Keddy v. WHSCC,

• Jurisdiction: New Brunswick
• Judge: Rice, Deschênes and Robertson, JJ.A.
• Neutral Citation: 2002 NBCA 24
• Citation: 2002 NBCA 24,(2002), 247 N.B.R.(2d) 284 (CA),247 NBR (2d) 284,212 DLR (4th) 84,42 Admin LR (3d) 161,[2002] CarswellNB 89,[2002] NBJ No 91 (QL),247 NBR(2d) 284,[2002] N.B.J. No 91 (QL),247 N.B.R.(2d) 284,212 D.L.R. (4th) 84,(2002), 247 NBR(2d) 284 (CA)
• Date: 16 January 2002
• Court: Court of Appeal (New Brunswick)

Keddy v. WHSCC (2002), 247 N.B.R.(2d) 284 (CA);

    247 R.N.-B.(2e) 284; 641 A.P.R. 284

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.B.R.(2d) TBEd. MR.018

Sandra Lee Keddy (respondent/appellant) v. Workplace Health, Safety and Compensation Commission (respondent) and Region 3 Hospital Corporation and Anne Brown (applicants/respondents)

(157/01/CA; 2002 NBCA 24)

Indexed As: Keddy v. Workplace Health, Safety and Compensation Commission (N.B.) et al.

New Brunswick Court of Appeal

Rice, Deschênes and Robertson, JJ.A.

March 14, 2002.

Summary:

A plaintiff sued a nurse and a hos­pital, alleging that the nurse had negligently treated her for a work related injury. The hospital applied for a determination of whether the action was barred by s. 11(1) of the Workers' Compensation Act. The Work­place Health, Safety and Compensation Commission and the Appeals Tribunal held that the action was barred. The plaintiff appealed.

The New Brunswick Court of Appeal dismissed the appeal.

Administrative Law - Topic 1420

Finality - Privative clauses - Effect of privative clauses - Absence of - The New Brunswick Court of Appeal stated that "the legislative objective underscoring a priva­tive clause is well documented in the jurisprudence and is the raison d'être un­derscoring the existence of the deference doctrine. The failure to include such a clause in a tribunal's enabling statute and the legislative decision to grant a statutory right of appeal, on enumerated grounds, leads to the irresistible conclusion that deference is not owed to tribunal decisions involving matters that the legislature has expressly delineated." - See paragraph 26.

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - [See Administrative Law - Topic 1420 ].

Administrative Law - Topic 6201

Judicial review - Statutory appeal - Scope or standard of review - General - The New Brunswick Court of Appeal stated that "it is worth reemphasizing that the Supreme Court has repeatedly held that whether a tribunal decision is owed defer­ence is a question directed at isolating legislative intent ... It is equally important to remem­ber that it is not the mandate of reviewing courts to determine the proper standard of review by reference to the four factors that comprise the pragmatic and functional approach. Those factors are used to address the issue of legislative intent. Otherwise, it would be all too easy to place overriding weight on the principles of relative exper­tise and specialization of duties at the ex­pense of a clearly worded statutory provi­sion that negates the duty of review­ing courts to exercise deference. The search for legislative intent begins with the trite understanding that legislative drafts­persons appreciate the legal distinction between a full privative clause and a right of appeal on stated grounds. The fact that a tribunal possesses a relative expertise is not a suf­ficient basis for insisting that deference be granted to a tribunal's deci­sion. Otherwise, the fundamental distinc­tion between judi­cial and appellate review is obscured, if not lost. Above all, the principles of rela­tive expertise and special­ization of duties cannot displace a statute's unambiguous wording." - See paragraphs 28 and 29.

Administrative Law - Topic 6207

Judicial review - Statutory appeal - Scope or standard of review - Question of law or jurisdiction - The New Brunswick Court of Appeal stated that "... the statutory right to appeal a tribunal decision on a question of law is a sufficient ground for holding that correctness is the proper review stan­dard. The fact that the tribunal qualifies as an expert tribunal and that the issue at hand involves the application of the tri­bunal's relative expertise is not a sufficient basis to displace that standard. Otherwise, the principles of relative expertise and special­ization of duties would trump the legal duty imposed on reviewing courts to fol­low a clear legislative directive. Should the issue involve a question of mixed law and fact, the review standard may slide from correctness to reasonableness sim­pliciter. This intermediate standard of review nei­ther conflicts with nor under­mines the statutory right to appeal on a question of law. With respect to the review standard for questions of fact, the 'palpable and overriding' test found in the jurispru­dence applies to all triers of fact, be they judge or tribunal. Deference in these two in­stances does not conflict with a statutory right to appeal on questions of law." - See paragraph 59.

