Enterprise Cape Breton Corp. v. Hogan et al., 2013 NSCA 33

• Judge: Saunders, Hamilton and Farrar, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: November 26, 2012
• Jurisdiction: Nova Scotia
• Citations: 2013 NSCA 33;(2013), 328 N.S.R.(2d) 144 (CA)

Ent. Cape Breton Corp. v. Hogan (2013), 328 N.S.R.(2d) 144 (CA);

    1039 A.P.R. 144

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. MR.024

Enterprise Cape Breton Corporation (formerly Cape Breton Development Corporation) (appellant) v. Peter Hogan, The Nova Scotia Workers' Compensation Appeals Tribunal, Workers' Compensation Board, and the Attorney General of Nova Scotia (respondents)

(CA 385259; 2013 NSCA 33)

Indexed As: Enterprise Cape Breton Corp. v. Hogan et al.

Nova Scotia Court of Appeal

Saunders, Hamilton and Farrar, JJ.A.

March 7, 2013.

Summary:

Hogan started working in the mines of Cape Breton in 1977 as an employee of Cape Breton Development Corporation (DEVCO). When mining operations shut down in 2001, Hogan was eligible to apply for benefits under an Early Retirement Incentive Program (ERIP). He opted to take the benefits and began receiving an ERIP in April 2002. The Nova Scotia Workers' Compensation Appeals Tribunal held that ERIP benefits should not be included in the calculation of a worker's post-injury earnings for the purposes of determining his Temporary Earnings-Replacement Benefit because they were not "regular salary or earnings" under s. 20(1) of the Workers' Compensation Act General Regulations (N.S.). The employer (formerly DEVCO) appealed the decision, submitting that in reaching its conclusion the Tribunal ignored relevant and reliable evidence of legislative intent, which resulted in an unreasonable decision and led to absurd results. Alternatively, the employer submitted that the Tribunal erred when it failed to address the issue of the effective date of its change in practice respecting its treatment of ERIPs.

The Nova Scotia Court of Appeal dismissed the appeal, holding that it was not persuaded that the Tribunal's decision fell outside the range of possible, acceptable outcomes which were defensible having regard to the facts and the law. As for the alternative argument, the court was not persuaded that the Tribunal ever seriously considered, or was explicitly asked to resolve, the effective date in Hogan's case which would pinpoint the Worker's Compensation Board's change in practice concerning its treatment of ERIPs. The court remitted that question to the Tribunal, to be decided at a time and in a manner of its choosing.

Workers' Compensation - Topic 5630

Compensation - Measure of - Effect of other payments - Hogan started working in the mines of Cape Breton in 1977 as an employee of Cape Breton Development Corporation (DEVCO) - When mining operations shut down in 2001, Hogan was eligible to apply for benefits under an Early Retirement Incentive Program (ERIP) - He opted to take the benefits and began receiving an ERIP in April 2002 - The Nova Scotia Workers' Compensation Appeals Tribunal held that ERIP benefits should not be included in the calculation of a worker's post-injury earnings for the purposes of determining his Temporary Earnings-Replacement Benefit because they were not "regular salary or earnings" under s. 20(1) of the Workers' Compensation Act General Regulations (N.S.) - The employer (formerly DEVCO) was a self-insured federal employer - It appealed, submitting, inter alia, that in reaching its conclusion the Tribunal ignored relevant and reliable evidence of legislative intent and the decision was unreasonable because it accorded no weight to the legislative history and its failure to accord weight to the legislative history created absurd results - The Nova Scotia Court of Appeal dismissed this ground where it was not persuaded that the Tribunal's decision fell outside the range of possible, acceptable outcomes which were defensible having regard to the facts and the law - See paragraphs 38 to 81.

Workers' Compensation - Topic 7016

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Remittal - Hogan started working in the mines of Cape Breton in 1977 as an employee of Cape Breton Development Corporation (DEVCO) - When mining operations shut down in 2001, Hogan was eligible to apply for benefits under an Early Retirement Incentive Program (ERIP) - He opted to take the benefits and began receiving an ERIP in April 2002 - The Nova Scotia Workers' Compensation Appeals Tribunal held that ERIP benefits should not be included in the calculation of a worker's post-injury earnings for the purposes of determining his Temporary Earnings-Replacement Benefit because they were not "regular salary or earnings" under s. 20(1) of the Workers' Compensation Act General Regulations (N.S.) - The employer (formerly DEVCO) appealed, submitting that the decision was unreasonable - Alternatively, the employer submitted that the Tribunal erred when it failed to address the issue of the effective date of its change in practice respecting its treatment of ERIPs - The Nova Scotia Court of Appeal held, regarding the alternative argument, that it was not persuaded that the Tribunal ever seriously considered, or was explicitly asked to resolve, the effective date in Hogan's case which would pinpoint the Worker's Compensation Board's change in practice concerning its treatment of ERIPs - The court remitted that question to the Tribunal - See paragraphs 82 to 95.

