St. Cyr v. Workers' Compensation Board Appeals Commission (Alta.), (2011) 521 A.R. 323 (QB)

• Judge: Topolniski, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: July 07, 2011
• Citations: (2011), 521 A.R. 323 (QB);2011 ABQB 407

St. Cyr v. WCBAC (2011), 521 A.R. 323 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. JL.066

Andre St. Cyr (applicant) v. The Workers' Compensation Board and Appeals Commission for Alberta Workers' Compensation (respondents)

(1003 16444; 2011 ABQB 407)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Topolniski, J.

July 7, 2011.

Summary:

St. Cyr was injured in a workplace accident in 2002. In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all. All remaining entitlement issues were remitted to the WCB. In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007. St. Cyr appealed and applied for judicial review.

The Alberta Court of Queen's Bench dismissed the appeal and the application for judicial review.

Administrative Law - Topic 2405

Natural justice - Procedure - General - Notice of subject matter to be considered - St. Cyr was injured in a workplace accident in 2002 - In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all - All remaining entitlement issues were remitted to the WCB - In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007 - St. Cyr sought judicial review, asserting a breach of natural justice in that the 2010 panel was effectively reconsidering the causation decision when it ruled that he was fit for some kind of work and that he was entitled to notice that the panel was reconsidering the 2006 decision - The Alberta Court of Queen's Bench rejected this argument - The 2006 decision did not determine entitlement, but only causation - Nothing suggested that the 2010 panel was reconsidering causation - St. Cyr knew of the appeal to the Appeals Commission and had actual notice of the issues - The process was fair - See paragraphs 36 to 46.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - St. Cyr was injured in a workplace accident in 2002 - In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all - All remaining entitlement issues were remitted to the WCB - In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007 - On appeal, St. Cyr asserted that the 2010 panel was bound by the finding made in the 2006 decision that he was unable to continue to work at all - The Alberta Court of Queen's Bench rejected this argument - The 2010 panel determined whether St. Cyr was entitled to full wage replacement benefits for a temporary total disability and whether the position of front desk clerk was suitable employment - It did not determine causation - The issues were different - Accordingly, neither res judicata nor issue estoppel applied - See paragraphs 28 to 35.

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - [See Estoppel - Topic 386 ].

Workers' Compensation - Topic 5609

Compensation - Compensable injuries and disabilities - Temporary total disability - St. Cyr was injured in a workplace accident in 2002 - In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all - All remaining entitlement issues were remitted to the WCB - In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007 - On appeal, St. Cyr asserted, inter alia, that he should have been paid temporary total disability (TTD) benefits from the date that he was laid off work until suitable employment was found - The Alberta Court of Queen's Bench dismissed the appeal - St. Cyr's assertion that he was entitled to TTD until suitable employment was identified was not supported by the Workers' Compensation Act (Alta.) nor the WCB policies that St. Cyr relied on - It was reasonable to pay benefits equivalent to part-time employment at minimum wage until suitable employment was identified - The Appeals Commission decision not to award TTD was reasonable - The medical evidence showed that St. Cyr was able to return to a suitable job with some work restrictions - This was a reasonable interpretation of the Act and policy, reasonably applied to the facts - See paragraphs 59 to 84.

Workers' Compensation - Topic 5623

Compensation - Measure of - Method of calculation - St. Cyr was injured in a workplace accident in 2002 - In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all - All remaining entitlement issues were remitted to the WCB - In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007 - On appeal, St. Cyr asserted, inter alia, that the Appeal Commission had erred in concluding that Ft. McMurray was an appropriate location to determine suitable employment and that suitable employment had to be in the location where he was living, not where he was working at the time of the injury - The Alberta Court of Queen's Bench dismissed the appeal - The Appeals Commission directly addressed this issue, noting that the selection of suitable employment was not a direction to the worker to seek that position, but was the basis chosen for calculating the worker's earning loss - The identified employment did not have to be in the same locale as the worker - The Appeals Commission's conclusion was reasonable and justified - See paragraphs 90 to 92.

Workers' Compensation - Topic 5624.5

Compensation - Measure of - Considerations - "Ability to earn wages" - [See Workers' Compensation - Topic 5623 ].

Workers' Compensation - Topic 7020

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Reconsideration of appeal board decision - [See Administrative Law - Topic 2405 ].

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - St. Cyr was injured in a workplace accident in 2002 - In 2006, the Workers' Compensation Board (WCB) Appeals Commission determined that the accident caused or contributed to St. Cyr's continuing symptoms such that he was unable to return to his date of accident employment and that he was unable to work at all - All remaining entitlement issues were remitted to the WCB - In 2010, a new Appeals Commission decision found, inter alia, that St. Cyr was capable of modified employment from 2002 to 2006 and was not entitled to full wage replacement after March 2007 and that the position of front desk clerk in Ft. McMurray was suitable for estimating his post-accident earning capacity and calculating his wage loss benefit after March 2007 - At issue on St. Cyr's application for judicial review and appeal was the standard of review - The Alberta Court of Queen's Bench rejected St. Cyr's assertion that the court owed the Appeals Commission no deference and that a "more searching standard of review" was required on statutory appeals - The settled standard of review on questions of the interpretation of the Workers' Compensation Act (Alta.) and WCB policies was reasonableness - Even if the second stage of the Dunsmuir analysis was required, the result would be the same - The questions before the Appeals Commission were questions of mixed fact and law - There was a full privative clause because there were no questions of law or jurisdiction - The Appeals Commission had particular expertise and its purpose was to facilitate the workers' compensation system by using its expertise - See paragraphs 47 to 58.