Administrative Law - Topic 6207.1

Judicial review - Statutory appeal - Scope or standard of review - Question of fact - [See Administrative Law - Topic 6207 ].

Administrative Law - Topic 6207.2

Judicial review - Statutory appeal - Scope or standard of review - Question of mixed fact and law - [See Administrative Law - Topic 6207 ].

Workers' Compensation - Topic 106

General principles - Effect of statute on other causes of action - Action by em­ployer or employee against employer cov­ered by Act - A plaintiff sued a nurse and hospital, alleging that the nurse had negli­gently treated her for a work related injury - Section 11(1) of the Workers' Compen­sation Act provided that if emplo­yees of two distinct employers were involved in an accident during the course of their respec­tive employments and both employers were covered by the Act, nei­ther employee could sue the other or the other's employer - The New Brunswick Court of Appeal held that s. 11(1) barred the action where the plaintiff was acting within the course of her employment when she received the medical treatment - A sufficient causal connection existed be­tween the work re­lated injury and the injury arising from the medical treatment in that the latter was a necessary incident of the former - See paragraphs 70 to 87.

Workers' Compensation - Topic 107

General principles - Effect of statute on other causes of action - Action by em­ployer or employee against an employee of another employer covered by Act - [See Workers' Compensation - Topic 106 ].

Workers' Compensation - Topic 5566

Compensation - Persons entitled - Em­ployees - Acting in the course of em­ploy­ment - [See Workers' Compensation - Topic 106 ].

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Ques­tion of law or jurisdiction - A plaintiff sued a nurse and hospital, alleging that the nurse had negligently treated her for a work related injury - The Workplace Health, Safety and Compensation Com­mission and the Appeals Tribunal held that the plaintiff was acting in the course of her employ­ment at the time she received the treatment and, accordingly s. 11(1) of the Workers' Compensation Act barred the action - The plaintiff appealed - The New Brunswick Court of Appeal held that the issue of whether the plaintiff was acting in the course of her employment was a ques­tion of law and, accordingly, the review stan­dard was correctness - In some in­stances the determination would raise a question of fact - See paragraph 63 to 69.

Workers' Compensation - Topic 7084

Practice - Appeals to the courts - Review of final decisions on law or jurisdiction - Section 21(12) of the Workplace Health, Safety and Compensation Commission Act, provided that "Any decision, order or ruling of the Appeals Tribunal shall be final, subject only to an appeal to the Court of Appeal involving any question as to its jurisdiction or any question of law" - Section 34 of the Workers' Compensation Act provided that the Commission had the exclusive jurisdiction to determine all questions arising under Part I of the legis­lation, including whether a common law right of action was barred under s. 11(1) - Section 34 also provided that the Commis­sion's decisions were final and not open to review in any court - The New Brunswick Court of Appeal held that the s. 34 exclu­sive jurisdiction clause qualified as a priva­tive clause - However, it did not conflict with the s. 21(12) right of appeal - See paragraphs 31 to 35.

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - [See Workers' Com­pensation - Topic 7082 ].

Workers' Compensation - Topic 7088

Practice - Appeals to the courts - Privative clauses - [See Workers' Com­pensation - Topic 7084 ].

Workers' Compensation - Topic 7098

Practice - Appeals to the courts - Costs - A plaintiff sued a nurse and hospital, alleging that the nurse had negligently treated her for a work related injury - Pursuant to the hospital's application, the Workplace Health, Safety and Compensa­tion Commis­sion and the Appeals Tribunal held that the action was barred by s. 11(1) of the Work­ers' Compensation Act - The New Bruns­wick Court of Appeal dismissed the plain­tiff's appeal - The court refused to award costs against the respondent Com­mission - Section 23(6) of the Workplace, Health, Safety and Compensation Com­mission Act authorized the Commission's participation in the appeal - The Commission's par­ticipation was akin to a tribunal that inter­vened as a friend of the court rather than a party adverse in interest to the plaintiff - See paragraph 88.

