Aminmohamed Shamji Applicant - v. -, 2011 ABQB 307

Court of Queen ’ s Bench of Alberta Citation: Shamji v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2011 ABQB 307 Date: 20110504 Docket: 0803 14048 Registry: Edmonton Between: Aminmohamed Shamji Applicant - and - Workers ’ Compensation Board, Appeals Commission Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice B.A.

Browne _______________________________________________________ INTRODUCTION [ 1 ] The Applicant, Aminmohamed Shamji, has filed an application for judicial review of a March 11, 2008 decision of the Threshold Review Panel (the “Panel”) of the Appeals Commission (the “Commission”) created pursuant to the Workers’ Compensation Act (the “Act”). A 2002 decision of the Commission awarded the Applicant monthly benefits for a respiratory condition. In 2008 the Panel determined that sufficient grounds existed to rehear the matter.

The Applicant requests that the 2008 decision be set aside. [ 2 ] The Respondents are the WCB and the Commission (collectively the “Respondents”). The Commission appeared solely in order to provide submissions for informational purposes.

FACTS [ 3 ] The timeliness of the threshold review is one of the significant arguments on this judicial review. Therefore, the following detailed chronology of events is of critical relevance. 1979 Applicant began working at the University of Alberta Hospital. 1994 Applicant moved to Central Supply at the U of A Hospital. July 1998 Applicant claimed a respiratory condition as a result of exposure to certain chemicals at work.

January 1999 Applicant filed a WCB claim for compensation for his respiratory problems. 1999 to 2000 Applicant was treated and examined for respiratory problems by various doctors, including his family doctor and specialists. November 17, 2000 Dr. Deutscher, medical advisor to WCB, reviewed the medical record and concluded that there was probably no occupational relationship between the Applicant’s asthma and his employment. December 14, 2000 Applicant was informed by WCB case manager Linda Zaplotinsky that his application had been denied.

December 18, 2000 Applicant sought review of the WCB decision by requesting assistance from the Office of the Appeals Advisor on Workers’ Compensation Matters. 2001 to 2002 The application was reviewed by the Claim Services Review Committee (“CSRC”) of the WCB. February 8, 2002 The CSRC upheld the finding that no causal relationship could be established between the applicant’s asthma and his workplace. February 24, 2002 Applicant appealed the decision of the CSRC to the Commission. June 25, 2002 The Commission heard the appeal. The Applicant was represented by counsel.

December 17, 2002 The Commission overturned the decision of the CSRC. It cited WCB Policy 03-01 (Part II, Application 3, Question 2) for the proposition that a causal link is presumed for workers in certain industries who are disabled from an “occupational disease,” unless the contrary is established. It found that since the Applicant’s asthma was established by medical evidence, and no non- work-related cause had been found to explain the asthma, the causal link to work was presumed. The Applicant therefore began receiving WCB benefits. April 30, 2003 The WCB filed a judicial appeal of the Commission’s decision.

The appeal was adjourned sine die to allow the

Commission to prepare and file a record with the Court and review its decision to determine whether reconsideration was warranted. The Commission never filed a record. No further action was taken by either the WCB or the Commission for the next 44 months. January 16, 2007 The WCB wrote a comprehensive letter to the Commission asking if it was “inclined to undertake a reconsideration of this matter under s. 13.1(7)” of the Act. The WCB’s took the position that the Commission erred in applying or interpreting Policy 03-01,

Part II, Application 3. It argued that the policy did not require that a non-work-related cause be identified, and that medical evidence was ample to rebut the presumption of a causal link. March 14, 2007 The Commission wrote to the WCB advising that it had adjourned the application pending determination of a preliminary matter in two other cases which could have bearing on it. The preliminary matter concerned whether the WCB could apply for reconsideration. The Commission eventually determined in the other cases that the WCB could not do so.

October 29, 2007 The Commission wrote to the Applicant (but not his counsel) stating that it had received “an application for reconsideration” from the WCB. It explained that before a rehearing is ordered, the Panel, which is a unit of the Commission, would apply the “threshold test” to see if there were sufficient grounds to proceed with a reconsideration hearing. The Commission explained that the Panel provides a filtering or screening-out mechanism in the interests of efficiency.