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - Hogan, an electrician by trade, started working in the mines of Cape Breton in 1977 as an employee of Cape Breton Development Corporation (DEVCO) - When mining operations shut down in 2001, Hogan was eligible to apply for benefits under an Early Retirement Incentive Program (ERIP) - He opted to take the benefits and began receiving an ERIP in April 2002 - The Nova Scotia Workers' Compensation Appeals Tribunal held that ERIP benefits should not be included in the calculation of a worker's post-injury earnings for the purposes of determining his Temporary Earnings-Replacement Benefit because they were not "regular salary or earnings" under s. 20(1) of the Workers' Compensation Act General Regulations (N.S.) - The employer (formerly DEVCO) appealed submitting, inter alia, that in reaching its conclusion the Tribunal ignored relevant and reliable evidence of legislative intent and the decision was unreasonable because it accorded no weight to the legislative history and its failure to accord weight to the legislative history created absurd results - The Nova Scotia Court of Appeal agreed that the standard of review of this issue was reasonableness because it involved the Tribunal's interpretation of its home statute and regulations made pursuant thereto - See paragraphs 25 to 33.

Words and Phrases

Regular salary or wages - The Nova Scotia Court of Appeal discussed the meaning of this phrase as found in s. 20(1) of the Workers' Compensation Act Regulations (N.S.), General Regulations, N.S. Reg. 195/2000 - See paragraphs 38 to 81.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 25].

McPhee v. Gwynne-Timothy (2005), 232 N.S.R.(2d) 175; 737 A.P.R. 175; 2005 NSCA 80, refd to. [para. 25].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 27].

Falkenham (C.R.) Backhoe Services Ltd. v. Human Rights Board of Inquiry (N.S.) et al. (2008), 264 N.S.R.(2d) 281; 847 A.P.R. 281; 2008 NSCA 38, refd to. [para. 27].

Osif v. College of Physicians and Surgeons (N.S.) (2009), 276 N.S.R.(2d) 118; 880 A.P.R. 118; 2009 NSCA 28, refd to. [para. 27].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 28].

Royal Environmental Inc. v. Halifax (Regional Municipality) et al. (2012), 317 N.S.R.(2d) 341; 1003 A.P.R. 341; 2012 NSCA 62, refd to. [para. 28].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2013), 441 N.R. 1; 409 Sask.R. 75; 568 W.A.C. 75; 2013 SCC 11, refd to. [para. 33].

Michelin North America (Canada) Inc. v. Labour Standards Tribunal (N.S.) et al. (2003), 214 N.S.R.(2d) 112; 671 A.P.R. 112; 2003 NSCA 40, refd to. [para. 34].

Canada Post Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2009), 276 N.S.R.(2d) 287; 880 A.P.R. 287; 2009 NSCA 41, dist. [para. 44].

Mime'j Seafoods Ltd. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2007), 260 N.S.R.(2d) 127; 831 A.P.R. 127; 2007 NSCA 115, refd to. [para. 56].

Statutes Noticed:

Workers' Compensation Act Regulations (N.S.), General Regulations, N.S. Reg. 195/2000, sect. 20 [para. 50].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada (1998) (2010 Looseleaf Update), p. 14-6, ¶14-4-211 [para. 34].

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), generally [para. 56].

Sullivan, Ruth, Treatise on Statutory Interpretation (2nd Ed. 2007), generally [para. 56].

Counsel:

Nancy F. Barteaux and Krista Smith, for the appellant;

Kenneth H. LeBlanc and Rick MacCuish, for the respondent, Peter Hogan;

Alison Hickey, for the respondent, Nova Scotia Workers' Compensation Appeals Tribunal;

Rory Rogers, Q.C., and Paula Arab, for the respondent, Workers' Compensation Board;

Edward A. Gores, Q.C., for the respondent, Attorney General of Nova Scotia, not participating.

This appeal was heard in Halifax, N.S., on November 26, 2012, by Saunders, Hamilton and Farrar, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on March 7, 2013.