Cases Noticed:

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, dist. [para. 5].

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

Lindsay v. Workers' Compensation Board (Sask.) et al., [2000] 1 S.C.R. 59; 251 N.R. 14; 189 Sask.R. 49; 216 W.A.C. 49, dist. [para. 5].

Kovach v. Workers' Compensation Board (B.C.) et al., [2000] 1 S.C.R. 55; 251 N.R. 356; 133 B.C.A.C. 85; 217 W.A.C. 85, reving. (1998), 108 B.C.A.C. 283; 176 W.A.C. 283; 184 D.L.R.(4th) 415 (C.A.), dist. [paras. 5, 82].

Newfoundland (Minister of Works, Ser­vices and Transportation) v. Airport Realty Ltd. (2001), 205 Nfld. & P.E.I.R. 95; 615 A.P.R. 95 (Nfld. C.A.), dis­agreed with [para. 8].

Osmond v. Workers' Compensation Com­mission (Nfld.) (2001), 200 Nfld. & P.E.I.R. 202; 603 A.P.R. 202 (Nfld. C.A.), disagreed with [para. 8].

Halifax Employers' Association v. Work­ers' Compensation Appeals Tribu­nal (N.S.), [2000] N.S.J. No. 216 (C.A.), disagreed with [para. 8].

Bell Canada v. Canadian Radio-Television and Telecommunications Commission, [1989] 1 S.C.R. 1722; 97 N.R. 15, consd. [para. 9].

Pezim v. British Columbia Securities Com­mission et al., [1994] 2 S.C.R. 557; 168 N.R. 321; 46 B.C.A.C. 1; 75 W.A.C. 1, consd. [para. 9].

Pezim v. Superintendent of Brokers (B.C.) - see Pezim v. British Columbia Secur­ities Commission et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, consd. [para. 9].

Whitlock v. Workers' Compensation Board (P.E.I.) (2000), 196 Nfld. & P.E.I.R. 113; 589 A.P.R. 113 (P.E.I.C.A.), refd to. [para. 11].

Pushpanathan v. Canada (Minister of Citi­zenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201, refd to. [para. 13].

Minister of National Revenue (Customs and Excise) v. Mattel Canada Inc. (2001), 270 N.R. 153; 199 D.L.R.(4th) 598 (S.C.C.), varying (1999), 236 N.R. 285 (F.C.A.), refd to. [paras. 14, 48].

Gallant v. Workplace Health, Safety and Compensation Commission (N.B.) (2000), 228 N.B.R.(2d) 98; 588 A.P.R. 98 (C.A.), refd to. [para. 21].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 28].

Asbestos Corp., Société nationale de l'Amiante and Quebec (Province), Re (2001), 269 N.R. 311; 146 O.A.C. 201; 199 D.L.R.(4th) 577 (S.C.C.), refd to. [para. 28].

Committee for the Equal Treatment of Asbestos Minority Shareholders v. On­tario Securities Commission - see Asbestos Corp., Société nationale de l'Amiante and Quebec (Province), Re.

Syndicat national des employés de la Com­mission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, refd to. [para. 35].

U.E.S., Local 298 v. Bibeault - see Syndi­cat national des employés de la Commis­sion scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46, refd to. [para. 35].

Alcyon Shipping Co. v. O'Krane, [1961] S.C.R. 299, refd to. [para. 35].

Mack Trucks Manufacturing Co. of Can­ada v. Forget, [1974] S.C.R. 788, refd to. [para. 35].

Spellman v. Gulf Operators Ltd. et al. (1994), 143 N.B.R.(2d) 382; 366 A.P.R. 382 (C.A.), refd to. [para. 36].

Lanteigne v. Workmen's Compensation Board (N.B.) (1973), 7 N.B.R.(2d) 36 (C.A.), refd to. [para. 36].