The Panel invited both the WCB and the Applicant to make submissions by November 23, 2007 for consideration at a documentary hearing. November 1, 2007 Applicant responded to the Commission in writing that he was unhappy with the steps the Commission was taking. The WCB did not make any further submissions, relying on its initial letter of January 16, 2007. January 1, 2008 The Commission replaced the old Appeal Rules with new Appeal Rules. The new Rules imposed a limitation period of 6 months for bringing applications for reconsideration.

Prior to the new Appeal Rules, there was no stated time limit for applications for reconsideration. March 11, 2008 The Panel conducted a documentary hearing to determine whether or not the Commission should reconsider the December 17, 2002 decision. April 22, 2008 The Panel issued a decision on reconsideration, finding that there were sufficient grounds to proceed to reconsideration. As a result, the Commission rescinded its December 17, 2002 decision and sent the matter back to a new panel of the Commission for rehearing.

October 8, 2008 Applicant filed an application for judicial review of the Panel’s threshold decision. The application was adjourned to arrange a Special Chambers date. The hearing was set for November 4, 2010. ISSUES [ 4 ] The following issues are raised in this judicial review: 1. Did the Panel err in undertaking the threshold reconsideration hearing? 2. Did the Panel - as a matter of

interpretation of the Act and the Rules, or exercise of discretion - err in failing to consider delay in determining whether or not reconsideration was warranted? 3. Did the Panel breach the principles of natural justice/procedural fairness?

RELEVANT PROVISIONS [ 5 ] The Act provides: 13.1(7) The Appeals Commission, at its discretion on the application of a person with a direct interest in the matter, or on its own motion, may reconsider any matter that it has dealt with and may confirm, rescind or amend any decision or order previously made by it.

(8) The Appeals Commission, at its discretion on the application of a person with a direct interest, may reconsider any appeal decision that was made by the members of the board prior to November 1, 1988 and may confirm, rescind or vary the decision. ... [ 6 ]

Part 5 of the Appeal Rules (2008) provides: 5.1

(1) In accordance with

section 13.1(7) and (8) of the Act, on application by a person with a direct interest in a decision made by the Appeals Commission, the Appeals Commission may reconsider a matter it has dealt with, including a question, issue, order, direction or determination that the Appeals Commission has dealt with in a decision.

(2) The application must: .. (

f) meet the time limitations of rule 5.2.

(3) The Appeals Commission may also decide to reconsider a matter it has dealt with on its own motion. ... 5.2

(1) Except when an application for reconsideration is made on the basis of new or unavailable evidence described in rule 5.5(3), a person may make an application under rule 5.1(1) only once in respect of a matter the Appeals Commission has dealt with.

(2) An application for reconsideration must be made to the Appeals Commission under rule 5.1 (

a) within 6 months of the date that the matter the subject of the application was decided, or (

b) in the case of an application based on new or unavailable evidence described in rule 5.5(3), within 6 months of the date the evidence was discovered or became available. ... 5.5

(1) The Reconsideration Threshold Panel must review an application or motion for reconsideration and only decide that a matter must be reconsidered if the application is made in time and the threshold requirements for reconsideration under subrule (2) are met or subrule (3) applies.

(2) The threshold requirements for reconsideration are that: (

a) the decision shows an obvious and important error of law or jurisdiction; (

b) the decision shows an important error of fact, or an error of mixed fact and law, in the decision that affects the decision; (

c) the decision was based on a process that was obviously unfair or unjust... ANALYSIS 1. Did the Panel err in undertaking the threshold reconsideration hearing? A. Standard of Review [ 7 ] The Applicant argues that the question as to whether the Commission could hear the motion is a true jurisdictional question. Such questions are reviewed for correctness: Gahir v. Alberta (Workers’ Compensation Appeals Commission) , 2009 ABCA 59 , 448 A.R. 135 at para. 13 . The Applicant argues that the Act provides that only the worker or the Commission can bring forward a reconsideration.

