Gjerde v. Workers' Compensation Board (Sask.), 2016 SKCA 30

• Judge: Jackson, Caldwell and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 09, 2016
• Jurisdiction: Saskatchewan
• Citations: 2016 SKCA 30;(2016), 476 Sask.R. 121 (CA)

Gjerde v. WCB (2016), 476 Sask.R. 121 (CA);

    666 W.A.C. 121

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. MR.016

The Workers' Compensation Board of Saskatchewan (appellant/respondent) v. Cliff Gjerde (respondent/applicant)

(CACV2503; 2016 SKCA 30)

Indexed As: Gjerde v. Workers' Compensation Board (Sask.)

Saskatchewan Court of Appeal

Jackson, Caldwell and Ryan-Froslie, JJ.A.

March 9, 2016.

Summary:

Gjerde suffered a work-related injury in 1987. After the Workers' Compensation Board terminated his benefits, Gjerde asked for an examination by a Medical Review Panel. In November 2009, the Board accepted the Panel's findings that Gjerde was fit for certain types of work and held that Gjerde was not entitled to further benefits. Gjerde applied for judicial review in August 2013. He sought an order directing the Board to constitute a new Panel in full compliance with the Workers' Compensation Act. The Board argued that the 44 month delay in applying for judicial review was unreasonable and unexplained, and that judicial review was therefore barred.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 435 Sask.R. 1, granted the application. Any delay in bringing the application was adequately explained and did not amount to undue delay. The Board breached the Act and the rules of natural justice in its selection of physicians for the Panel. The Board appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Administrative Law - Topic 3306

Judicial review - General - Bars - Delay - The Workers' Compensation Board terminated Gjerde's benefits for a work-related injury in 1987 - In 2007, Gjerde requested an examination by a Medical Review Panel - In November 2009, the Board held that Gjerde was not entitled to further benefits - Gjerde applied for judicial review in August 2013 - The Board argued that judicial review was barred by the 44 month delay in bringing the application - The chambers judge refused to dismiss Gjerde's application on the basis of undue delay - She concluded that the delay was adequately explained by (1) Gjerde's personal circumstances (poor health and impecunious); (2) the fact that Gjerde was self-represented and unsophisticated while the issues were legally and factually complex; and (3) the fact that Gjerde had made relentless efforts to obtain legal assistance - Further, there was no substantial hardship or prejudice to the Board, and it would be detrimental to the administration of justice to bar the application given the merits of Gjerde's case - The Saskatchewan Court of Appeal dismissed the WCB's appeal - While the court shared the Board's concern respecting the length of the delay, and the explanations for it were not particularly cogent, the chambers judge correctly found that even if the delay was "undue" the Board had failed to show any substantial hardship or prejudice to its rights and, given the merits of Gjerde's application, it was in the interests of justice to hear the matter - The Board's argument respecting the need for finality in its decisions was not compelling where the legislation enabled workers to request that the Board revisit its decisions even though years might have passed since the injury was sustained - See paragraphs 25 to 32.

Administrative Law - Topic 3345

Judicial review - General - Practice - Affidavit evidence - [See Administrative Law - Topic 3345.1 ].

Administrative Law - Topic 3345.1

Judicial review - General - Practice - Evidence (incl. new evidence) - The Workers' Compensation Board terminated Gjerde's benefits for a work-related injury - Gjerde requested an examination by a Medical Review Panel, asserting that he was unable to work due to post-injury chronic pain and soft tissue damage - In selecting Panel members, the Board drew from a list of orthopaedic surgeons and neurologists - The Panel found that Gjerde was fit for certain types of work - The Board accepted the Panel's findings and held that Gjerde was not entitled to further benefits - Gjerde applied for judicial review and submitted the affidavit of a rheumatologist who attested that orthopaedic surgeons and neurologists were not specialists who dealt with chronic pain - The chambers judge accepted the affidavit and allowed the application - The Board appealed, arguing that the affidavit should not have been accepted because only material considered by the Board in coming to its decision was relevant on judicial review - The Saskatchewan Court of Appeal dismissed the appeal - What constituted the "record" for the purpose of judicial review varied considerably depending on the context in which the decision arose - What constituted the "record" in this case was determined by the Board and it did not contain any explanation or reasons for how or why orthopaedic surgeons and neurologists were chosen for the list of specialists from which the Panel was constituted - Judicial review of the Board's decision, and determining whether it met the legislative requirements, would not have been possible without the ability to supplement the record - In addition, affidavit evidence was admissible because procedural fairness issues were engaged - See paragraphs 33 to 49.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Workers' Compensation - Topic 7124 ].

Workers' Compensation - Topic 6887

Practice - Medical exam - Medical Review Panel - Constitution of - The Workers' Compensation Board terminated Gjerde's benefits for a work-related injury - Gjerde requested an examination by a Medical Review Panel, asserting that he was unable to work due to post-injury chronic pain and soft tissue damage - In constituting the Panel, the Board drew from a list of orthopaedic surgeons and neurologists - The Panel found that Gjerde was fit for certain types of work - The Board accepted the Panel's findings and held that Gjerde was not entitled to further benefits - Gjerde applied for judicial review, arguing that orthopaedic surgeons and neurologists were not specialists who dealt with chronic pain - The chambers judge allowed the application - The Saskatchewan Court of Appeal dismissed the Board's appeal - Under s. 62(1)(a), the list of physicians from which a Panel was chosen had to (1) consist of "specialists in the classes of injuries for which compensation has been claimed"; and (2) include all such physicians who practised in the city named in the request for a Panel - The Board had to comply with these two requirements; they had no discretion - In so far as the Board's interpretation of s. 62(1)(a) failed to recognize the statutory limits imposed upon it, its interpretation was unreasonable - The Board's decision was also unreasonable because it did not provide any reasons or justification for putting only orthopaedic surgeons and neurologists on the list - The only evidence before the chambers judge was to the effect that orthopaedic surgeons and neurologists were not specialists in chronic pain - Even if orthopaedic surgeons and neurologists were appropriate specialists, other physicians who specialized in chronic pain and soft tissue injuries should have been included as well - See paragraphs 60 to 86.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - The Workers' Compensation Board terminated Gjerde's benefits for a work-related injury - Gjerde requested an examination by a Medical Review Panel - The Panel found that Gjerde was fit for certain types of work - The Board accepted the Panel's findings and held that Gjerde was not entitled to further benefits - Gjerde applied for judicial review - The chambers judge allowed the application, finding that the Board had violated procedural fairness in its selection of physicians for the Panel - The Board appealed, arguing that the chambers judge erred because she applied the correctness standard of review instead of reasonableness - The Saskatchewan Court of Appeal found that the constitution of the Panel raised concerns of bias, but the process by which physicians were chosen was governed by s. 62(1)(a) of the Workers' Compensation Act and thus required a review of the Board's interpretation and application of its own statute - The chambers judge had to review the Board's interpretation of s. 62(1)(a) using a reasonableness standard - Her reasons did not show that she turned her mind to the Board's interpretation of s. 62(1)(a) - Rather, she focused on whether the Board breached its duty of procedural fairness - This was an error, but not one that affected the overall correctness of her decision - See paragraphs 50 to 59.

Workers' Compensation - Topic 7128

Practice - Judicial review - Time for - [See Administrative Law - Topic 3306 ].

Counsel:

Leonard Andrychuk, Q.C., for the appellant;

Christine Glazer, Q.C., and Rebecca Wood, for the respondent.

This appeal was heard before Jackson, Caldwell and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Ryan-Froslie, J.A., delivered the following judgment for the court on March 9, 2016.