Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al., (2004) 368 A.R. 203 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 01, 2004
• Citations: (2004), 368 A.R. 203 (QB);2004 ABQB 602

WCB v. WCBAC (2004), 368 A.R. 203 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. AU.076

In The Matter Of the Workers' Compensation Act, S.A. 1981, C. W-16, as amended (WCA);

And In The Matter Of a Decision by the Appeals Commission established under the WCA in Respect of the Workers' Compensation Board's ("WCB") Claim File 384 5640.

The Workers' Compensation Board (applicant) v. Appeals Commission and Gary Schumaker (respondents)

(0203 00611; 2004 ABQB 602)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

August 9, 2004.

Summary:

An injured worker (Schumaker) was confined to a wheelchair. He purchased a van. The Workers' Compensation Board paid to have the van modified to be wheelchair accessible. In January 2000, Schumaker sought to take benefit of the Board's revised transportation policy (Policy 04-07) whereby the Board would both purchase and modify vehicles for qualified severely disabled persons. As Schumaker had purchased the van himself, he sought reimbursement of the purchase price from the Board. The Board dismissed the application. The Appeals Commission allowed Schumaker's appeal and upheld that decision upon reconsideration. The Board sought judicial review.

The Alberta Court of Queen's Bench dismissed the application.

Administrative Law - Topic 8844

Boards and tribunals - Capacity or status - To appear on a statutory appeal when its decision is under review - The Appeals Commission allowed a worker's appeal from a decision of the Workers' Compensation Board and upheld that decision on a rehearing of the appeal - The Board did not seek standing to make oral representations at the second hearing but appeared in writing - The Board sought judicial review, arguing that the Appeals Commission erred in failing to provide the Board with an opportunity to make oral submissions before it at its hearing of October 2001 - Historically, the Appeals Commission refused to grant the Board standing to make oral representations before it - However, a July 23, 2001 decision in Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) identified the Board as an interested party in matters decided by the Appeals Commission - The Alberta Court of Queen's Bench held that the Board was well aware of its entitlement to appear and to make submissions - It knowingly forwent its opportunity to appear in person, choosing instead to appear in writing - See paragraphs 29 to 32.

Workers' Compensation - Topic 1071

Boards - Jurisdiction - Policies - Section 3.1 of the Workers' Compensation Act provided that it was the Board of Directors which was responsible for determining the Workers' Compensation Board's (WCB) compensation policy - Section 8 provided that the Appeals Commission was bound by policy determined by the Board of Directors that related to the matter under appeal - On an appeal, the WCB argued that the only relevant intent in setting policy was that of the Board of Directors and that the Appeals Commission erred in embarking on an interpretation of policy without regard to the intent of the Board of Directors - The Alberta Court of Queen's Bench held that it was not for the WCB to direct the Appeals Commission as to how to fulfil its interpretative role, either directly or impliedly, by insisting that the intentions of the WCB, as expressed through advocacy, prevailed - The legislative framework contemplated an independent, neutral, thoughtful consideration of the appeal based on the facts and written law and policy - While the Appeals Commission could consider what the Board of Directors stated was its intention in adopting a given policy, it was not bound by that intention unless it was expressed in the policy itself - Nor was it for the WCB to neuter the function of the Appeals Committee by an expectation that it would simply rubber stamp the subsequently expressed intent of the Board of Directors and ascribe a meaning to legislation and policy consonant with that intent - See paragraphs 63 to 66.

Workers' Compensation - Topic 5512

Compensation - General - Medical aid or treatment or other health related expenses - An injured worker (Schumaker) was confined to a wheelchair - He purchased a van - In 1998, the Workers' Compensation Board paid to have the van modified to be wheelchair accessible - In January 2000, Schumaker sought to take benefit of the Board's revised transportation policy whereby the Board would both purchase and modify vehicles for qualified severely disabled persons - As Schumaker had purchased the van himself, he sought reimbursement of the purchase price from the Board - The Board dismissed the application - The Appeals Commission allowed Schumaker's appeal, concluding that the policy required the Board to provide Schumaker with a vehicle as permanent assistance with his mobility by reimbursing him for the cost of the van - The Appeals Commission upheld its decision upon reconsideration - It found that the applicable policy was the revised policy, effective January 1, 2000, since it was that version of the policy which was in place when the Board made its decision to reject Schumaker's application on February 8, 2000 - The Alberta Court of Queen's Bench dismissed the Board's judicial review application - The decision was not patently unreasonable - See paragraphs 63 to 77.

Workers' Compensation - Topic 7004

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Status of the board to participate in the appeal - [See Administrative Law - Topic 8844 ].

Workers' Compensation - Topic 7018

Practice - Appeals - Review of board's decision by an appeal board or by the courts - Procedure - Oral hearing - [See Administrative Law - Topic 8844 ].

Workers' Compensation - Topic 7124

Practice - Judicial review - Standard of review - An injured worker (Schumaker) was confined to a wheelchair - He purchased a van - The Workers' Compensation Board paid to have the van modified to be wheelchair accessible - In January 2000, Schumaker sought to take benefit of the Board's revised transportation policy whereby the Board would both purchase and modify vehicles for qualified severely disabled persons - As Schumaker had purchaser the van himself, he sought reimbursement of the purchase price from the Board - The Board dismissed the application - The Appeals Commission allowed Schumaker's appeal and upheld that decision upon reconsideration under s. 8(7) of the Workers' Compensation Act - The Board sought judicial review - The Alberta Court of Queen's Bench held that the standard of review was patent unreasonableness - The decision of the Appeals Commission enjoyed the protection of a full privative clause - A reconsideration under s. 8(7) strengthened the privative clause by providing another in-house remedy to the Board - See paragraphs 33 to 62.

