Norma Melanson Applicant - v. -, 2011 ABQB 367

Court of Queen ’ s Bench of Alberta Citation: Melanson v. Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2011 ABQB 367 Date: 20110607 Docket: 1003 11244 Registry: Edmonton In the Matter of

Section 13.4 of the Workers ’ Compensation Act , R.S.A. 2000, c. W-15 (“ WCA ”) And In the Matter of a Decision No. 2010-33 by the Appeals Commission Established under the WCA in Respect of the Workers’ Compensation Board’s (“WCB”) Claim File No. 529 0652 Between: Norma Melanson Applicant - and - Appeals Commission for Alberta Workers ’ Compensation and the Workers ’ Compensation Board of Alberta Respondents _______________________________________________________ Memorandum of Decision on Costs of the Honourable Mr. Justice Donald Lee _______________________________________________________

[1] In my Reasons for Judgment in Melanson v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011ABQB 104, I dismissed Ms. Melanson’s application for judicial appeal and retained jurisdiction to allow the parties speak to costs within60 days of the decision, dated February 18, 2011. [2] Notably,

section 13.4(13) of the Workers' Compensation Act, RSA 2000, c W-15 (WCA) provides that the Court may makeany award as to the costs of the appeal that it considers appropriate. [3] The Workers’ Compensation Board (WCB) in a letter dated April 6, 2011, indicated that as the successful party in the withinmatter it seeks its Bill of Costs under Column 1,

Schedule “C” of the Alberta Rules of Court. The WCB stated that under the Rules ofCourt a successful party to an application is entitled to costs award against the unsuccessful party, subject to the court’s generaldiscretion: Rules 10.29 and 10.31. Parties Positions Ms. Melanson’s Position [4] On April 15, 2011, a brief written submission regarding costs was presented on behalf of Ms. Melanson through a letter fromher legal counsel requesting the court to consider a number of issues and arguments. [5] Ms.

Melanson argues that while the WCB would meet the definition of a party under Rule 10.28 of the Rules of Court, it isnot a party or “a person who has a direct interest in the matter under appeal” before the Appeals Commission, pursuant to the WCA, s.13.2(6)(a) & (c), nor is it a party in the appeal to the Court of Queen’s Bench, under the WCA, s. 13.4(4) and (6).

She submits that theoverall scheme of the statute requires the WCB to act as a neutral administrator and adjudicator. [6] It is contended that both the WCB and the Appeals Commission are effectively self-represented in this action; and that thiswould not be an appropriate circumstance to award costs to a self-represented litigant as contemplated under Rule 10.31(5) of the Rulesof Court. The counsel’s submission is that the matter involved is complex, particularly the determination of the appropriate standard ofreview. That Ms.

Melanson finds it difficult to understand how her claim dealing with injuries and her ability to work and earn incomewould not be determined on a correctness standard. [7] Ms. Melanson says the court should consider that if the Appeals Commission had expressly mentioned the “but for” test inAthey v Leonati, (SCC), [1996] 3 S.C.R. 458 its decision would have created a greater degree of justification,transparency and intelligibility.

Further, that the relative circumstances of the parties, especially the fact that she has been injured and hasbeen either without work or on reduced income for a significant period should be considered by this court.

She contends that theretroactive identification of a “retail salesperson and sales clerk” position does not translate to obtaining such a position for the period inquestion. [8] She submits that it would be inappropriate for her to pay costs to both the Appeals Commission and the WCB given the factthat the Appeals Commission is reimbursed by the WCB on a quarterly basis. [9] In his letters of May 4 and 27, 2011 which was written after the WCB’s submission on costs, Ms.

Melanson’s counselpointed out that any Order of this court regarding costs should not be a separate order, but should be contained in the substantive Order. The Appeals Commission’s Position

[ 10 ] On April 19, 2011, the Appeals Commission wrote a letter to the court advising that it did not seek costs in its brief and has not changed its position. The WCB’s Position [ 11 ] The WCB replied to Ms. Melanson’s submissions by a letter dated April 28, 2011. In the letter, it pointed out that a proposed form of Order was presented to Ms. Melanson’s counsel with a paragraph stating: “Costs may be spoken to before the Honourable Mr.

