Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al.

• Jurisdiction: Alberta
• Court: Court of Appeal (Alberta)
• Judge: Slatter, McDonald and Bielby, JJ.A.
• Citation: (2012), 522 A.R. 184,2012 ABCA 150
• Date: 23 May 2012
• Subject Matter: PRACTICE

Thompson Bros. Ltd. v. WCBAC (2012), 522 A.R. 184; 544 W.A.C. 184 (CA)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. MY.098

Thompson Brothers (Construction) Ltd. (appellant/applicant) v. Appeals Commission for the Alberta Workers' Compensation and The Workers' Compensation Board (respondents/respondents)

(1103-0076-AC; 2012 ABCA 150)

Indexed As: Thompson Brothers (Construction) Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) et al.

Alberta Court of Appeal

Slatter, McDonald and Bielby, JJ.A.

May 23, 2012.

Summary:

The Workers' Compensation Appeals Commission ruled that an injured worker was entitled to temporary disability payments. The employer challenged the ruling. The issues before the Appeals Commission included whether the worker had a pre-existing condition that was aggravated by the workplace accident. The employer also raised procedural issues, and argued that there was unfairness in the way the Appeals Commission conducted the hearing.

The Alberta Court of Queen's Bench, in a decision reported at 522 A.R. 118; 544 W.A.C. 118, allowed the appeal in one respect only. Given the inadequacies in the fairness of the hearing, the appeal was allowed on the issue of the employer's right to cost relief. The court remitted the matter of the application of the Board's policy on "Aggravation of a Pre-Existing Condition" to the Appeals Commission for reconsideration. The employer applied for costs and for directions on drafting the formal judgment.

The Alberta Court of Appeal directed that each party bear its own costs of the appeal. The employer was successful in obtaining a new hearing, but on a much narrower basis than it contended for. The court approved the employer's form of judgment that merely recited the outcome of the appeal.

Practice - Topic 5418

Judgments and orders - General - Drawing orders and judgments - [See Practice - Topic 9270 ].

Practice - Topic 6921.1

Costs - General principles - Issue result vs. proceeding result basis - [See Practice - Topic 8326 ].

Practice - Topic 8326

Costs - Appeals - Costs of appeal - General principles - The appellant argued that it was successful on the appeal, and accordingly that it was entitled to costs - The respondent pointed out that the appellant was unsuccessful on most of the issues it argued and that it was only successful on an issue it did not initially raise - The Alberta Court of Appeal directed that each party bear its own costs of the appeal - "Generally costs of an appeal follow the ultimate result, and costs are not usually apportioned on an issue-by-issue basis, although there is a discretion to do that in proper cases ... The Court has a discretion over costs, and can consider that the winning party unsuccessfully argued a number of issues, and can also take into consideration if the winning point was raised by the Court. In this case the appellant was successful in obtaining a new hearing, but on a much narrower basis than it contended for. In the circumstances, it is appropriate to direct that each party bear its own costs of the appeal" - See paragraphs 2 to 4.

Practice - Topic 9270

Appeals - Judgments by appeal court - Formal judgment - Form and content - The appellant presented a form of formal judgment that merely recited the outcome of the appeal: that the decision was set aside and a new hearing was ordered - The respondent presented a form of formal judgment that also recited the outcome of individual issues on which the appellant was not successful - The Alberta Court of Appeal approved the appellant's form of judgment - "The formal judgment is intended to record the outcome of the appeal, and is not intended to replicate what was said in the reasons for judgment, which can speak for themselves ... The appellant's form of judgment states that it may be approved by counsel 'by facsimile or electronic signature'. This proviso is not necessary, as civil practice must keep up with technological advances, and the Court accepts electronic signatures of counsel. Apart from R. 13.19(1)(f) which requires actual signatures on affidavits, the rules generally do not contemplate original signatures" - See paragraphs 5 to 7.

Cases Noticed:

Wilde v. Archean Energy (2008), 429 A.R. 41; 421 W.A.C. 41; 88 Alta. L.R.(4th) 54; 2008 ABCA 132, refd to. [para. 3].

Bowes v. Edmonton (City) et al. (2007), 425 A.R. 123; 418 W.A.C. 123; 86 Alta. L.R.(4th) 47; 2007 ABCA 347, refd to. [para. 3].

Rassell (Bankrupt), Re (1999), 237 A.R. 136; 197 W.A.C. 136; 71 Alta. L.R.(3d) 85; 1999 ABCA 232, refd to. [para. 6].

Lavallee, Rackel and Heintz et al. v. Canada (Attorney General) (2000), 255 A.R. 86; 220 W.A.C. 86; 2000 ABCA 54, refd to. [para. 6].

Apex Corp. et al. v. Ceco Developments Ltd., [2008] A.R. Uned. 101; 2008 ABCA 254, refd to. [para. 6].

Collavino Inc. v. Tihama Development Authority (TDA) an Organ of the Republic of Yemen (2007), 444 A.R. 1; 91 Alta. L.R.(4th) 378; 2007 ABQB 497, refd to. [para. 6].

Counsel:

K.W. Penonzek, for the appellant;

R.C. Goltz, for the respondent, Workers' Compensation Board.

This application was heard by way of written submissions dated May 3 and 11, 2012. Slatter, McDonald and Bielby, JJ.A., of the Alberta Court of Appeal, delivered the following memorandum of judgment, filed at Edmonton, Alberta, on May 23, 2012.