Therefore, the Panel had no jurisdiction to hear this application initiated at the WCB’s request, and was incorrect in assuming jurisdiction. [ 8 ] The WCB argues that this is not a true jurisdictional issue. Rather, it concerns the Commission’s

interpretation of its home statute.

Interpretation of the Act, whether by the WCB, the Commission or the Panel, is entitled to deference from the Court and therefore the standard of review is not correctness but reasonableness. [ 9 ] In Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 at para. 59 , the majority held that for the purposes of the standard of review, “jurisdiction” is to be interpreted in the narrow sense. True jurisdictional questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

"Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. The majority referred, as an example, to United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485, 2004 SCC 19 in which the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences. [ 10 ] In Nolan v.

Kerry (Canada) Inc. , 2009 SCC 39 , 2 S.C.R. 678, the majority again cautioned reviewing courts against the mistake of labelling a question as one of true jurisdiction when the tribunal is interpreting its own statute: 33 Administrative tribunals are creatures of statute and questions that arise over a tribunal’s authority that engage the

interpretation of a tribunal’s constituting statute might in one sense be characterized as jurisdictional. However, the admonition of para. 59 of Dunsmuir is that courts should be cautious in doing so for fear of returning “to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years.” 34 The inference to be drawn from paras. 54 and 59 of Dunsmuir is that courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness of standard when

interpretation of that statute raises a broad question of the tribunal’s authority.

[ 11 ] It is clear that the Panel had substantive jurisdiction and that it had jurisdiction to proceed on its own motion, which it purported to do. Was it in fact proceeding on its own motion or on the WCB’s motion? Rather than being a jurisdictional question, the issue raised by the Applicant is really whether the Panel erred on the facts in determining that it was proceeding on its own motion. (Arguably, only the Panel could know the answer to that question.) Findings of fact are reviewed for reasonableness: Gahir at para. 13 .

To the extent that the Panel was required to construe s. 13.1(7) and previous Commission decisions, then it was a matter of applying “on its own motion” to the facts of the procedural scenario before it. Again, this would attract a reasonableness standard: Gahir at para. 13 . [ 12 ] In my view, characterizing this first issue as a true jurisdictional question would not be in keeping with the Supreme Court’s admonition to interpret “jurisdiction” in the narrow sense for the purposes of standard of review.

Whether it is characterized as a question of fact or mixed fact and law, the appropriate standard of review is reasonableness. B. Did the Panel reasonably conclude that it was proceeding on its own motion? 1) Argument [ 13 ] The Applicant notes that prior to the 2002 amendments to the Act, the WCB had a right to direct a reconsideration by the Commission. He argues that the 2002 amendments replaced the WCB’s power to order the Commission to reconsider a matter with a statutory right of appeal to the Court of Queen’s Bench: Alberta (Workers’ Compensation Board) v.

Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2005 ABQB 161 , 374 A.R. 336 at para. 19 . The purpose was to increase the independence between the WCB and the Commission. The Applicant argues that the separation of “the Board” and “any person who has a direct interest” in s. 13.4(1) implies that the WCB is not a person with a direct interest.

Since s. 13.1(7) only allows for reconsideration by the Commission on its own motion or on application by a person with a direct interest, the WCB may not apply for reconsideration under this section. [ 14 ] The Respondents concede that the WCB does not have direct authority to apply for reconsideration. However, the administrative scheme created by the legislation contemplates the WCB providing information to the Commission, and the Commission acting upon that information on its own motion. They submit that this is what occurred in this matter, and there was nothing improper about the practice.

The Respondents stress that the

interpretation of the Commission’s home statute is within its exclusive jurisdiction, and its

interpretation of its home statute must be treated with deference by a reviewing court. [ 15 ] The WCB cites Kim Lee v. Appeals Commission of the Workers’ Compensation Board of Alberta (April 17, 2000), 9903 14748 (Alta.Q.B.) at p. 5, line 5: It is up to the Commission when it receives evidence whether a reconsideration hearing should be convened, not the Board. The Board is simply providing information. Then the Commission decides what it will do with that information or evidence and what proceedings will then follow ...

