Mellor v. Workers' Compensation Board (Sask.), 2012 SKCA 10

• Judge: Vancise, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 14, 2011
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 10;(2012), 385 Sask.R. 210 (CA)

Mellor v. WCB (2012), 385 Sask.R. 210 (CA);

    536 W.A.C. 210

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. FE.016

Workers' Compensation Board of Saskatchewan (respondent/appellant) v. Bryan Mellor (applicant/respondent)

(CACV2011; 2012 SKCA 10)

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

Saskatchewan Court of Appeal

Vancise, Ottenbreit and Caldwell, JJ.A.

February 9, 2012.

Summary:

The Workers' Compensation Act (Sask.) placed an upper limit on the insured earnings of a worker for the purpose of calculating compensation. Section 38 set out a formula by which the maximum wage rate was set and prescribed how the ceiling was systematically increased on an annual basis. Section 38.1 set out a specific legislated maximum wage rate for workers injured on or after September 1, 1985. Prior to 2007, the maximum wage rate under s. 38 was always lower than the s. 38.1 rate. However, as the rate calculated under s. 38 increased annually, it had eclipsed the legislated maximum in s. 38.1. Mellor was injured in 1981 and, since then, had received partial wage loss benefits. In 2008, he determined that the Workers' Compensation Board (WCB) had applied s. 38.1 to limit his benefits. His appeal was denied by the WCB. He applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2010), 363 Sask.R. 266, allowed the application. The WCB's decision was quashed and the matter was remitted to the WCB for redetermination. The WCB appealed.

The Saskatchewan Court of Appeal allowed the appeal, restoring the WCB's decision.

Administrative Law - Topic 2210

Natural justice - Policies, rules or guidelines adopted by board or tribunal - Exercise of authority by reference to policy statements - [See Workers' Compensation - Topic 5623 ].

Workers' Compensation - Topic 1071

Boards - Jurisdiction - Policies - [See Workers' Compensation - Topic 5623 ].

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - The Workers' Compensation Act (Sask.) placed an upper limit on the insured earnings of a worker for the purpose of calculating compensation - Section 38 set out a formula by which the maximum wage rate was set and prescribed how the ceiling was systematically increased on an annual basis - Section 38.1 set out a specific legislated maximum wage rate for workers injured on or after September 1, 1985 - In 2007, under the Workers' Compensation Board's (WCB) "Even Footing Policy", the maximum wage rate for workers injured prior to September 1, 1985, became subject to s. 38.1 - Prior to 2007, the maximum wage rate under s. 38 was always lower than the s. 38.1 rate - However, as the rate calculated under s. 38 increased annually, it had eclipsed the legislated maximum in s. 38.1 - Mellor was injured in 1981 and, since then, had received partial wage loss benefits - In 2008, he determined that the WCB had applied s. 38.1 to limit his benefits - His appeal from the effect of the Even Footing Policy was denied by the WCB - A chambers judge granted Mellor's application for judicial review - The Saskatchewan Court of Appeal allowed WCB's appeal, restoring the WCB's decision - Given the historical context of the workers' compensation regime, the WCB reasonably concluded that the maximum wage rate under s. 38 should be subject to the maximum wage rate fixed under s. 38.1 once they reached parity - This avoided the imposition of "a significant financial burden" on current and post-2007 employers to cover the cost of pre-September 1985 claims - The Even Footing Policy was a principled and rational approach that allowed for the average weekly earnings of all injured workers to increase through consumer price indexing within the confines of a single maximum wage rate fixed by the legislature - The WCB's decision upholding the Even Footing Policy was consistent with the Act's scheme and object, the "Meredith" principles and what the WCB interpreted as the legislature's intention - As such, it was a valid exercise of the WCB's authority - The policy filled legislative gaps which would otherwise have resulted in inequity and would have offended the Meredith recommendations - See paragraphs 22 to 51.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - The Workers' Compensation Act (Sask.) placed an upper limit on the insured earnings of a worker for the purpose of calculating compensation - Section 38 set out a formula by which the maximum wage rate was set and prescribed how the ceiling was systematically increased on an annual basis - Section 38.1 set out a specific legislated maximum wage rate for workers injured on or after September 1, 1985 - Prior to 2007, the maximum wage rate under s. 38 was always lower than the s. 38.1 rate - However, as the rate calculated under s. 38 increased annually, it had eclipsed the legislated maximum in s. 38.1 - Mellor was injured in 1981 and, since then, had received partial wage loss benefits - In 2008, he determined that the Workers' Compensation Board (WCB) had applied s. 38.1 to limit his benefits - His appeal was denied by the WCB - His application for judicial review was allowed on a standard of review of correctness - On the WCB's appeal, the Saskatchewan Court of Appeal held that the chambers judge had erred regarding the appropriate standard of review, which was reasonableness - The question before the WCB was narrow: the method under which the maximum wage rate was applied in the annual adjustment of compensation - This was a question of law - But it was not a question of law that could be characterized as a "true" jurisdictional question - It was a question located within the core function and expertise of the WCB relating to the interpretation and application of its enabling statute and closely-connected legal rules - The inquiry was "inextricably intertwined" with the WCB's mandate and expertise - The WCB made such decisions on a routine basis and was in the best position to do so - Finally, the decision did not raise issues of general legal importance - See paragraphs 14 to 21.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - At issue on an appeal by the Workers' Compensation Board was the calculation of a worker's partial wage loss benefits - The Saskatchewan Court of Appeal stated, "As the question before the Board called for an interpretation of the Act and closely-connected legal rules, the modern principle of statutory interpretation ... applies.... The modern principle instructs those who would interpret legislation to look at three elements: (i) the plain meaning of the text; (ii) the scheme or object of the statute or its purpose; and (iii) the intention of the Legislature. It requires the harmonization of these three elements to arrive at one interpretive outcome, which involves a standard of correctness. However, the standard upon which the Board Decision must be measured is that of reasonableness which necessarily admits the possibility of more than one interpretive outcome. As such, in the context of judicial review, the modern approach to statutory interpretation is only applied as an aid in determining whether the Board Decision falls within the range of possible, acceptable outcomes (i.e., whether it is a reasonable decision), but not whether, in the court's view, that outcome is the correct interpretation." - See paragraphs 31 and 32.