Justice Donald Lee within sixty (60) days of the date of this decision.” The reason for this was that the WCB considered it improper to set out an amount of costs without it being spoken to. This was communicated to Ms. Melanson’s counsel, but he insisted that the actual amount of the costs be set out in the Order. [ 12 ] In respect of the WCB standing as a party, it argues that it is incorrect to say that the WCB, as the neutral administrator of the workers’ compensation system, is not a party to the judicial review and appeal.

That its standing before the courts comes from its interest as the administrator who is much affected by the court’s pronouncement as to the proper application of the WCA , WCB Policy and the Regulations. And as such, it has a legitimate interest in the proper

interpretation of this statutory scheme. [ 13 ] Further, the WCB submits that it has a statutory obligation to maintain the accident fund (as well as the reserve fund) funded entirely by employers through the payment of premiums and from which all WCB claims are paid, including payments of retroactive compensation awards made by court decisions on judicial appeals. [ 14 ] The WCB states that it has the statutory right to make submissions before the Appeals Commission as to the proper application of the WCA and WCB Policy: WCA , s. 13.2(6)( c).

That if the WCB has full standing before the Appeals Commission, then it must also have full standing before the court on a judicial review of that decision.

It submits that the WCA expressly permits the WCB to commence a statutory appeal of an Appeals Commission’s decision, and in cases where any other person is the applicant, the WCB is required to be served with the originating notice. [ 15 ] It submits that this court has acknowledged that the WCB is a party that has primary interest in Appeals Commission decisions, that the WCB is the party with “real interest” since it’s decision and policy is that being challenged and that the

interpretations of the WCA and policies will have direct impact on the WCB: Skyline Roofing Ltd v Alberta (Workers’ Compensation Board) , 2001 ABQB 624 at paras 29 , 34, 292 AR 86; Sarcee Gravel Products Inc. v Alberta (Workers’ Compensation Board) , 2002 ABQB 691 , at para 8 , 324 AR 180; and White v The Workers’ Compensation Board, Appeals Commission , 2006 ABQB 359 at paras 6-7 , 400 AR 183. [ 16 ] The description of the WCB as a self-represented litigant is rejected as wrong.

That Rule 10.31(5) of the Rules of Court contemplates individual persons who are parties to an action and represent themselves without legal counsel. The WCB submits that pursuant to WCA , s. 3 it has the capacity and the rights, powers and privileges of a natural person, and has chosen to establish its own legal services department which provided legal representation throughout the judicial review/appeal process. It draws the distinction from the situation where an individual appears in court unrepresented by counsel. [ 17 ] The WCB concludes that its proposed form of Order is appropriate in the circumstances.

Analysis [ 18 ] I note that the WCA provides in

section 13.2(6) (

c) that:–

(6) In the hearing of an appeal under this section, the Appeals Commission ....

c) shall permit the Board to make representations , in the form and manner that the Appeals Commission directs, as to the proper application of policy determined by the board of directors or of the provisions of this Act or the regulations that are applicable to the matter under appeal And in section 1(1) (

d) of the WCA , the “Board” means the Workers’ Compensation Board. In my view, a simple reading and plain

interpretation of the WCA , s. 13.2(6)(

c) support the position of the WCB that it has the statutory right to make submissions before the Appeals Commission as a party. There is no interpretive construction of the role of the WCB as an administrator of the workers’ compensation system and adjudicator that would successfully justify a contrary view. [ 19 ] Further,

section 13.4(1) of the WCA provides that:– The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction. [ 20 ] There is no doubt in my mind that the statutory provision of the WCA, s. 13.4(1) grounds the standing of the WCB in judicial review/judicial appeals of the Appeals Commissions decisions to the Court of Queen’s Bench. This Court has explained in a considerable number of cases how a deprivation or denial of the status of a party to the WCB in this kind of case would create more problems than solutions. The argument of Ms.

Melanson that the WCB meet the definition of a party under the Rules of Court but not under the WCA in respect of proceedings before the Court of Queen’s Bench appears to me as untenable given this provision. [ 21 ] In White , Slatter, J (as he then was) held that:– ... the Board should be named as the primary respondent (para 6). And further observed that:– ...The Appeals Commission may be entitled to make submissions on certain aspects of the standard of review, but often it will be prudent for the Appeals Commission to let the Board argue this issue ...

