Tony Patrus Appellant - v. -, 2011 ABQB 523

Court of Queen ’ s Bench of Alberta Citation: Patrus v. Alberta (Workers ’ Compensation Board, Appeals Commission), 2011 ABQB 523 Date: 20110823 Docket: 0901 13580 Registry: Calgary Between: Tony Patrus Appellant - and - The Workers Compensation Board and The Appeals Commission for the Alberta Workers ’ Compensation Board Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice P.M.

Clark _______________________________________________________ Introduction [ 1 ] Tony Patrus appeals a decision of the Appeals Commission (“AC”) for the Alberta Workers’ Compensation Board (“WCB”, “Board”). He appeals to this Court pursuant to the right of appeal provided by

section 13.4 of the Workers’ Compensation Act (“ WCA ”).

[ 2 ] In the decision under appeal, the AC (1) upheld the WCB’s finding that Mr.

Patrus was employable, and on that basis held that he was not entitled to Temporary Total Disability (“TTD”) benefits effective September 23, 2006 (with the exception of temporary periods between September and December, 2006 related to follow-up surgeries); (2) rejected the WCB’s finding that he was employable as a video store clerk, and consequently held that it was inappropriate to estimate his post-accident earning capacity on the basis of the earnings of a video store clerk; (3) remitted the matter back to the Board, directing that the WCB identify a suitable job based on Mr.

Patrus’s ability, “that is, based on the worker’s physical, vocational, social and psychological factors”: AC Decision at para. 57; and (4) by way of interim relief, ordered that Mr. Patrus’s post-accident earning capacity be based on minimum wage (instead of the wages of a video store clerk) until the WCB identifies a new, suitable position to use for estimating earning capacity: AC Decision at para. 58. [ 3 ] Mr. Patrus appeals the finding of employability generally, the remitting of the matter back to the WCB, and the interim order that reduces his benefits based on an imputed income at minimum wage.

He does not appeal the finding that he is incapable of working as a video store clerk. Facts [ 4 ] On December 4, 2004, Mr. Patrus’s left hand was amputated at work while operating a saw. His hand was surgically reattached in a twelve-hour surgery, but despite two years of painful rehabilitation and follow-up surgeries, Mr. Patrus never regained much use of it. At the time of the accident Mr. Patrus was engaged in the only type of employment for which he was qualified: unskilled manual labour.

Due to the loss of meaningful use of his left hand, he is now unqualified for that type of work too. [ 5 ] During the period of his recovery and rehabilitation the WCB paid TTD benefits that were related to his previous income. However, in 2006, after performing vocational assessments and providing some return-to-work services, the WCB determined that Mr. Patrus was again employable in some reduced capacity, and on that basis discontinued his TTD benefits.

To determine his new level of benefits, they imputed an income to him based on their estimate of his reduced earnings capacity and paid him a reduced benefit based on the difference between the benefits payable for total disability and the income they imputed to him. The imputed income was based on working in the position of video store clerk. The result was the loss of most of his benefit. [ 6 ] It is not disputed that Mr. Patrus suffers from significant cognitive disabilities and psychological difficulties that restrict his potential for academic and vocational achievement. Mr.

Patrus is dyslexic, his English skills are limited, and according to the report of one of the psychologists who worked with him, as adopted by the AC, he has a “severe learning disability”. The AC summarized Mr. Patrus’s present situation by noting his “permanent disability, [and] the significant barriers to return to work including the worker’s vocational, cognitive and academic limitations, functional illiteracy, severe learning disability, and limited occupational skills”: AC Decision at para. 58. [ 7 ] In short, Mr.

Patrus is no longer capable of doing the only kind of work he was ever qualified to do, but the WCB and the AC say he is capable of “suitable employment” and have reduced his benefits accordingly. Issues [ 8 ] As a preliminary matter it is necessary for me to consider whether this appeal is properly before this Court, or whether the

matter should have been brought by way of judicial review. I will then consider the standard of review that applies. Finally I will apply the standard, considering each of the Appellant’s grounds of appeal. Issue 1: Judicial appeal vs. judicial review [ 9 ] The first issue is whether the Appellant has proceeded in the correct manner by initiating this appeal instead of seeking judicial review. This requires me to consider the statutory authority for the appeal and to characterize the decision maker and the decision to determine what kinds of issues are raised: see Sarcee Gravel Products Inc. v.