The Commission has, in my view, an unfettered discretion to reconsider any matter, order or decision, made by it under s.13 of its rules of procedure. [ 16 ] The Respondents state that it was common practice in 2003 to review all decisions where an application for judicial review was brought. The Commission argues that it often receives information from the WCB, and it is not required to act on any information, request or direction from the WCB; if it acts, it does so only of its own volition. The Commission notes that the practice of voluntarily reconsidering its own decisions has been approved in Esposito v.

Alberta (Workers’ Compensation Board) , 2009 ABQB 188 : 64 ...The Appeals Commission process of voluntarily reviewing its decisions that are the subject of an application for judicial review serves a useful purpose and is to be encouraged. If the Appeals Commission does decide to reconsider its decision, it may save an applicant the time, expense and delay associated with a formal court hearing... [ 17 ] The Commission states its failure in this matter to trigger its own motion reconsideration automatically in 2003 was a rare occurrence and an oversight.

It says the file got “lost in the shuffle” of the flurry of court applications following the 2002 legislative amendments. 2) Analysis

[ 18 ] The WCB addressed the prospect of a review in its January 2007 letter. Correspondence of March 14, 2007 from the Commission indicates that it was awaiting determination of a preliminary matter in other cases (which matter I accept was the WCB’s standing to bring a reconsideration application).

In the threshold decision, the Panel at para. 7 cited Decision 2007-713 wherein the Commission held that the WCB is not a person with a direct interest in the matter under s. 13.1(7) and therefore is not able to apply for reconsideration, but that s. 13.1(7) does allow the WCB to refer information or evidence to the Commission which may then determine whether or not to reconsider.

The Panel at paras. 11 to 13 referred to both s. 13.1(7) and Appeal Rule 5.1(3) for the proposition that the Commission may decide to reconsider a matter on its own motion. [ 19 ] Although it acknowledged that the WCB had requested reconsideration, there is no suggestion in the Panel’s decision that it felt bound, due to the WCB’s correspondence, to proceed with the threshold hearing. [ 20 ] A decision is reasonable when there is justification, transparency and intelligibility within the decision making process, and when it falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law: Dunsmuir , paras. 47 and 49 . [ 21 ]

Section 13.1(7) grants broad power to the Commission to reconsider on its own motion. The implication of the Applicant’s argument is that the Commission could not decide to proceed on its own motion in a situation where the WCB has suggested reconsideration. This would be a restrictive reading of s. 13.1(7). It would limit the Commission by preventing it from proceeding where the WCB had expressed an interest in a reconsideration. This could potentially pose an obstacle to reconsideration in all cases where the WCB had appealed the subject decision.

Presumably in all of those cases, the WCB would welcome reconsideration by the Commission. It might also artificially hinder the flow of information between the WCB and the Commission. [ 22 ] Further, the reconsideration threshold process itself, if it does not address the merits of the matter, can be viewed as a facet of the Panel’s independent decision whether or not to proceed on its own motion, given that Rule 5.5(2) does not include any criteria which would favour the WCB. [ 23 ] The Panel’s threshold decision in this case is justified, transparent and intelligible.

The result falls within a range of possible, acceptable outcomes. I conclude that the Panel’s position on this issue was reasonable. 2. Did the Panel - as a matter of

interpretation of the Act and the Rules, or exercise of discretion - err in failing to consider delay in determining whether or not reconsideration was warranted? A. Standard of Review [ 24 ] The parties did not raise delay before the Panel, nor did the Panel address it in any fashion in its threshold decision. The Applicant submits that the Commission was obliged to consider delay. [ 25 ] The parties submit that this issue attracts a reasonableness standard of review. I agree. The Act grants broad powers of reconsideration to the Commission.