Cases Noticed:

Canadian Human Rights Commission v. Canada (Attorney General) - see Canada (Attorney General) v. Mowat.

Canada (Attorney General) v. Mowat (2011), 422 N.R. 248; 337 D.L.R.(4th) 385; 2011 SCC 53, refd to. [para. 14].

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. 14].

Khosa v. Canada (Minister of Citizenship and Immigration), [2009] 1 S.C.R. 339; 385 N.R. 206; 2009 SCC 12, refd to. [para. 14].

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. 16].

Sebastian v. Workers' Compensation Board (Sask.) (1994), 125 Sask.R. 28; 81 W.A.C. 28; 119 D.L.R.(4th) 528 (C.A.), refd to. [para. 16].

Bax v. Workers' Compensation Board (Sask.), [1998] 7 W.W.R. 269; 163 Sask.R. 254; 165 W.A.C. 254 (C.A.), refd to. [para. 16].

Goertzen v. Workers' Compensation Board (Sask.) (2002), 227 Sask.R. 146; 287 W.A.C. 146; 2002 SKCA 125, refd to. [para. 16].

Mantei v. Morris et al., [1997] 9 W.W.R. 203; 157 Sask.R. 43 (Q.B.), refd to. [para. 16].

Mitchell's Gourmet Foods Inc. v. Workers' Compensation Board (Sask.), [2007] 2 W.W.R. 73; 287 Sask.R. 258 (Q.B.), refd to. [para. 16].

Campbell v. Workers' Compensation Board, [2009] 12 W.W.R. 733; 335 Sask.R. 197; 2009 SKQB 275, refd to. [para. 16].

University of Saskatchewan v. Workers' Compensation Board (Sask.) et al. (2009), 320 Sask.R. 240; 444 W.A.C. 240; 205 D.L.R.(4th) 204; 2009 SKCA 17, refd to. [para. 18].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al. (2011), 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 26].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 31].

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 33].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207; 2003 SCC 20, refd to. [para. 33].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 33].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1; 2004 SCC 28, refd to. [para. 33].

Authors and Works Noticed:

Driedger, Elmer A., Construction of Statutes (2nd Ed. 1983), p. 87 [para. 31].

Meredith Report on Proposed Workmen's Compensation Legislation (1913), generally [para. 44].

Counsel:

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

Kevin C. Mellor, for the respondent.

This appeal was heard on October 14, 2011, by Vancise, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. On February 9, 2012, Caldwell, J.A., delivered the following written reasons for judgment for the court.