The Appeals Commission is not one of the adversaries, and should have no interest in the outcome. ... The Board should respond to the appeal, not the Appeals Commission (para 7). [ 22 ] He had earlier noted in Skyline that:– Under this statutory regime, the Appeals Commission should have regard to its function. It is to sit on appeals from decisions of the Board. It should strive to maintain a position if (sic) impartiality as between employers and workers on one hand, and the Board on the other.

In situations when there is no adverse party to present the arguments, it should be the Board that justifies its policies and decisions , not the Appeals Commission (para 34). [ 23 ] In effect, while Ms. Melanson’s argument of a neutral adjudicator role may be applicable to the Appeals Commission as a party in this proceeding, the argument falls and fails when it is directed at the WCB as a party defending or justifying its policies and decisions. [ 24 ] Based on the provisions of the WCA and the various pronouncements of this court in decided cases, I conclude that the WCB:

is a party under Rule 10.28 of the Rules of Court, is a party before the Appeals Commission, pursuant to the WCA, s. 13.2(6)(a) & (c),and is a party in the appeal to the Court of Queen’s Bench, under the WCA, s. 13.4(4) and (6). [25] I agree with the depiction of a self-represented litigant offered by the WCB as accurate. I am of the view that Rule 10.31(5) ofthe Rules of Court contemplates individual persons who are parties to an action and represent themselves without the services of legalcounsel.

In this action, both the WCB and the Appeals Commission as creatures of statute, were represented by legal counsel: see, WCA,ss. 2(1), 3 and 10. It will constitute an unjustifiable stretch of the term if a creature of statute provided with services of legal counsel onjudicial appeal before the court is construed as a self represented litigant. [26] The argument of Ms.

Melanson with reference to the lack of express mention of the common law principles of causation andthe “but for” test in Athey v Leonati, (SCC), [1996] 3 S.C.R. 458, vis-a-vis the effect on the degree of justification,transparency and intelligibility in the Appeals Commission’s decision appears far-fetched to me in relation to the issue of costs aspresently raised. Further, I note that Ms.

Melanson and her legal counsel were also presented with the WCB’s position on the legaleffects of the application of the WCA and WCB Policies in the context of the test for causation under that statutory regime. [27] From the perspective of the provision of the WCA, s. 13.4(13) that the Court may make any award as to the costs of the appealthat it considers appropriate and the nature of the within judicial review/appeal that resulted in this cost matter, it is significantly helpfulto note the statement of the Supreme Court of Canada that in the absence of words to the contrary, "costs" in a statutory enactment (andin the context of administrative law and proceedings) carries the same general connotation as legal costs, that is being for the purpose ofindemnification or compensation: Bell Canada v Consumers' Association of Canada, (SCC), [1986] 1 SCR 190 at 207,17 Admin LR 205. [28] Further, the Courts have held that in considering making an award of costs it is not relevant, subject to legislative direction tothe contrary, that one party may be the Crown or that the party may be represented by salaried lawyers; and that in either case if costshave been incurred in pursuing or defending the action those costs should be considered for indemnification: Canada (Attorney General)v Georgian College of Applied Arts and Technology, 2003 FCA 199 at paras 25-29, 2 Admin LR (4th) 24; Robert W Macaulay & JamesLH Sprague, Practice and Procedure Before Administrative Tribunals (Toronto: Thomson Carswell, 2002) Vol 3 at para 27.3. [29] I do not find any legislative direction in the WCA that costs cannot or should not be awarded to the WCB nor can the WCB bedenied costs because it was represented in this matter by salaried lawyers that work with it.

Section 13.4(13) of the WCA simply givesthe Court the discretion to make any award as to the costs of the appeal that it considers appropriate. [30] Based on the considered facts of this case and the existing case law, I find no reason to deny the WCB its reasonable Bill ofCosts. [31] In the result, no cost is awarded to the Appeals Commission as it seeks none. I order that the WCB is entitled to its costs asthe successful party in the within judicial appeal/review and that this order regarding costs is not a separate Order but forms part of thesubstantive Order.

Applications dealt with in writing with materials filed on April 6, 15, 28; May 4, 27 and June 1, 2011. Dated at the City of Edmonton, Alberta this 7th day of June, 2011.

Donald Lee J.C.Q.B.A. Appearances: Kenneth W. Penonzek Penonzek Kowalchuk for the Applicant Sandra Hermiston for the Respondent, Appeals Commission for Alberta Workers’ Compensation Jason J.J. Bodnar for the Respondent, Workers’ Compensation Board of Alberta