Workers' Compensation Board (P.E.I.) v. Cormier, (2010) 298 Nfld. & P.E.I.R. 328 (PEICA)

• Judge: Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.
• Case Date: March 11, 2010
• Jurisdiction: Prince Edward Island
• Citations: (2010), 298 Nfld. & P.E.I.R. 328 (PEICA)

WCB v. Cormier (2010), 298 Nfld. & P.E.I.R. 328 (PEICA);

    921 A.P.R. 328

MLB headnote and full text

Temp. Cite: [2010] Nfld. & P.E.I.R. TBEd. JN.029

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

(S1-CA-1189; 2010 PECA 10)

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.

June 30, 2010.

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 Appeal Tribunal. The Appeal Tribunal allowed the appeal. The Board applied for leave to appeal.

The Prince Edward Island Court of Appeal restated the test to be met in an application for leave to appeal, as whether the case raised an arguable issue; that is, an issue that could result in the appeal being allowed. The ground that the Board was denied procedural fairness due to an allegation of bias on the part of the IRO and/or medical advisor met the criteria. The court granted leave to appeal on that ground. All other grounds failed to meet the test. Jenkins, C.J.P.E.I., agreed on all matters, except on the issue of standard of review.

Workers' Compensation - Topic 1069

Boards - Jurisdiction - To reconsider, vary, amend or revoke decision - [See Workers' Compensation - Topic 7002 and third Workers' Compensation - Topic 7082 ].

Workers' Compensation - Topic 1082

Boards - Decisions - Issuance of - The Prince Edward Island Court of Appeal, in the context of an application for leave to appeal, commented on the "inordinate length of time" it took in this case to process the worker's claim for compensation - Nearly seven (7) years had elapsed since the date of the initial application - It was not a reasonable amount of time for a worker's compensation claim to be adjudicated upon - The procedures in the Workers' Compensation Act contemplated that the claims of workers would be addressed more expeditiously - As a result and in order to expedite the appeal, the court provided directions - See paragraphs 52 to 53.

Workers' Compensation - Topic 7002

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Jurisdiction - The Workers' Compensation Board of Prince Edward Island sought leave to appeal a decision of the Worker's Compensation Appeal Tribunal (WCAT), pursuant to s. 56.2 of the Workers' Compensation Act - The Prince Edward Island Court of Appeal stated that "[w]hen the Legislature amended the Act in 2001 to establish an impartial and independent tribunal with power to review the decisions of the Board, it did not restrict the review powers of WCAT other than the requirements relating to new evidence ... WCAT has the authority to re-examine the evidence before the Board, interpret the Act, regulations and policies of the Board, and if WCAT decides that the Board erred in any of these matters, to substitute the decision which WCAT considers proper. Additionally, the Legislature provided that a right of appeal from a decision of WCAT exists to this Court on a question of law or jurisdiction" - See paragraphs 33 and 34.

Workers' Compensation - Topic 7006

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Standard of review - [See first Workers' Compensation - Topic 7082 ].

Workers' Compensation - Topic 7008

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Evidence and proof - [See third and fourth Workers' Compensation - Topic 7082 ].

Workers' Compensation - Topic 7081.2

Practice - Appeals to the courts - Leave to appeal - Test or criteria - The Prince Edward Island Court of Appeal stated that, pursuant to s. 56.2 of the Workers' Compensation Act, "an appeal does lie to this Court, with leave, from decisions of WCAT [the Workers' Compensation Appeal Tribunal] on questions of law or jurisdiction. The Act does not explicitly state the criteria for granting leave to appeal" - The criteria set out in Stretch v. Workers' Compensation Board (P.E.I.) (1990) "does not create a very high threshold and appears is no longer consistent with the law in other jurisdictions" - The newly adopted test and criteria to be applied "should now be restated to be whether the applicant's case has raised an arguable issue; that is, an issue that could result in the appeal being allowed" - See paragraphs 14 to 26.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - 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 (IRO) - The Workers' Compensation Appeal Tribunal (WCAT) allowed the appeal - The Prince Edward Island Court of Appeal, Jenkins, C.J.P.E.I., dissenting on this issue, denied leave to appeal on the ground that WCAT erred in law in finding that the standard of review to be applied to the IRO's decision was correctness - "The question that necessarily arises ... is whether there is an arguable issue that the decision in Dunsmuir ... supplants or alters this court's approach in Prince Edward Island (Workers' Compensation Board) v. MacDonald" - Dunsmuir did not indicate that the law relating to the statutory powers of WCAT should be altered from those stated in MacDonald - WCAT applied the standard of review it was directed to apply by MacDonald - Accordingly, the ground of appeal had no chance of success - See paragraphs 30 to 32, 35.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - The Workers' Compensation Board of Prince Edward Island sought leave to appeal a decision of the Worker's Compensation Appeal Tribunal (WCAT), on the ground, among others, that the decision was based on "erroneous findings of fact that are so perverse, and wholly unsupported by the evidence, so as to constitute an error of law" - The Board also argued that WCAT erred in law in giving preference to the opinions of the worker's family doctor without providing any reason or justification in the evidence for doing so - The Prince Edward Island Court of Appeal held that neither of those grounds raised an arguable issue - "WCAT is free, after re-examining the evidence, including medical evidence, to reverse a decision of the Board. WCAT had evidence before it upon which it could draw the inferences and make the conclusions that it made" - See paragraphs 36 to 40.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - A decision on reconsideration by an Internal Reconsideration Officer (IRO) denied the applicant's claim - The claimant appealed to the Workers' Compensation Appeal Tribunal (WCAT) and sought to admit new evidence, including three letters from her family physician - WCAT referred the information back to the IRO - The IRO determined that the information was either a restatement of evidence or irrelevant, and therefore the IRO's decision remained unchanged - WCAT in particular found the letters credible and relevant and accepted the evidence - The Board sought leave to appeal on the ground, among others, that WCAT erred when it reviewed and considered the new evidence - The Prince Edward Island Court of Appeal held that the ground did not raise an arguable issue - "Pursuant to s.56(24) of the [Workers' Compensation] Act, WCAT could '... confirm, vary, or reverse the decision ..' of the Board. This would include the ability to consider the proposed evidence which the Board had rejected. WCAT could reverse the decision of the Board to reject the evidence" - See paragraphs 41 to 46.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - The Workers' Compensation Board of Prince Edward Island sought leave to appeal a decision of the Worker's Compensation Appeal Tribunal (WCAT), on the ground, among others, that WCAT erred in law in giving the "benefit of the doubt" to the claimant - The Prince Edward Island Court of Appeal did not agree that the ground deserved appellate intervention - It was within the domain of WCAT to resolve the issue in favour of the claimant - "WCAT was engaged in an exercise of comparing competing evidence. Its decision demonstrates that it knew of the presence and meaning of the 'benefit of the doubt' provision [s. 17 of the Workers' Compensation Act]. The Board has not demonstrated the presence of an arguable issue that WCAT misinterpreted or misapplied the provision" - See paragraphs 47 to 49.

