Schulte v. Workers' Compensation Board Appeals Commission (Alta.), (2015) 605 A.R. 210 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 07, 2015
• Citations: (2015), 605 A.R. 210 (QB);2015 ABQB 17

Schulte v. WCBAC (2015), 605 A.R. 210 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. JA.095

Francis Schulte (applicant) v. Appeals Commission and Workers' Compensation Board (respondents)

(1303 08526; 2015 ABQB 17)

Indexed As: Schulte v. Workers' Compensation Board Appeals Commission (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

January 7, 2015.

Summary:

Schulte was injured in a workplace accident in 1987. He had been dissatisfied with a number of Workers' Compensation Board (WCB) and Appeals Commission decisions relating to the accident. More recently, he applied for declaratory relief concerning the constitutional validity of WCB orders relating to cost of living increases, as well as for judicial review of two Appeals Commission decisions: (1) decision no. 2012-1009, in relation to two issues: (i) should the worker's earnings loss supplement be recalculated, and (ii) were the worker's right lower extremity problems in 2006 and in 2010 attributable to the 1987 compensable accident; and (2) decision no. 2013-0730, being a refusal by the Appeals Commission to reconsider its prior refusal to extend the time period for the reconsideration application.

The Alberta Court of Queen's Bench dismissed the application. Schulte failed to establish that the WCB or the Appeals Commission breached any constitutional obligation to him or violated any of his Charter rights. Nor had he shown that the WCB or the Appeals Commission had acted with bias or breached any of their procedural fairness obligations. He also failed to demonstrate that the specific decisions under review were unreasonable.

Administrative Law - Topic 1415.1

Finality - General - [See second Workers' Compensation - Topic 6968 ].

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - General - Constitutional questions - [See Workers' Compensation - Topic 1061 ].

Civil Rights - Topic 936

Discrimination - Government programs - Workers' compensation - [See fifth Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 1201

Security of the person - General - Economic or property rights - [See second Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - [See third Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 3802

Cruel and unusual treatment or punishment - General - Application - [See fourth Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Circumstances not constituting - [See fourth Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 5667.1

Equality and protection of the law - Workers' compensation - [See first Workers' Compensation - Topic 5623 ].

Civil Rights - Topic 8363

Canadian Charter of Rights and Freedoms - Denial of rights - Jurisdiction (incl. court of competent jurisdiction) - [See Workers' Compensation - Topic 1061 ].

Civil Rights - Topic 8504

Canadian Charter of Rights and Freedoms - Enforcement - Jurisdiction - [See Workers' Compensation - Topic 1061 ].

Workers' Compensation - Topic 1061

Boards - Jurisdiction - General - The Appeals Commission did not decide the constitutional arguments raised by the aggrieved worker concerning the validity of the Board orders concerning cost of living adjustments, on the basis of questionable jurisdiction to do so - The worker applied for declaratory relief - He argued that s. 11 of the Administrative Procedures and Jurisdiction Act (Alta.) violated the Charter because it took away the power of the Appeals Commission to deal with constitutional issues - Section 11 provided that: "Notwithstanding any other enactment, a decision maker has no jurisdiction to determine a question of constitutional law unless a regulation made under section 16 has conferred jurisdiction on that decision maker to do so." - Under the Designation of Constitutional Decision Makers Regulation, the Appeals Commission was only given jurisdictional powers with respect to "questions of constitutional law arising from the federal or provincial distribution of powers under the Constitution of Canada" - The Alberta Court of Queen's Bench concluded that the worker "has not provided any authority that suggests that the legislature does not have the power to limit or remove a tribunal's jurisdiction to consider Charter issues, or that he has a Charter right to have Charter issues dealt with by the Appeals Commission." - See paragraphs 86 to 96.

Workers' Compensation - Topic 1069

Boards - Jurisdiction - To reconsider, vary, amend or revoke decision - [See first Workers' Compensation - Topic 6968 ].