Alberta (Workers’ Compensation Board) , 2006 ABQB 56 , 394 AR 74 at para. 13 . [ 10 ] The AC is constituted under

Part 2 of the WCA . It is independent from the WCB and is composed of commissioners who represent the interests of employers and commissioners who represent the interests of workers. It is a specialized body with expertise in interpreting and applying the WCA and the policies made by the WCB board of directors. The AC is empowered by WCA

section 13.1 to hear appeals from decisions of the WCB’s review bodies. Hearings before the AC are hearings de novo . The AC reconsiders all of the evidence that was before the WCB, and accepts new evidence from the parties. The AC may then confirm, reverse, or vary the decision or determination under appeal, or it may refer the matter back to the WCB for further action or decision, with or without directions: WCA s 13.2.

Section 13.1 also includes a privative clause that is limited, presumably, by the right of appeal granted by

section 13.4, the relevant portions of which state: Appeal 13.4(1) 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.

(2) An appeal must be commenced by application.

(3) An application must include a concise statement of (

a) the grounds on which the decision is being appealed, and (

b) the nature of the relief claimed. ...

(8) The Court may receive any further evidence that the Court considers is necessary in order to determine a question of law or jurisdiction. ...

(11) On the hearing of the appeal the Court may (

a) confirm or set aside the decision of the Appeals Commission or any part of it, and (

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate.

(13) The Court may make any award as to the costs of the appeal that it considers appropriate. [11]

Section 13.4 (1) of the WCA provides that an appeal from a decision of the AC lies to this Court only on questions of law orjurisdiction. The Court of Appeal has confirmed that questions of fact and of mixed fact and law must be heard by way of judicial reviewrather than by a

section 13.4 appeal: Alberta (Workers’ Compensation Board) v. Alberta (Workers’ Compensation Board AppealsCommission), 2005 ABCA 276, 371 AR 318 (“Davick”) at paras. 2, 3, 18, 71, 77; Buckley v. Entz Estate, 2007 ABCA 7, 401 AR 231 atpara. 13; Lee v. Alberta (Workers’ Compensation Board, Appeals Commission), 2007 ABCA 225, 417 AR 370 at paras. 11, 13-16. [12] The courts have noted that in some cases it can be unclear which procedure is the correct one (and sometimes both areapplicable where there are multiple issues), as a result of which “cautious” counsel are increasingly launching appeals under

section 13.4alongside applications for judicial review in the same originating documents: Buckley at para. 13; White v. Alberta (Workers’Compensation Board, Appeals Commission), 2006 ABQB 359, 400 AR 183 at para. 5; Foster v.

Alberta (Transportation & SafetyBoard), 2006 ABCA 282, 397 AR 82 at para. 19. [13] On the other hand, there is abundant authority for the proposition that where a statutory appeal is available and it wouldprovide an adequate remedy, and absent exceptional circumstances, courts should and will exercise their discretion to refuse to grantjudicial review: David Jones and Anne de Villars, Principles of Administrative Law, 5th ed (Toronto: Thomson Reuters, 2009) at 621-6;Harelkin v.

University of Regina, (SCC), [1979] 2 SCR 561, 96 DLR (3d) 14; Foster at para. 14. [14] The Court of Appeal, considering the “long line of case law” on the subject, noted that “[i]f there is a clear right of appeal,and the appeal would be an adequate remedy, only in very exceptional circumstances will the courts grant judicial review instead.”:Merchant v. Law Society (Alberta), 2008 ABCA 363, 440 AR 377 at para. 3.

The Court has also noted that a relevant appeals provision“must apply to all appeals complaining of errors of law or jurisdiction, even if the appeal also alleges that other types of errors (fact ormixed fact and law) were made by the Board.”: Foster at para. 17. [15] I find that this appeal does raise questions of law and therefore conclude that a

section 13.4 appeal was the correct avenue forthe Appellant to pursue. Moreover, even if the Respondents are right to the extent that part of the complaint is of a factual nature, theAppellant continues to have the right to launch an appeal under the statute because of the errors of law discussed below. Parties’ positions [16] The Appellant argues that the AC decision is based on errors of law and/or jurisdiction and is therefore subject to appeal tothis Court. He lists three grounds of appeal.

First, the Appellant pleads that it was an error of law or a failure to exercise jurisdiction torefuse to consider his reduced cognitive abilities, language deficits, and learning and academic background in determining whether or nothe was capable of competitive employment. Second, he pleads that it was an error of law or a failure to properly exercise jurisdictionwhen the AC refused to consider evidence that the Appellant had been granted assured income for the severely handicapped (AISH) bythe Alberta government.

Third, the Appellant pleads that it was an error in law to find that he was capable of other suitable work whenthis finding was unreasonable based on the evidence. [17] The Appellant says that he is not attacking the factual findings of the WCB or the AC, but rather the legal test that was usedto arrive at those findings. [18] The Respondents argue that the primary issue in this appeal is whether the Appellant is eligible for certain workers’compensation benefits, which involves the application of workers’ compensation policies to factual scenarios to determine entitlement tobenefits—a question of fact or at most mixed fact and law.