Cases Noticed:

Skyline Roofing Ltd. v. Workers' Compensation Board (Alta.) et al. (2001), 292 A.R. 86; 2001 ABQB 624, refd to. [para. 29].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2002), 324 A.R. 180; 44 Admin. L.R.(3d) 1; 2002 ABQB 691, refd to. [para. 31].

Sarcee Gravel Products Inc. v. Workers' Compensation Board (Alta.). - see Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al.

Cape Breton County Municipal Office Employees et al. v. Labour Relations Board (N.S.) et al. (1996), 153 N.S.R.(2d) 161; 450 A.P.R. 161; 40 Admin. L.R.(2d) 232 (S.C.), refd to. [para. 32].

Canadian Union of Public Employees, Local 1545 (Cape Breton County Municipal Office Employees) v. Labour Relations Board (N.S.) - see Cape Breton County Municipal Office Employees et al. v. Labour Relations Board (N.S.) et al.

Medicine Hat (City) et al. v. Wilson et al. (2000), 271 A.R. 96; 234 W.A.C. 96; 2000 ABCA 247, refd to. [para. 34].

Penny v. Workers' Compensation Board (Alta.) (1993), 145 A.R. 20; 55 W.A.C. 20 (C.A.), refd to. [para. 35].

Ramey v. Workers' Compensation Board (Alta.) (1997), 200 A.R. 59; 146 W.A.C. 59 (C.A.), refd to. [para. 35].

Lawrence v. Workers' Compensation Board (Alta.) et al. (2002), 326 A.R. 87; 2002 ABQB 834, refd to. [para. 35].

Crystal Glass Canada Ltd. v. Workers' Compensation Board (Alta.), 2001 ABQB 481, refd to. [para. 35].

Macoon v. Workers' Compensation Board (Alta.) (1993), 135 A.R. 183; 33 W.A.C. 183 (C.A.), refd to. [para. 35].

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. 35].

Baker v. Workers' Compensation Board (Alta.) (1988), 87 A.R. 264 (Q.B.), refd to. [para. 35].

Johannessen v. Workers' Compensation Board Appeals Commission (Alta.) (1998), 215 A.R. 325; 67 Alta. L.R.(3d) 140; 1998 ABQB 72, refd to. [para. 35].

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. 36].

Pasiechnyk v. Workers' Compensation Board (Sask.) - see Pasiechnyk et al. v. Procrane Inc. et al.

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2003), 332 A.R. 342; 2003 ABQB 233, refd to. [para. 40].

Bachmann v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2003), 350 A.R. 14; 2003 ABQB 975, refd to. [para. 40].

Akita Drilling Ltd. v. Workers' Compensation Board Appeals Commission (Alta.) (2003), 351 A.R. 230; 2003 ABQB 1030, refd to. [para. 40].

Buettner v. Workers' Compensation Board Appeals Commission (Alta.) (2004), 352 A.R. 241; 2004 ABQB 15, refd to. [para. 41].

Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609; 318 N.R. 332; 346 A.R. 201; 320 W.A.C. 201; 2004 SCC 23, refd to. [para. 42].

Suncor Inc. v. McMurray Independent Oil Workers, Local No. 1 (1982), 42 A.R. 166; 23 Alta. L.R.(2d) 105 (C.A.), refd to. [para. 49].

United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; 153 N.R. 81; 106 Nfld. & P.E.I.R. 140; 334 A.P.R. 140, refd to. [para. 50].

Toronto (City) et al. 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, refd to. [para. 50].

Ryan v. Law Society of New Brunswick, [2003] 1 S.C.R. 247; 302 N.R. 1; 257 N.B.R.(2d) 207; 674 A.P.R. 207, refd to. [para. 51].

Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al. (2004), 348 A.R. 361; 321 W.A.C. 361; 2004 ABCA 185, refd to. [para. 55].

Health Sciences Association (Alta.) v. David Thompson Health Region - see Health Sciences Association (Alta.) et al. v. Provincial Health Authorities (Alta.) et al.

International Association of Machinists and Aerospace Workers, Flin Flon Lodge No. 1848 v. Hudson Bay Mining and Smelting Co. (1966), 58 W.W.R.(N.S.) 165 (Man. Q.B.), revd. (1967), 59 W.W.R.(N.S.) 472 (Man. C.A.), revd. [1968] S.C.R. 113, refd to. [para. 57].

Canadian Pacific Ltd. v. Matsqui Indian Band et al., [1995] 1 S.C.R. 3; 177 N.R. 325, refd to. [para. 66].

Counsel:

Manoj Gupta (Workers' Compensation Board), for the applicant, Workers' Compensation Board;

Sandra Hermiston (Appeals Commission), for the respondent, Appeals Commission;

Marie T. Strauss (Bishop & McKenzie LLP), for the respondent, Gary Schumaker.

This application was heard on June 1, 2004, by Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 9, 2004.