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - An aggrieved worker (Schulte) disagreed with the method of calculating the cost of living adjustment applied to his earning loss supplement in accordance with Board orders - He was not directly involved in the appeals of the referenced orders, nor in the resulting court reviews - On judicial review, he argued that the Board orders were constitutionally invalid because, through them, the Board had established a "creative accounting" system that deprived permanently disabled individuals of their equality rights - The Alberta Court of Queen's Bench rejected the argument - "Mr. Schulte's concerns have been litigated in Osborn and Parada, and while Mr. Schulte is concerned that the WCB did not include him in that litigation ..., there is nothing new to litigate here. Further, Mr. Schulte does not provide any evidence as to comparator groups for the purposes of a proper s. 15 Charter analysis, and he does not provide any information as to what enumerated (or analogous) ground of discrimination under s. 15 has been engaged by the Board Orders." - See paragraphs 97 to 104.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - An aggrieved worker (Schulte) raised Charter arguments relating to his treatment by the Workers' Compensation Board (WCB) and the Appeals Commission since his 1987 accident - He argued that his s. 7 Charter right to security of the person had been violated because of the inadequate compensation and vocational assistance provided to him - The Alberta Court of Queen's Bench held that no breach of s. 7 had been made out - "I am not satisfied on the evidence that any stress and anxiety Mr. Schulte has suffered, whether related to his financial compensation, WCB's vocational assistance, or constant appeals of WCB and Appeals Commission decisions, has been sufficiently substantial to engage s. 7. Nor do I find that any of the WCB's and Appeals Commissions' actions in this case interfered with fundamentally important individual interests or with Mr. Schulte's ability to make essential life choices, which appears to be a requisite in the case law." - Vocational assistance was not a "right" under the Workers' Compensation Act (s. 59)) - Further, there were adequate remedies to address the adequacy of the vocational services provided - See paragraphs 108 to 136, 163.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - An aggrieved worker (Schulte) had been dissatisfied with a number of Workers' Compensation Board (WCB) and Appeals Commission decisions since his injury in 1987 - More recently, the Appeals Commission held that Schulte's earnings loss supplement should not be recalculated, and that he did not have a recurrence of disability related to his 1987 injury - His arguments on this application included that his s. 9 Charter rights had been violated; specifically, that he had been "arbitrarily detained in a civil manner throughout the processing of both his WCB claims." - The Alberta Court of Queen's Bench rejected the argument - "No authority is cited for Mr. Schulte's argument that an arbitrary detention or imprisonment for the purposes of s. 9 can occur in the types of administrative proceedings or interactions seen in this case, particularly those that involve seeking civil remedies, complaints of delays in obtaining such civil remedies or failures to obtain satisfactory civil remedies. Nor have any of his arguments or evidence demonstrated a suspension of his liberty interests through psychological or physical restraint by the WCB or Appeals Commission. As Mr. Schulte was never detained for the purposes of s. 9 in the course of his proceedings with WCB and the Appeals Commission, no violation has been made out." - See paragraphs 137 to 142, 165.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - Schulte was injured in a workplace accident in 1987 - He had been dissatisfied with a number of Workers' Compensation Board and Appeals Commission decisions relating to the accident - In this application, Schulte argued that the Appeals Commission violated s. 12 of the Charter, having subjected him to "cruel and unusual treatment when they made arbitrary decisions unsupported by any reasonable interpretation of legislation and policy with the intention of depriving me of the retroactive wage loss benefits, forthcoming wage loss benefits and vocational assistance that would enable me to compete for gainful employment." - The Alberta Court of Queen's Bench held that no violation of s. 12 had been made out - "[T]here is no element of s. 12 punishment in this case. Mr. Schulte has been denied civil remedies to which he believes he is entitled. Not getting something that you want is not punishment. While there may be a punitive aspect to not getting something to which you are entitled, it is not the sort of punishment that engages s. 12." - See paragraphs 143 to 149, 166.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - Schulte was injured in a workplace accident in 1987 - Over the years, he had been dissatisfied with a number of Workers' Compensation Board (WCB) and Appeals Commission decisions relating to the accident - On this application, Schulte argued that he had been discriminated against on grounds related to his personal characteristics, and that the WCB withheld wage loss benefits and limited his access to vocational rehabilitation opportunities which all other permanently disabled individuals with acceptable WCB claims were entitled to - The Alberta Court of Queen's Bench held that Schulte failed to show a violation of his s. 15 Charter rights - "Mr. Schulte was individually assessed at all stages of the many processes and proceedings over the last 27 years and there is no indication that he was treated differently or discriminated against because of the nature of his disability. ... [A]ny bias or arbitrariness has to be rooted on one of the enumerated or analogous grounds. ... Charter litigation is a complex, technical area that requires specificity identifying the Charter right or value at issue, precisely how that right has been violated, and whether there is any justification for the apparent Charter breach by the government actor. Those elements are absent here" - See paragraphs 150 to 161, 167.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - Schulte was injured in a workplace accident in 1987 - The Appeals Commission of the Workers' Compensation Board (WCB) held that Schulte's earnings loss supplement should not be recalculated to account for cost of living adjustments as set out in its previous decision dated June 12, 2008 - Schulte applied for judicial review - He was seeking to have the Appeals Commission direct payment of retroactive cost of living adjustments for the years before 2006, based on the favourable decision he received in June 12, 2008 - The Alberta Court of Queen's Bench stated that "[i]n the face of the court decisions in Osborn and Parada, it is difficult to see how the Appeals Commission could have come to any other conclusion for the years falling after the dates of those decisions. The Commission might have come to a different conclusion on the retroactive cost of living benefits for the years 1994 to 2005, but review for reasonableness does not allow the reviewing court to itself choose from the range of possible acceptable outcomes. ... [T]he Appeal Commission's understanding that Osborn removed the Commission's ability to undertake the line of reasoning used to support the June 12, 2008 decision, thereby rendering them unable to direct the WCB to apply a recalculation to Mr. Schulte's benefits up to 2005, was reasonable." - See paragraphs 276 to 288.