Crothers and Sussex Farm & Garden Ltd. v. Martin and Ascon Ltd. and Workers' Compensation Board (N.B.) (1982), 44 N.B.R.(2d) 59; 116 A.P.R. 59 (C.A.), refd to. [para. 36].

Martin v. Commission de la santé, de la sécurité et de l'indemnisation des acci­dents au travail (N.-B.) (1998), 205 N.B.R.(2d) 319; 523 A.P.R. 319 (C.A.), refd to. [para. 36].

Gibbon v. Workplace Health, Safety and Compensation Commission (N.B.) (1995), 168 N.B.R.(2d) 54; 430 A.P.R. 54 (C.A.), refd to. [para. 37].

Savoie v. Workers' Compensation Board (N.B.) (1995), 163 N.B.R.(2d) 172; 419 A.P.R. 172 (C.A.), refd to. [para. 37].

Brun v. Commission de la santé, de la sécurité et de l'indemnisation des acci­dents au travail (N.-B.) (1996), 183 N.B.R.(2d) 172; 465 A.P.R. 172 (C.A.), refd to. [para. 37].

Gray v. Workplace Health, Safety and Compensation Commission (N.B.), [1998] N.B.R.(2d) Uned. 2 (C.A.), refd to. [para. 37].

Gellately v. Workers' Compensation Ap­peal Tribunal (Nfld.) (1995), 132 Nfld. & P.E.I.R. 134; 410 A.P.R. 134 (Nfld. C.A.), refd to. [para. 40].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 46].

Canadian Pacific Ltd. v. Canadian Trans­port Commission (1987), 79 N.R. 13 (F.C.A.), refd to. [para. 47].

R. v. Nova Scotia Pharmaceutical Society et al. (No. 2), [1992] 2 S.C.R. 606; 139 N.R. 241; 114 N.S.R.(2d) 91; 313 A.P.R. 91, refd to. [para. 51].

Toronto Area Transit Operating Authority v. Dell Holdings Ltd., [1997] 1 S.C.R. 32; 206 N.R. 321; 97 O.A.C. 81, refd to. [para. 56].

Joey's Delivery Service v. Workplace Health, Safety and Compensation Com­mission (N.B.) (2001), 239 N.B.R.(2d) 300; 619 A.P.R. 300 (C.A.), refd to. [para. 61].

Workmen's Compensation Board (N.B.) v. Canadian Pacific Railway Co. and Noell, [1952] 2 S.C.R. 359, refd to. [para. 73].

Workmen's Compensation Board (N.B.) v. Boissonneault (1977), 18 N.B.R.(2d) 621; 26 A.P.R. 621 (C.A.), refd to. [para. 76].

Davidson (Charles R.) and Co. v. M'Robb or Officer, [1918] A.C. 304 (H.L.), refd to. [para. 76].

Estabrooks Pontiac Buick Ltd., Re; New Brunswick v. Estabrooks Pontiac Buick Ltd., Estabrooks and Wolfe (1982), 44 N.B.R.(2d) 201; 116 A.P.R. 201 (C.A.), refd to. [para. 78].

Statutes Noticed:

Workers' Compensation Act, R.S.N.B. 1973, c. W-13, sect. 11(1) [para. 79]; sect. 34 [para. 32].

Workplace Health, Safety and Compensa­tion Commission Act, S.N.B. 1994, c. W-14, sect. 21(12) [para. 6]; sect. 23(6) [para. 88].

Authors and Works Noticed:

Jones, David P., and de Villars, Anne S., Principles of Administrative Law (3rd Ed. 1999), pp. 449, 450 [para. 28]; 481 [para. 26].

Counsel:

Jacob J. van der Laan, for the appellant;

E. Neil McKelvey, Q.C., for the respon­dent, Workplace Health, Safety and Compensation Commission;

Christopher R. Delong, for the respon­dents, Regional 3 Hospital Corp. and Anne Brown.

This appeal was heard on January 16, 2002, by Rice, Deschênes and Robertson, JJ.A., of the New Brunswick Court of Ap­peal. The judgment of the court was deliv­ered on March 14, 2002, including the fol­lowing opinions:

Robertson, J.A. (Deschênes, J.A., con­curring) - see paragraphs 1 to 88;

Rice, J.A. - see paragraph 89.