3561

Subrogation - Degree or extent of subrogation - Nova Scotia - In 1991, Dipersio settled a foreign action against his employer for work related injuries - The Workers' Compensation Board withheld workers' compensation benefits from Dipersio because of the settlement proceeds - The Appeals Tribunal affirmed the decision, holding that s. 32 of the Workers' Compensation Act, which came into force on February 1, 1996, applied - Section 32 permitted withholding compensation for damages recovered in another jurisdiction - The Nova Scotia Court of Appeal allowed an appeal - Section 32 permitted withholding payment from a worker who "has a right of action" - "Has a right of action" referred to February 1, 1996, the day that s. 32 came into force - Dipersio released his right of action in 1991 when he settled - Further, the Board was required to pay compensation to Dipersio for his lifetime under the applicable transitional provision (s. 227) - The court rejected the position that s. 227(1) did not state to whom the compensation was to be paid and that compensation was "paid" to the Board - Payment under s. 227(1) did not include a withheld payment under s. 32 - See paragraphs 37 to 71.

Workers' Compensation - Topic 3561

Subrogation - Degree or extent of subrogation - Nova Scotia - In 1991, Dipersio settled a foreign action against his employer for work related injuries - The Workers' Compensation Board withheld workers' compensation benefits from Dipersio because of the settlement proceeds - The Appeals Tribunal affirmed the decision, holding that s. 32 of the Workers' Compensation Act, which came into force on February 1, 1996, applied - Section 32 permitted withholding compensation for damages recovered in another jurisdiction - The Nova Scotia Court of Appeal allowed an appeal - The court concluded that the Board did not have a right to withhold payment under s. 32 or the applicable transitional provision (s. 227) - Section 232, which required that an appeal be heard pursuant to that Part of the Act, did not require the application of s. 32 - Section 232 related principally to appeal procedures and did not change the substantive effect of ss. 32 and 227 - See paragraphs 72 to 74.

Workers' Compensation - Topic 3561

Subrogation - Degree or extent of subrogation - Nova Scotia - In 1991, Dipersio settled a foreign action against his employer for work related injuries - The Workers' Compensation Board withheld workers' compensation benefits from Dipersio because of the settlement proceeds - The Appeals Tribunal affirmed the decision, holding that s. 32 of the Workers' Compensation Act, which came into force on February 1, 1996, applied - Section 32 permitted withholding compensation for damages recovered in another jurisdiction - The former Act did not permit withholding payment - The Nova Scotia Court of Appeal allowed an appeal, holding that the Board did not have a right to withhold payment under s. 32 - This was so regardless of the "historic tradeoff" where workers relinquished their cause of action against the employers and, in return gained compensation under the statutory scheme - The tradeoff led to the enactment of workers' compensation legislation - It was the legislation which governed the rights and obligations of Dipersio and the Board - See paragraphs 80 to 83.

Workers' Compensation - Topic 3650

Subrogation - Rights of subrogated party - Withholding benefits where claimant has right of action in foreign jurisdiction - [See all Workers' Compensation - Topic 3561 ].

Workers' Compensation - Topic 3651

Subrogation - Rights of subrogated party - Withholding benefits for nondisclosure - [See first Workers' Compensation - Topic 3561 ].

Workers' Compensation - Topic 7006

Practice - Appeals - Review of board's decision by an appeal board or by the court - Standard of review - The Nova Scotia Court of Appeal stated that "Not every issue of law invokes the correctness standard. But an appeal which turns on the interpretation of the workers' compensation legislation and application of principles from the judicial case law usually attracts appellate review based on correctness." - See paragraph 26.

Cases Noticed:

Gagnon v. Richmond District School Board and Simpson (1986), 75 N.S.R.(2d) 313; 186 A.P.R. 313 (C.A.), refd to. [para. 11].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 25].

MacDonald v. Workers' Compensation Board (N.S.) et al. (2000), 191 N.S.R.(2d) 268; 596 A.P.R. 268; 2000 NSCA 134, refd to. [para. 26].

Ferneyhough v. Workers' Compensation Board (N.S.) (2000), 189 N.S.R.(2d) 76; 590 A.P.R. 76; 2000 NSCA 121, refd to. [para. 26].

Workers' Compensation Board (N.S.) v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2004), 225 N.S.R.(2d) 69; 713 A.P.R. 69; 2004 NSCA 88, refd to. [para. 26].