Workers' Compensation - Topic 6943

Practice - Hearing - Procedural fairness - An aggrieved worker (Schulte) raised a number of issues relating to procedural fairness regarding his various appeals before the Appeals Commission of the Workers' Compensation Board (WCB) - The Alberta Court of Queen's Bench found that the duty of procedural fairness and the amount of procedural protection owed under it in this case was moderate - "The Appeals Commission provides for a process that resembles judicial decision-making in some ways. The Appeals Commission reviews the record, hears submissions and can hear new evidence. The Appeals Commission decision affects the worker's rights and WCB's obligations. As such, the process provided for by the Appeals Commission requires greater procedural protections to fulfil the duty of fairness ... The statutory scheme also favours greater procedural protections because the privative clause in s 13.1(1) of the [Workers' Compensation Act] limits the avenues for appeals/review. While the Appeals Commissions' decisions certainly have an impact on Mr. Schulte, they are not about determining his ultimate ability to receive benefits, and are not as relatively significant as seen in other cases. ... The Appeals Commission also has the authority to determine its own rules and procedures." - See paragraphs 170 to 179.

Workers' Compensation - Topic 6943

Practice - Hearing - Procedural fairness - An aggrieved worker (Schulte) raised a number of issues relating to procedural fairness, including that the Workers' Compensation Board (WCB) and Appeals Commission turned a "blind eye" to his legal arguments for the use of prospective wages in establishing his compensation rate, thereby acting in bad faith - The 1984 version of the WCA was in place at the time of the 1987 accident - The current version of the Act (2000 version) referred to earnings at the time of the accident or before it, although s 2.1 gave a residual discretion which might be interpreted as allowing the WCB to look forward, as Schulte urged - The Alberta Court of Queen's Bench held that there was no merit to the argument that either administrative body turned a blind eye - There were viable alternative arguments that led to the conclusions the WCB and the Appeals Commission made - "I do not see that they were wilfully ignorant to or intentionally ignoring applicable legislation or policy when determining his compensation rate. While they may not have accepted his arguments, it cannot be said that either the WCB or the Appeals Commission have unreasonably, or in bad faith, refused to accept his arguments, as there are clearly reasonable arguments to the contrary." - See paragraphs 207 to 238.