Workers' Compensation - Topic 7082

Practice - Appeals to the courts - Question of law or jurisdiction - In its application for leave to appeal, the Workers' Compensation Board pleaded that the Workers' Compensation Appeal Tribunal erred in law by prejudging the appeal by making unfounded findings of bias against the Internal Reconsideration Officer and/or the medical advisor - In particular, the Board took issue with the statement in the WCAT reasons 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 held that the ground met the criteria for leave as the issue was an arguable one which could result in the appeal being allowed - "The issue of bias or procedural fairness goes to the jurisdiction of the tribunal and is reviewable by this court" - See paragraphs 50 and 51.

Cases Noticed :

Young v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2009), 276 N.S.R.(2d) 276; 880 A.P.R. 276; 2009 NSCA 35, refd to. [para. 2].

Stretch v. Workers' Compensation Board (P.E.I.) (1990), 86 Nfld. & P.E.I.R. 269; 268 A.P.R. 269 (P.E.I.T.D.), refd to. [para. 15].

Zuidema Farms Inc. v. Gritzfeld et al., [2008] Sask.R. Uned. 207; 2008 SKCA 12, refd to. [para. 18].

R. v. Robinson (J.S.) (2005), 195 Man.R.(2d) 56; 351 W.A.C. 56; 2005 MBCA 69, refd to. [para. 19].

Curtis et al. v. Manitoba Securities Commission (2006), 201 Man.R.(2d) 203; 366 W.A.C. 203; 2006 MBCA 1, refd to. [para. 20].

Lane v. Esdaile, [1891] A.C. 210 (H.L.), refd to. [para. 20].

Amirault et al. v. Westminer Canada Ltd. et al. - see Coughlan et al. v. Westminer Canada Ltd. et al.

Coughlan et al. v. Westminer Canada Ltd. et al. (1993), 125 N.S.R.(2d) 171; 349 A.P.R. 171 (C.A.), refd to. [para. 22].

Geldart v. Workers' Compensation Board (N.S.) (1996), 155 N.S.R.(2d) 51; 457 A.P.R. 51 (C.A.), refd to. [para. 23].

Cape Breton Development Corp. v. Workers' Compensation Appeals Tribunal (N.S.) et al. (2008), 262 N.S.R.(2d) 112; 839 A.P.R. 112; 2008 NSCA 11, refd to. [para. 24].

Pearce v. Workers' Compensation Board (N.S.), [1996] N.S.J. No. 433 (C.A.), refd to. [para. 24].

Hartling et al. v. Nova Scotia (Attorney General) et al. (2009), 286 N.S.R.(2d) 219; 909 A.P.R. 219; 2009 NSCA 130, refd to. [para. 25].

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, consd. [paras. 28, 60].

Workers' Compensation Board (P.E.I.) v. MacDonald (2007), 264 Nfld. & P.E.I.R. 112; 801 A.P.R. 112; 2007 PESCAD 4, consd. [paras. 29, 60].

Statutes Noticed:

Workers' Compensation Act, R.S.P.E.I. 1988, c. W-7.1, sect. 17 [para. 47]; sect. 56.2 [para. 14]; sect. 56(6), sect. 56(17), sect. 56(20) [para. 33]; sect. 56(22), sect. 56(23) [para. 41]; sect. 56(24) [para. 46].

Counsel :

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

Karen Cormier represented herself;

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

This application for leave to appeal was heard at Charlottetown, P.E.I., on March 11, 2010, by Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A., of the Prince Edward Island Court of Appeal. The following judgment and reasons for judgment of the Court were delivered on June 30, 2010, and the following opinions were filed:

Murphy, J.A. (McQuaid, J.A., concurring) - see paragraphs 1 to 55;

Jenkins, C.J.P.E.I., dissenting in part - see paragraphs 56 to 63.