Section 13.1(3) authorizes the Appeals Commission to make rules governing the practice and procedure applicable to proceedings before it. There are no time limits in the Act pertaining to applications for reconsideration. As of 2008, there is a 6 month limit applicable to applicants for reconsideration (Appeal Rule 5.2). [ 26 ] The question as to whether the Panel - as a matter of

interpretation of the Act and the Rules, or exercise of discretion - erred in failing to address delay attracts a standard of reasonableness: Gahir . B. Did the Panel - as a matter of

interpretation of the Act and the Rules, or exercise of discretion - unreasonably fail to consider delay?

1) Argument [27] The Applicant argues that the Panel was required to consider timeliness at the threshold reconsideration level, and providereasons why it found that it should order reconsideration despite the delay, citing Newfoundland Assn. of Public Employees v.Memorial University of Newfoundland (Fisheries and Marine Institute) (1994), (NL SC), 122 Nfld. & P.E.I.R.164 (S.C.T.D.) in which it was held that time is relevant even in the absence of a statutory time limit. [28] The Applicant filed several Commission appeal decisions which, although distinguishable, do illustrate that timeliness is animportant consideration that should be and has been dealt with by the Commission on a number of occasions in other circumstances.

InDecision No. 2010-618, Docket #30373, the Commission dismissed a worker's appeal after a 6 month requested adjournment and afurther 9 month delay. [29] In Decision No. 2008-203, Docket #23283, the Commission dismissed a worker's appeal where the worker had not taken anystep for 18 months.

In setting out the principles governing dismissal considerations, the Commission stated at para. 30 that timelyadjudication of appeals is based on matters such as concurrency between the date of the accident and medical evaluation of the worker;the risk of lost evidence; and the risk that lengthy delays may raise a presumption of prejudice.

The Commission noted that incompensation cases, the prejudice may be to parties involved, but may also be to the compensation system itself, as well as the public'sconfidence in the administration of justice. [30] In Decision No. 2007-842, Docket #9964, the Commission considered whether to dismiss an appeal after a 20 month delay.The Commission noted that the appeal was in abeyance while the worker contested the Commission’s jurisdiction and sought to have itreverse its preliminary decision.

The Commission did not dismiss the appeal, but set out requirements for the worker in proceeding with ahearing, including that the worker file certain required forms within certain time lines. It held at para. 41 that the over 20 month delaywas “an extremely long period when measured in relation to the time limits found in the Act”.

The Commission also held at para. 42 that“delay of this length undermines one of the key ideas upon which the statutory system governing appeals from the WCB review body isbased – namely, timely adjudication”. [31] In dismissing the appeal in Decision No. 2007-915, Docket # 25951, the Commission again found at para. 26 that 22 months“is an extremely long time when measured in relation to the time limits found in the Act”. [32] The Applicant further argues that the WCB, because of its own actions, is out of time for the avenues of review in this case.Allowing the WCB to circumvent the prescribed processes and time limits by encouraging the Commission to use its own motion powerwould short circuit the legislative design.

The Applicant analogizes this matter to Shuchuk v. Alberta (Workers’ Compensation Board,Appeals Commission), 2007 ABCA 213 in that the Respondents are subverting the purpose of the Act and as such have actedunreasonably. In Shuchuk, the Commission appealed an order of the reviewing court below directing the Commission to reconsider itsdecision to deny benefits to Mr. Shuchuk after a certain time period.

The Court of Appeal upheld the order, finding that theCommission’s decision to limit coverage was unreasonable because it relied on factors that the policy in question indicated were to beused to expand, not limit, coverage: Shuchuk, para. 47. [33] The Applicant also submits that it is absurd to impose time limits on a “person with a direct interest” who has a statutory rightto apply for reconsideration, but at the same time to give effect to the wish of the WCB, which has no standing, to obtain reconsiderationwith no regard to timeliness. [34] The Commission notes that s. 13.1(7) provides that it may reconsider any matter that it has dealt with.

Section 13.1(8)authorizes the Commission to reconsider any matter prior to 1988 that the WCB decided on appeal. The Commission states that itregularly reconsiders matters dating back to the 1950s and 60s. It takes the position that the Act and Appeal Rules make clear that itspower to reopen old matters on its own motion is broad and unfettered by time constraints.