Workers' Compensation - Topic 6968

Practice - Decision of board - Reconsideration of decision - The Alberta Court of Queen's Bench addressed the applicant worker's argument that he was entitled to re-litigate his issues on the basis that there was no finality to his appeal proceedings - "[The applicant] argues that he is entitled to challenge or have the determination of his earnings loss reconsidered without having to demonstrate new evidence, a consideration under Rule 5.5(4) of the Appeal Commission's Rules, because a circumstance such as the application of a cost of living adjustment opens the door to a review of his basic entitlements. I am not persuaded that a program such as a cost of living adjustment was intended to permit the worker to revisit previous decisions relating to compensation. Otherwise, such a program could become an end run around WCB [Workers' Compensation Board] and Appeals Commission policies promoting finality of decisions. ... I see no merit in permitting decisions to be opened up merely because there has been an administrative adjustment (which is intended to benefit the worker) and no other change in circumstances." - See paragraphs 251 to 262.

Workers' Compensation - Topic 6968

Practice - Decision of board - Reconsideration of decision - The Appeals Commission refused to reconsider its prior refusal to extend the time period for a reconsideration application - The reasons for denying leave to reconsider were that the worker filed the reconsideration application out of time; the underlying decision had been unsuccessfully judicially reviewed; and no new compelling evidence was provided - The Alberta Court of Queen's Bench held that the Appeals Commission decision was reasonable in the context of judicial review - "The Appeal Board's reconsideration policies and rules are aimed at finality, subject to being presented with new evidence of a material change in circumstances, or if the decision shows an error of jurisdiction, an obvious and important error of law, or, is based on a process that was obviously unfair or unjust. Upon my review of the decision in question, none of these factors were met, nor were the factors suggested by Cromwell J. in Figliola [(2011) S.C.C.] sufficient to warrant reconsideration on the information before me in this application." - See paragraphs 314 to 329.

Workers' Compensation - Topic 7121

Practice - Judicial review - General (incl. when available) - Use of affidavit evidence - An aggrieved worker (Schulte) sought declaratory relief concerning constitutional claims and judicial review of two Appeals Commission decisions - In support of his originating notice, Schulte filed a 27-page affidavit - As a preliminary matter, the Appeals Commission objected, arguing that review by the courts should be based on the record before the Appeals Commission - The Alberta Court of Queen's Bench held that the affidavit was of "mixed admissibility ... I will not rule the affidavit inadmissible, but will make limited use of it. It provides details of Mr. Schulte's constitutional claims, as well as his bias, procedural fairness and natural justice claims. Some parts assist in understanding Mr. Schulte's position. Other parts are irrelevant and unhelpful to any of the issues. In the end, I will make use of the information in the affidavit when it is admissible and helpful on an issue, and I will ignore it as evidence of any facts to supplement those used by the Appeals Commission." - See paragraphs 27 to 33.

Cases Noticed:

Osborn v. Workers' Compensation Board Appeals Commission (Alta.) (2009), 480 A.R. 249; 2009 ABQB 661, refd to. [para. 5].

Parada v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2011), 499 A.R. 169; 514 W.A.C. 169; 2011 ABCA 44, refd to. [para. 5].

Schulte v. Workers' Compensation Board Appeals Commission (Alta.) et al., [2012] A.R. Uned. 747; 2012 ABQB 272, refd to. [para. 20].