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - [See Workers' Compensation - Topic 7086.1 ].

Cases Noticed:

420093 B.C. Ltd. v. Bank of Montreal (1995), 174 A.R. 214; 102 W.A.C. 214; 128 D.L.R.(4th) 488 (C.A.), refd to. [para. 29].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 29].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 29].

Canada (Minister of Citizenship and Immigration) et al. v. Ishmael (2007), 309 F.T.R. 147; 63 Admin. L.R.(4th) 184; 2007 FC 212, refd to. [para. 37].

Beals v. Saldanha et al., [2003] 3 S.C.R. 416; 314 N.R. 209; 182 O.A.C. 201; 2003 SCC 72, refd to. [para. 38].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 40].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 47].

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. 48].

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86 (Q.B.), refd to. [para. 48, footnote 1].

Lee v. Workers' Compensation Board (Alta.) et al. (2007), 417 A.R. 370; 410 W.A.C. 370; 2007 ABCA 225, refd to. [para. 49].

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. 51].

Dr. Q., Re, [2003] 1 S.C.R. 226; 302 N.R. 34; 179 B.C.A.C. 170; 295 W.A.C. 170, refd to. [para. 51].

Molineaux v. Workers' Compensation Board (Alta.) (2001), 304 A.R. 342; 2001 ABQB 932, refd to. [para. 52].

Perma Clad Exteriors (Edm.) Ltd. et al. v. Workers' Compensation Board (Alta.) et al. (1995), 173 A.R. 29 (Q.B.), refd to. [para. 52].

Lawrence v. Workers' Compensation Board (Alta.) et al. (2002), 326 A.R. 87; 2002 ABQB 834, refd to. [para. 52].

Dot Motor Inns Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2002), 319 A.R. 21; 2001 ABQB 431, affd. (2003), 330 A.R. 194; 299 W.A.C. 194; 2003 ABCA 139, refd to. [para. 52].

Bennett et al. v. Workers' Compensation Board (Alta.) (2002), 315 A.R. 164; 2002 ABQB 96, refd to. [para. 52].

McTavish v. Workers' Compensation Board (Alta.), [1995] A.J. No. 885 (C.A.), refd to. [para. 52].

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. 52].

Elgie v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 464 A.R. 127; 467 W.A.C. 127; 2009 ABCA 277, refd to. [para. 54].

Buckley et al. v. Entz Estate et al. (2007), 401 A.R. 231; 391 W.A.C. 231; 71 Alta. L.R.(4th) 25; 2007 ABCA 7, refd to. [para. 54].

Workers' Compensation Board (Alta.) v. Workers' Compensation Appeals Commission (Alta.) et al. (2005), 371 A.R. 62; 354 W.A.C. 62; 44 Alta. L.R.(4th) 13; 2005 ABCA 235, refd to. [para. 54].

Chauvet et al. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2007), 409 A.R. 17; 402 W.A.C. 17; 76 Alta. L.R.(4th) 242; 2007 ABCA 155, refd to. [para. 54].

Allsop v. Alberta Workers' Compensation Board (Appeals Commission) et al., [2010] A.R. Uned. 579; 2010 ABQB 472, refd to. [para. 56].

Moll v. College of Alberta Psychologists (2011), 510 A.R. 48; 527 W.A.C. 48; 2011 ABCA 110, refd to. [para. 57].

Leon's Furniture Ltd. v. Information and Privacy Commissioner (Alta.) et al. (2011), 502 A.R. 110; 517 W.A.C. 110; 2011 ABCA 94, refd to. [para. 58].

Nabors Canada Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2010), 490 A.R. 121; 497 W.A.C. 121; 324 D.L.R.(4th) 747; 2010 ABCA 243, refd to. [para. 60].

Michailides v. Workers' Compensation Board (Alta.) et al. (1999), 260 A.R. 323; 1999 ABQB 941, affd. (2003), 320 A.R. 313; 288 W.A.C. 313; 2003 ABCA 49, refd to. [para. 61].

Watson v. Workers' Compensation Board (Alta.) et al. (2010), 491 A.R. 307; 2010 ABQB 280, revd. (2011), 502 A.R. 207; 517 W.A.C. 207; 2011 ABCA 127, refd to. [para. 66].

Holmberg v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2011), 505 A.R. 319; 522 W.A.C. 319; 2011 ABCA 173, refd to. [para. 67].

Counsel:

Kenneth W. Penonzek, for the applicant;

Curtis B.R. Craig, for the Workers' Compensation Board;

Sandra Hermiston, for the Appeals Commission.

This appeal and this application were heard by Topolniski, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following memorandum of decision on July 7, 2011.