They use this characterization of the issue to argue that the matter is notproperly before this Court, as a

section 13.4 appeal cannot consider questions of fact or questions of mixed fact and law. Law and analysis

Grounds 1 and 2 [19] As the first two grounds are similar and raise similar issues, I consider them together. [20] Similar facts and issues were engaged in Gahir v. Alberta (Workers’ Compensation Appeals Commission), April 25, 2007,Action No. 0603-08473 (unreported) (“Gahir QB”). Gahir was upheld on appeal, but the Court did not comment on this aspect of thecase: 2009 ABCA 69; 2009 ABCA 59 , 448 AR 135 (“Gahir CA”). In Gahir QB, this Court found that the AC made findings offact with respect to the condition of the applicant and then selected the applicable WCB policy to determine entitlement.

The Courtcharacterized these finding as issues of mixed fact and law. However, it appears that was not the approach of the AC in this case. In thiscase the AC selected and interpreted a policy to arrive at an entitlement decision. It is not the basic findings of fact with respect to thecondition of the Appellant with which he takes issue; it is the

interpretation of the policy that allowed the AC to arrive at the derivativefinding that he was capable of working. [21] The question of whether a particular benefit is available to a particular worker was held by the Alberta Court of Appeal to bea question of the

interpretation and application of policy. The Court held that selection and application of policy are questions of mixedfact and law: Buckley v. Entz Estate, 2007 ABCA 7, 401 AR 231 at para. 27, citing Alberta (Workers’ Compensation Board) v. Alberta(Workers’ Compensation Appeals Commission), 2005 ABCA 235, 371 AR 62 at paras. 22, 24-5 (“Schumaker”). [22] It is important to note that the Schumaker Court did not characterize the

interpretation of WCB policy as a question of mixedfact and law. In fact, it implicitly allowed that

interpretation—where

interpretation is required—is a question of law, but held that thedeferential standard applied nonetheless when the

interpretation is deep within the expertise of the AC: Schumaker at para. 26. Theimmediate issue here is whether the issues raised by the appeal raise questions of law, issues within this Court’s jurisdiction. [23]

Interpretation generally has always been a question of law. This holds for

interpretation of statutes, of course, but also forinterpretation of documents generally whether they be contracts, insurance policies, or even advertisements. Though not referred to bythe parties, the following authorities confirm this principle: R. v. International Vacations Ltd. (1980), (ON CA), 33OR (2d) 327, 124 DLR (3d) 319 at para. 8 (CA); Alberta Giftwares Ltd. v. R., (SCC), [1974] SCR 584, 36 DLR (3d)321. With respect to the

interpretation of WCB policies in particular, and again, though not cited by the parties, I note the comments ofthe Nova Scotia Court of Appeal in which they characterize the policies of workers’ compensation boards as comparable to subordinatelegislation and having the force of law: Guy v. Nova Scotia, 2008 NSCA 1, 68 Admin LR (4th) 314 at para. 14. It follows that theirinterpretation raises questions of law. This accords with the analysis of the Alberta Court of Appeal in Shuchuk v. Alberta (Workers’Compensation Board Appeals Commission), 2007 ABCA 213, 409 AR 321, in which the Court upheld (at para. 22) a chambers judge’sdecision that the

interpretation of WCB policy involved extricable issues of law. At paragraph 32 the Court said that ... certain questions involving the

interpretation of the Policy ... may be extricated as legal questions. Policy

interpretation is similar tointerpretation of legislation or terms of a contract, and questions involving the meaning of written words in a general sense are normallyconsidered to be issues of law. Even when the answer to a word’s meaning is somewhat dependant on a contextual analysis, such asworkplace injury, the issue remains extricable provided that there is nothing unique to the context that prevents the issue from beinganalysed absent that unique context. [24] In a case before the Nova Scotia Court of Appeal involving an appeal under a provision similar to

section 13.4 of the WCA, itwas undisputed that the

interpretation of a workers’ compensation board policy was a question of law for the purpose of that provision(ie, for the purpose of giving the Court jurisdiction to hear the appeal): Halifax Employers Assn. v. Nova Scotia (Workers’ CompensationAppeals Tribunal), 2000 NSCA 86, [2000] N.S.J. No. 216 at para. 36. [25] I note that Buckley appears, on first reading, to suggest that the

interpretation of Board policy does not raise questions of law:“To the extent the Appeals Commission was required to interpret Board policy, that does not raise an extricable question of law”: at para.22. However, it is important to note the nature of the question under consideration. The question was very factual: “The Entz decisionturns on whether Entz was working as a farm labourer or a truck driver at the time of the accident.” However, in the case before me thequestion is completely extricable from the facts.