Alberta Liquor Store Association et al. v. Gaming and Liquor Commission (Alta.) et al. (2006), 406 A.R. 104; 2006 ABQB 904, refd to. [para. 28].

White v. Workers' Compensation Board Appeals Commission (Alta.) (2006), 400 A.R. 183; 2006 ABQB 359, refd to. [para. 29].

TNL Industrial Contractors Ltd. et al. v. International Brotherhood of Electrical Workers, Local 424 et al. (1998), 225 A.R. 245; 1998 ABQB 241, refd to. [para. 30].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 77]; appld. [para. 171].

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. 77].

Shuchuk v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2012), 522 A.R. 336; 544 W.A.C. 336; 2012 ABCA 50, refd to. [para. 77].

Davidson v. Calgary (City) et al., [2006] A.R. Uned. 929; 66 Alta. L.R.(4th) 296; 2006 ABQB 801, refd to. [para. 77].

Nor-Chris Holdings Inc. v. Sturgeon (County) (2013), 559 A.R. 159; 2013 ABQB 184, refd to. [para. 77].

Teskey v. Great West Life Assurance Co. et al. (2001), 304 A.R. 262; 2001 ABQB 1060, refd to. [para. 77].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 382 A.R. 120; 2005 ABQB 543, refd to. [para. 77].

Patrus v. Workers' Compensation Board (Alta.) et al. (2011), 527 A.R. 105; 2011 ABQB 523, refd to. [para. 77].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 78].

R. v. Conway (P.), [2010] 1 S.C.R. 765; 402 N.R. 255; 263 O.A.C. 61; 2010 SCC 22, refd to. [para. 78].

Husky Oil Operations v. Minister of National Revenue et al., [1995] 3 S.C.R. 453; 188 N.R. 1; 137 Sask.R. 81; 107 W.A.C. 81, refd to. [para. 78].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 78].

Verdun v. Toronto-Dominion Bank, [1996] 3 S.C.R. 550; 203 N.R. 60; 94 O.A.C. 211, refd to. [para. 78].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 78].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 78].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 78].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 78].

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. 78].

Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al., [2011] 3 S.C.R. 422; 421 N.R. 338; 311 B.C.A.C. 1; 529 W.A.C. 1; 2011 SCC 52, refd to. [para. 78]; consd. [para. 252].

British Columbia (Workers' Compensation Board) v. Figliola - see Workers' Compensation Board (B.C.) v. Human Rights Tribunal (B.C.) et al.

Brissette v. Westbury Life Insurance Co., [1992] 3 S.C.R. 87; 142 N.R. 104; 58 O.A.C. 10, refd to. [para. 78].

Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2012), 522 A.R. 118; 544 W.A.C. 118; 2012 ABCA 78, refd to. [para. 78].

Lavesta Area Group Inc. v. Energy and Utilities Board (Alta.) et al., [2011] A.R. Uned. 44; 2011 ABCA 108, refd to. [para. 78].

Devon Canada Corp. v. Energy and Utilities Board (Alta.), [2003] A.R. Uned. 183; 3 Admin. L.R.(4th) 154; 2003 ABCA 167, refd to. [para. 78].

Alberta (Attorney General) v. United Food and Commercial Workers Union, Local 401 et al. (2010), 498 A.R. 87; 2010 ABQB 777, refd to. [para. 78].

Shuchuk v. Wolfert (2001), 98 Alta. L.R.(3d) 346; 2001 ABQB 937, refd to. [para. 78].

Greater St. Albert Roman Catholic Separate School District No. 734 v. Buterman (2014), 570 A.R. 39; 2014 ABQB 14, refd to. [para. 78].

Merchant v. Law Society of Alberta (2008), 431 A.R. 349; 2007 ABQB 658, refd to. [para. 78].

Lewis v. Nisbet & Auld Ltd., [1934] 3 D.L.R. 241 (S.C.C.), refd to. [para. 79].

Penner v. Niagara Regional Police Services Board et al., [2013] 2 S.C.R. 125; 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 79].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 79].

