Workers' Compensation Board (P.E.I.) v. Cormier, (2011) 303 Nfld. & P.E.I.R. 195 (PEICA)

• Judge: Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.
• Case Date: September 21, 2010
• Jurisdiction: Prince Edward Island
• Citations: (2011), 303 Nfld. & P.E.I.R. 195 (PEICA)

WCB v. Cormier (2011), 303 Nfld. & P.E.I.R. 195 (PEICA);

    941 A.P.R. 195

MLB headnote and full text

Temp. Cite: [2011] Nfld. & P.E.I.R. TBEd. JA.004

Workers' Compensation Board of Prince Edward Island (appellant) v. Karen Cormier (respondent)

(S1-CA-1189; 2011 PECA 1)

Indexed As: Workers' Compensation Board (P.E.I.) v. Cormier

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.

January 7, 2011.

Summary:

Cormier left work on sick leave, claiming that her illness was caused by "sick building syndrome". The Workers' Compensation Board denied her claim, first by a decision of an entitlement officer, and subsequently by a decision on reconsideration by an Internal Reconsideration Officer (IRO). Cormier appealed to the Workers' Compensation Appeal Tribunal (WCAT). The WCAT reversed the decision of the IRO and concluded that Cormier's health issues arose out of, and in the course of, her employment and were therefore compensable by the Board. The Board applied for leave to appeal. In one ground, the Board took issue with the statement of the decision that "physicians in the employ of the Board could reasonably be seen to have a slight bent towards a finding that might help their employer".

The Prince Edward Island Court of Appeal, in a decision reported at (2010), 298 Nfld. & P.E.I.R. 328; 921 A.P.R. 328, granted leave to appeal on the ground that the issue of bias on the part of the IRO and/or medical advisor was an arguable issue and was reviewable by the court.

The Prince Edward Island Court of Appeal, McQuaid, J.A., dissenting, allowed the appeal. The impugned statement in WCAT's decision demonstrated a reasonable apprehension of bias. The court ordered that the decision rendered by WCAT be declared void and the matter be remitted back to WCAT to be reheard by a new panel.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Prince Edward Island Court of Appeal stated that "[t]he rule against bias applies to administrative boards exercising adjudicative functions ... Bias has been described as being 'a lack neutrality' on the issue to be decided. Impartiality has been described 'as a state of mind in which the adjudicator is disinterested in the outcome and is open to persuasion by the evidence and submissions.' ... It is not necessary to show an 'individual is biased or that a person might be influenced or a certain position be repudiated.' ... Whether a decision-maker has crossed the line depends on an assessment of the particular administrative, legal and factual contexts" - Two factors were of particular importance - The first was the nature of the issues in dispute at the hearing - The second was the extent to which the decision-maker could be said to be committed to a definitive view on the issue to be decided - The tone and content of a decision might convey a reasonable apprehension of bias - See paragraphs 12 to 21.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The Workers' Compensation Appeals Tribunal (WCAT) found that the conflicting medical evidence was the key to its decision to overturn the decision of the Board and to determine that the claimant's illness was attributable to the workplace - A consideration within its reasoning was that the Board physicians "could reasonably be seen to have a slight bent towards a finding that might help their employer" - The Board took issue with that statement - The Prince Edward Island Court of Appeal found that the impugned statement demonstrated a reasonable apprehension of bias - The impugned statement was made without any foundation on the record - The WCAT reasons raised a reasonable apprehension that the panel members were closed to granting equal weight to the medical opinions of the Board doctors - "As a result of a reasonable apprehension of bias being present, any decision made by WCAT would be tainted, and consequently WCAT would have exceeded its jurisdiction" - Accordingly, the court allowed the appeal and ordered that WCAT's decision be declared void and the matter be remitted back to WCAT to be heard by a panel comprised of three new members - See paragraphs 22 to 29.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - [See second Administrative Law - Topic 2088 and Workers' Compensation - Topic 7124 ].

Workers' Compensation - Topic 7086.1

Practice - Appeals to the courts - Scope of appeal or review - [See Workers' Compensation - Topic 7124 ].