Boyle v. Workers' Compensation Board (N.S.) - see Workers' Compensation Board (N.S.) v. Workers' Compensation Appeals Tribunal (N.S.) et al.

Bauman et al. v. Nova Scotia (Attorney General) (2001), 192 N.S.R.(2d) 236; 599 A.P.R. 236; 2001 NSCA 51, refd to. [para. 26].

Workers' Compensation Board (N.S.) v. Richard (1998), 170 N.S.R.(2d) 270; 515 A.P.R. 270 (C.A.), refd to. [para. 26].

MacEachern v. Workers' Compensation Board (N.S.) (2003), 214 N.S.R.(2d) 302; 671 A.P.R. 302; 2003 NSCA 45, refd to. [para. 33].

Workers' Compensation Board (N.S.) v. Muise (1998), 170 N.S.R.(2d) 253; 515 A.P.R. 253 (C.A.), refd to. [para. 33].

Begg v. East Hants (Municipal District) and Nova Scotia (Director of Assessment) (1986), 75 N.S.R.(2d) 431; 186 A.P.R. 431 (C.A.), refd to. [para. 49].

Sinanan v. Woodyer et al. (1999), 176 N.S.R.(2d) 201; 538 A.P.R. 201 (C.A.), refd to. [para. 49].

Canasia Industries Ltd. v. May (2000), 204 N.S.R.(2d) 88; 639 A.P.R. 88 (C.A.), refd to. [para. 49].

CIBC Mortgage Corp. v. Ofume (2002), 208 N.S.R.(2d) 185; 652 A.P.R. 185 (C.A.), affing. (2002), 206 N.S.R.(2d) 234; 645 A.P.R. 234 (S.C.), refd to. [para. 49].

Nowe v. Allstate Insurance Co. of Canada (1996), 157 N.S.R.(2d) 148; 462 A.P.R. 148 (S.C.), refd to. [para. 49].

McQuaid and Roach v. Lapierre (1993), 128 N.S.R.(2d) 327; 359 A.P.R. 327 (S.C.), refd to. [para. 49].

Conrod v. Canada (1914), 49 S.C.R. 577, refd to. [para. 51].

British Columbia Electric Railway Co. v. Turner (1914), 49 S.C.R. 470, refd to. [para. 51].

Workers' Compensation Board (N.S.) v. Muise et al. (1998), 170 N.S.R.(2d) 253; 515 A.P.R. 253 (C.A.), leave to appeal refused [1999] 1 S.C.R. xi; 236 N.R. 396; 176 N.S.R.(2d) 357; 538 A.P.R. 357, dist. [para. 58].

MacEachern v. Workers' Compensation Board (N.S.) (2003), 214 N.S.R.(2d) 302; 671 A.P.R. 302; 2003 NSCA 45, dist. [para. 58].

Doward v. Workers' Compensation Board (N.S.) (1997), 160 N.S.R.(2d) 22; 473 A.P.R. 22 (C.A.), refd to. [para. 59].

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. 64].

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. 64].

Thomson v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2003), 212 N.S.R.(2d) 81; 665 A.P.R. 81 (C.A.), refd to. [para. 64].

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. 64].

Lowe v. Workers' Compensation Appeals Tribunal (N.S.) (1998), 166 N.S.R.(2d) 321; 498 A.P.R. 321 (C.A.), refd to. [para. 65].

Workers' Compensation Board (N.S.) v. Richard (1998), 170 N.S.R.(2d) 270; 515 A.P.R. 270 (C.A.), refd to. [para. 65].

Hayden v. Workers' Compensation Appeal Board (N.S.) (No. 2) (1990), 96 N.S.R.(2d) 108; 253 A.P.R. 108 (C.A.), refd to. [para. 66].

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. 80].

Statutes Noticed:

Workers' Compensation Act, S.N.S. 1994-95, c. 10, sect. 32 [para. 33]; sect. 84 [para. 75]; sect. 227(1) [para. 67]; sect. 232 [para. 73].

Counsel:

William Burchell, for the appellant;

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

David P.S. Farrar, for the respondent, Workers' Compensation Board;

Peter McLellan, Q.C., for the respondent, Rowan Companies Inc.

This appeal was heard on October 5, 2004, by Cromwell, Saunders and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on November 19, 2004.