The WCB argues that the Commission’sability to reopen any of its decisions is necessary in the administrative scheme of Workers Compensation benefits. [35] The Commission further explains that the reconsideration threshold process is a preliminary assessment of whether a mattershould be reheard. It notes that where a decision to order a rehearing is made, the parties are still provided the full opportunity to arguethe merits of the case at the new hearing. The Applicant did not raise the issue of delay in his letter to the Commission dated November

1, 2007, nor at any time prior to the Panel’s decision. [ 36 ] The Commission states that the time limits set out in the Appeal Rules do not apply to applications filed prior to the coming into force of the new Appeal Rules on January 1, 2008. It cites as an example Decision No. 2008-992, Docket # 9676, in which the Commission allowed a worker’s application for reconsideration even though it was filed more than 5 years after the decision.

The Commission stated at para. 15: Retrospective application of the new Appeals Rules restricting an appellant’s right to seek reconsideration, would limit an appellant’s appeal rights without providing prospective appellants with effective notice of the changes made by the Appeals Commission to its rules. [ 37 ] The WCB submits that neither the Act nor the Appeal Rules impose any timeliness requirements on the Commission. The Commission has not interpreted the legislation or the Rules to oblige it to consider delay, and its

interpretation is subject to the standard of reasonableness. [ 38 ] The WCB argues that the time limits contained in the Appeal Rules on their face are not applicable to reconsiderations on the Commission’s own motion and have not been interpreted that way by the Commission. It interprets Rules 5.1 and 5.2 as imposing a 6 month time limit on interested persons, not on the Commission on its own motions. The Commission is addressed separately in Rule 5.1(3).

The WCB notes that Rule 5.2, dealing with time limits, specifically refers to “an application” and makes no reference to a “motion.” Rule 5.5(1), dealing with criteria for reconsideration, refers to both “application or motion,” but applies the timeliness requirement only to an “application.” The WCB argues that this reading would also be consistent with ss. 13.1(7) and (8) of the Act , which allow the Commission to reconsider decisions that are decades old. [ 39 ] The WCB’s position is that there was no abuse of discretion because nothing in the legislation or rules suggests that the Commission had to consider timeliness when acting on its own motion.

The administrative benefits scheme requires that the Commission be able to revisit and reopen any previous decision to ensure that recipients of benefits qualify for them on an ongoing and continuous basis. 2) Analysis [ 40 ] There are a number of difficulties with the Respondents’ arguments on this issue. The Commission has determined that the Appeal Rules do not have retroactive effect to applications filed prior to 2008.

That would only be relevant in this case if this were an application by the WCB; the Respondents have taken the position that is not the case. [ 41 ] As for s. 13.1(8) which authorizes the Commission to reconsider any matter prior to 1988 that the WCB had decided on appeal under the prior regime, it must be noted that s. 13.1(8) only contemplates applications by persons with a direct interest, and not motions of the Commission.

The WCB argues that the administrative benefits scheme requires that the Commission be able to revisit and reopen any previous decision to ensure that recipients of benefits qualify for them on an ongoing and continuous basis. The fact that the only applications contemplated in s. 13.1(8) are those of “persons with a direct interest” (which wording was ultimately determined by the Commission not to include the WCB) suggests that the provision was intended primarily for the benefit of workers.

The reconsideration in this case was not for the benefit of the Applicant, as it put in issue his entitlement to benefits already received. [ 42 ] The WCB argues that Rule 5.5(1), dealing with criteria for reconsideration, refers to both “application or motion,” but the time limit only applies to an “application.” The WCB argues that this is consistent with ss. 13.1(7) and (8) of the Act , which allows the Commission to reconsider decisions that are decades old.