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - The Workers' Compensation Board denied the worker's claim, first by a decision of an entitlement officer, and subsequently by a decision on reconsideration by an internal reconsideration officer - The Workers' Compensation Appeal Tribunal (WCAT) allowed the appeal - The Board took issue with the statement of the WCAT's decision that "physicians in the employ of the Board could reasonably be seen to have a slight bent towards a finding that might help their employer" - The Prince Edward Island Court of Appeal stated that "[p]rocedural fairness goes to the jurisdiction of WCAT as a tribunal, and is reviewable as a question of law. When reviewing a matter which involves a challenge made on a ground of bias, ... the applicable standard of review is correctness. A court must determine whether the decision maker adhered to the principles of procedural fairness or not and, in doing so, the court is to give no deference to the decision-making body ... . The Pushpanathan/Dunsmuir standard of review analysis does not affect the standard of review applicable to the issue of bias" - See paragraph 11.

Cases Noticed:

Sketchley v. Canada (Attorney General), [2006] 3 F.C.R. 392; 344 N.R. 257; 2005 FCA 404, refd to. [para. 11].

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. 11].

Histed v. Law Society of Manitoba (2006), 208 Man.R.(2d) 44; 383 W.A.C. 44; 2006 MBCA 89, 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. 11].

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. 11].

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. [paral 11].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2003] 2 S.C.R. 259; 309 N.R. 201; 2003 SCC 45, refd to. [paras. 12, 40].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, refd to. [para. 13].

Bennett et al. v. British Columbia Securities Commission et al. (No. 3) (1994), 48 B.C.A.C. 56; 78 W.A.C. 56; 30 Admin. L.R.(2d) 283; 1994 CanLII 912 (C.A.), refd to. [para. 15].

R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 K.B. 256, refd to. [para. 17].

Dulmage and Sommer v. Police Complaints Commissioner (1994), 75 O.A.C. 305; 21 O.R.(3d) 356 (Div. Ct.), refd to. [para. 17].

Metropolitan Properties Co. v. Lannon, [1969] 1 Q.B. 577 (C.A.), refd to. [para. 17].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [paras. 18, 42].

Concordia Hospital v. Manitoba Nurses' Union, Concordia Nurses Local 27 (2004), 191 Man.R.(2d) 141; 134 L.A.C.(4th) 353 (Q.B.), refd to. [para. 20].

Toromont Industries Ltd. v. International Union of Operating Engineers, Local 904 (2008), 280 Nfld. & P.E.I.R. 157; 859 A.P.R. 157 (N.L.T.D.), refd to. [para. 21].

2747-3174 Québec Inc. v. Régie des permis d'alcool du Québec et autres, [1996] 3 S.C.R. 919; 205 N.R. 1, refd to. [para. 40].

Workers' Compensation Board (P.E.I.) v. MacDonald (2007), 264 Nfld. & P.E.I.R. 112; 801 A.P.R. 112; 2007 PESCAD 4, refd to. [para. 61].

Authors and Works Noticed:

Brown, Donald J.M., and Evans, John M., Judicial Review of Administrative Action in Canada, vol. 3, c. 11-48 [para. 19].

Ison, Terrence G., Workers' Compensation in Canada (2nd Ed. 1989), pp. 215, 216 [para. 59].

Régimbald, Guy, Canadian Administrative Law (1st Ed. 2008), p. 33 [para. 14].

Counsel:

Brian L. Waddell, Q.C., for the appellant;

Maureen A. Peters, for the respondent;

Michael G. Drake, for the Workers' Compensation Appeal Tribunal.

This appeal was heard at Charlottetown, P.E.I., on September 21, 2010, by Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A., of the Prince Edward Island Court of Appeal. In written reasons by Murphy, J.A., concurred in by Jenkins, C.J.P.E.I., the Court of Appeal delivered the following judgment, dated January 7, 2011:

Murphy, J.A. (Jenkins, C.J.P.E.I., concurring) - see paragraphs 1 to 31;

McQuaid, J.A., dissenting - see paragraphs 32 to 66.