Fleck v. Workermen's Compensation Board (N.B.), [1934] 2 D.L.R. 145 (N.B.K.B.), affd. [1934] 3 D.L.R. 302 (N.B.C.A.), refd to. [para. 79].

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 95]; dist. [para. 156].

Lavallee v. Alberta Securities Commission (2010), 474 A.R. 295; 479 W.A.C. 295; 2010 ABCA 48, refd to. [para. 115].

Siemens et al. v. Manitoba (Attorney General) et al., [2003] 1 S.C.R. 6; 299 N.R. 267; 173 Man.R.(2d) 1; 293 W.A.C. 1; 2003 SCC 3, refd to. [para. 115].

Reference Re Sections 32 and 34 of the Workers' Compensation Act (Nfld.) (1987), 67 Nfld. & P.E.I.R. 16; 206 A.P.R. 16; 44 D.L.R.(4th) 501 (Nfld. C.A.), refd to. [para. 115].

Baier et al. v. Alberta, [2007] 2 S.C.R. 673; 365 N.R. 1; 412 A.R. 300; 404 W.A.C. 300; 2007 SCC 31, refd to. [para. 115].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161; 2000 SCC 44, refd to. [para. 117].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 117].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 117].

B(R) v. Children's Aid Society of Metropolitan Toronto - see New Brunswick (Minister of Health and Community Services) v. J.G. and D.V.

B(R) v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Gosselin v. Quebec (Procureur général), [2002] 4 S.C.R. 429; 298 N.R. 1; 2002 SCC 84, refd to. [para. 117].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25; 2005 SCC 35, refd to. [para. 117].

Director of Child and Family Services (Man.) v. A.C. et al., [2009] 2 S.C.R. 181; 390 N.R. 1; 240 Man.R.(2d) 177; 456 W.A.C. 177; 2009 SCC 30, refd to. [para. 117].

Charkaoui, Re, [2007] 1 S.C.R. 350; 358 N.R. 1; 2007 SCC 9, refd to. [para. 139].

Charkaoui v. Canada (Citizenship and Immigration) - see Charkaoui, Re.

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 140].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 15 B.C.L.R.(2d) 273; 75 N.R. 321, refd to. [para. 143].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 148].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 150].

Johnson v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2010), 494 A.R. 334; 2010 ABQB 393, refd to. [para. 170].

Boardwalk Reit LLP v. Edmonton (City) et al. (2008), 437 A.R. 347; 433 W.A.C. 347; 91 Alta. L.R.(4th) 1; 2008 ABCA 220, refd to. [para. 170].

Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 F.C. 592; 252 N.R. 1 (F.C.A.), refd to. [para. 194].

Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board) et al., [2011] 3 S.C.R. 708; 424 N.R. 220; 317 Nfld. & P.E.I.R. 340; 986 A.P.R. 340; 2011 SCC 62, refd to. [para. 195].

Conseil de la magistrature (N.-B.) v. Moreau-Bérubé, [2002] 1 S.C.R. 249; 281 N.R. 201; 245 N.B.R.(2d) 201; 636 A.P.R. 201; 2002 SCC 11, refd to. [para. 201].

Canadian Union of Public Employees et al. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539; 304 N.R. 76; 173 O.A.C. 38; 2003 SCC 29, refd to. [para. 202].

Three Rivers, D.C. v. Bank of England (No. 3), [2001] 2 All E.R. 513; [2001] UKHL 16, refd to. [para. 211].

Alberta v. Nilsson (1999), 246 A.R. 201; 1999 ABQB 440, refd to. [para. 212].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170; 2003 SCC 19, refd to. [para. 266].

Alberta Teachers' Association v. Information and Privacy Commissioner (Alta.) et al., [2011] 3 S.C.R. 654; 424 N.R. 70; 519 A.R. 1; 539 W.A.C. 1; 2011 SCC 61, refd to. [para. 266].