However, given the wording of s. 13.1(8) as noted above, the 6 month time limit is a curious limitation on the “persons with a direct interest” who would rely on s. 13.1(8). [ 43 ] The Respondents argue that timeliness could be raised at the substantive reconsideration hearing. However, this ignores the waste of time and resources and needless stress on a worker if delay could be determinative on the threshold hearing. In this particular case, the 2002 decision (resulting in benefits) was rescinded over two years ago, pending the rehearing which has not yet occurred.

To the extent that Respondents’ approach might result in a cessation of benefits pending rehearing, it is inconsistent with the fundamental purpose of the Act, being to provide compensation.

[44] The particular facts of this matter are relevant as well. As a result of s. 13.1(7) the Commission has the authority to reconsiderany past decision upon application by an interested party or on its own motion. Although I have found that the WCB’s involvement ininitiating this reconsideration did not render the Panel’s decision to proceed on its own motion unreasonable, that circumstance doescolour the Panel’s failure to address delay. The Applicant could not, after 2008, have brought an application for a reconsideration. TheWCB had no standing to bring such an application; that became clear in 2007.

Although there is some suggestion that the Commissionmight initially have chosen to contemplate reconsideration back in 2003, the matter had “fallen between the cracks” and there is nothingon the record to indicate that the intention to reconsider would have revived without the WCB’s submission. [45] Generally, the Act is to be given a broad liberal

interpretation, which allows compensation to be provided to as many workersin as many circumstances as the legislative scheme will reasonably permit: Shuchuck at para. 46. Workers' compensation schemes are toprovide compensation to injured workers quickly and without court proceedings: Pasiechnyk v. Saskatchewan (Workers' CompensationBoard), (SCC), [1997] 2 S.C.R. 890 at para. 27. It was clearly the intention of the Legislature that matters pertaining toworkers' injuries be dealt with expeditiously and finally by the Commission: Alberta (Workers’ Compensation Board) v.

Alberta(Appeals Commission for Alberta Workers’ Compensation) at para. 47. Nevertheless, it is no secret that the workers’ compensationregime in Alberta is complex and that its complexity can lead to a multiplicity of proceedings and inordinate delay. [46] The Commission is master of its own procedure: s. 13.1(3). It has instituted Appeal Rules which ostensibly attempt topromote the efficiency sought by the Legislature by imposing a six month time limit on applications for reconsideration: Rule 5.1(2).This encourages not only timeliness, but also certainty and finality.

The criteria for reconsideration include that an application has beenbrought in time: Rule 5.5(1). These Rules reflect the Commission’s own recognition of the importance of timeliness to thereconsideration process in the greater compensation scheme.

This is consistent with the Commission’s approach in appeals whereworkers’ appeals have been dismissed for delay. (The Act itself imposes a one year time limit on filing of appeals: s. 13.2(8)). [47] I have considered the Commission’s own recognition of the importance of timeliness and efficiency, the fundamentalprinciples underlying the Act, the 6 month time limit imposed on applicants, and the manner in which this particular reconsiderationmotion arose before the Commission. There may be good reason for the Commission itself not to be bound by a strict time limit such asthe one it has imposed on applicants.

It is unnecessary for this Court to address whether consideration of delay is necessary in all caseswhere the Commission initiates a threshold hearing. However, I find that the delay in this case was a factor which the Panel could notreasonably ignore in determining under Rule 5.5(1) whether the matter “must be reconsidered”. [48] The Panel did not address the delay in directing a rehearing of this matter. That failure is fundamental that renders thedecision unreasonable. 3.

Did the Panel breach the principles of natural justice/procedural fairness? [49] In light of the foregoing, it is unnecessary to decide the remaining issue. CONCLUSION [50] The decision of the Panel dated March 11, 2008 is set aside and the matter remitted to the Panel to consider delay indetermining under Rule 5.5(1) whether the matter must be reconsidered. Heard on the 4th day of November, 2010. Dated at the City of Edmonton, Alberta this 4th day of May, 2011.

B.A. Browne J.C.Q.B.A. Appearances: Micah J. Field for the Applicant Curtigs Craig for the Respondent Workers’ Compensation Board Sandra R. Hermiston for the Respondent Appeals Commission