Manitoba Association of Health Care Professionals v. Nor-Man Regional Health Authority Inc., [2011] 3 S.C.R. 616; 423 N.R. 95; 275 Man.R.(2d) 16; 538 W.A.C. 16; 2011 SCC 59, refd to. [para. 266].

Driver Iron Inc. v. International Association of Bridge, Structural, Ornamental and Reinforcing Ironworkers, Local Union No. 720 et al., [2012] 3 S.C.R. 405; 437 N.R. 202; 2012 SCC 65, refd to. [para. 266].

Allsop v. Alberta Workers' Compensation Board (Appeals Commission) et al., [2011] A.R. Uned. 546; 29 Admin. L.R.(5th) 321; 2011 ABCA 323, refd to. [para. 266].

Gahir v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 448 A.R. 135; 447 W.A.C. 135; 2009 ABCA 59, refd to. [para. 266].

Nortel Networks Inc. v. Calgary (City) et al. (2008), 440 A.R. 325; 438 W.A.C. 325; 2008 ABCA 370, refd to. [para. 266].

Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board (Appeals Commission) et al., [2010] A.R. Uned. 932; 2010 ABQB 705, refd to. [para. 266].

Belkadi v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2013), 555 A.R. 395; 2013 ABQB 124, refd to. [para. 266].

Berezoutskaia v. Human Rights Tribunal (B.C.) et al. (2006), 223 B.C.A.C. 71; 369 W.A.C. 71; 51 B.C.L.R.(4th) 4; 2006 BCCA 95, refd to. [para. 310].

E.G.G., Re, [2014] A.R. Uned. 770; 2014 ABCA 396, refd to. [para. 319].

E.G. v. Alberta (Child, Youth and Family Enhancement Act, Director) - see E.G.G., Re.

Statutes Noticed:

Administrative Procedures and Jurisdiction Act, R.S.A. 2000, c. A-3, sect. 11 [para. 86].

Administrative Procedures and Jurisdiction Act Regulations (Alta.), Designation of Constitutional Decision Makers Regulation, A.R. 69/2006, generally [para. 87].

Canadian Charter of Rights and Freedoms, 1982, sect. 7 [para. 108]; sect. 9 [para. 139]; sect. 12 [para. 147]; sect. 15 [para. 150].

Designation of Constitutional Decision Makers Regulation - see Administrative Procedures and Jurisdiction Act Regulations (Alta.).

Workers' Compensation Act, R.S.A. 2000, c. W-15, sect. 13.1(7), sect. 13.1(8) [para. 299]; sect. 56(1) [para. 227]; sect. 59(1) [para. 97]; sect. 89(1) [para. 133].

Workers' Compensation Act Regulations (Alta.), Workers' Compensation Regulation, A.R. 427/81, sect. 1(1) [para. 223].

Workers' Compensation Appeal Rules (Alta.), rule 5.2(1) [para. 302]; rule 5.2(2) [para. 303]; rule 5.5(1) [para. 304]; rule 5.5(3) [para. 305]; rule 5.5(4) [para. 306].

Workers' Compensation Regulation (Alta.) - see Workers' Compensation Act Regulations (Alta.).

Authors and Works Noticed:

Halsbury's Laws of Canada, Administrative Law, Tribunals' Exercise of Discretion: Reviewing Discretion: Grounds of Review: Bad Faith (2013 Reissue), s. 4.2(2)(b)(iv), generally [para. 214].

Ontario, Justice Education Network, Section 7 of the Charter, http://www.ojen.ca/sites/ ojen.ca/files/Section%207%20of%20the%20Charter%20-%20Brief%20Guide.pdf [para. 116, footnote 1].

Counsel:

Mr. Schulte, the applicant, on his own behalf;

Dale Wispinski, for the Appeals Commission;

Manoj Gupta, for the Workers' Compensation Board.

This application was heard on July 2 and 3, 2014, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. The Court delivered the following judgment and reasons, dated January 7, 2015.