It might be stated like this: “When determining when and whether a worker is capable ofresuming ‘suitable employment’ under WCB Policies 04-02, 04-04, and 04-05, is the Board restricted to considering only evidencerelated to the workplace injury, or is the Board permitted or required to consider evidence related to the worker’s other abilities andattributes?” Put another way, the question might be, “What is the meaning of ‘suitable employment’ for the purposes of WCB Policies04-02, 04-04, and 04-05?” The question is more like that posed in paragraph 23 of the Buckley decision: “[T]o what extent can afault-based factor ... be used in determining whether the worker is acting in the course of his or her employment?” That question washeld to be a “a pure question of law arising in large part from the proper

interpretation of several interrelated provisions of the Act.”

Likewise the question in the instant case relates to the interrelation of several Board policies and provisions of the WCA and the meaningto be given to “suitable employment” in the context of each. [26] Apart from the

interpretation of Board policy, the first two grounds of appeal also place into issue the determination ofrelevance of evidence to be considered by the Board and the AC. The Court of Appeal has held that this issue too is a question of law. Ina case (not cited by the parties) in which the AC was alleged to have considered two irrelevant matters, the Court of Appeal held that“whether evidence meets the legal threshold of relevance is a question of law, bringing this ground of review under the appealprovisions”: Elgie v.

Alberta (Workers’ Compensation Board Appeals Commission), 2009 ABCA 277, 464 AR 127 at para. 35 [emphasisadded]. [27] Furthermore, the Appellant argues that an error of law has occurred because the Board and the AC have applied the wronglegal test.

As explained in Davick, the Supreme Court addressed this kind of error in Canada (Director of Investigation & Research) v.Southam Inc., (SCC), [1997] 1 SCR 748, 144 DLR (4th) 1 at para. 39: if ... the correct test requires [a decision-maker] to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C,then the outcome is as if he or she had applied a law that required consideration of only A, B, and C.

If the correct test requires him orher to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law. [28] This principle was affirmed in Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at para. 27, where the Supreme Courtadded: “Therefore, what appears to be a question of mixed fact and law, upon further reflection, can actually be an error of pure law.” [29] In this case, without deciding for the moment what the correct legal test is, it is clear from the various formulations of thequestion I have set out above that the question is analogous to the type of question described in Southam, and thus a question of law. [30] Finally, Iacobucci J. held in Southam that what may otherwise resemble a question of mixed fact and law becomes a questionof law when the point is one that might arise in many cases in the future.

The more general the question, the greater its precedential valueand the more it will be seen as a question of law: Southam at paras. 36-7. Iacobucci J. noted the case of Pezim v. British Columbia(Superintendent of Brokers), (SCC), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385. In that case, the British ColumbiaCourt of Appeal characterized the issue of whether the acquisition of information of a certain kind qualified as a “material change” underthe applicable securities legislation. This was a question of law, partly because statutory

interpretation was engaged, but also because“the point in controversy was one that might potentially arise in many cases in the future”: Southam at para. 36. [31] As noted above, the question of how to interpret, determine, and consider “suitable employment” in the context of the Boardpolicies at issue is a general one, extricable from any particular fact and is certain to arise again and again. For this reason also it is aquestion of law.

Procedural fairness [32] In connection with his second ground of appeal, the Appellant has also asked me to consider whether the AC’s refusal toconsider the AISH evidence constituted a breach of the audi alteram partem rule. Audi alteram partem is a fundamental maxim ofnatural justice. It is classically expressed as “no man shall be condemned to consequences resulting from alleged misconduct unheardand without having the opportunity of making his defence”: Wood v. Wood, (1874), LR 9 Ex 190.

Expressed more simply as “hear theother party” or “hear the other side”, the principle includes such requirements as reasonable notice, the right to know the case against you(which implies the right to know the evidence) and the opportunity to answer it (which implies a prohibition against the decision-makerhearing evidence in the absence of a party whose conduct is under scrutiny). See for example Desjardins v. Bouchard (1976), (FC), [1976] 2 FC 539, 71 DLR (3d) 491 at para. 26, 28 per Walsh J.; Canadian Cable Television Assn. - Assoc.canadienne de télévision par câble v.

American College Sports Collective of Canada Inc. (1991), (FCA), [1991] 3FC 626, 81 DLR (4th) 376 (Fed CA) at para. 13 the court per MacGuigan J.A. [33] In essence the audi alteram partem rule provides the right to make meaningful submissions to the decision-maker before thedecision is made. The principle is not about what the decision maker does with those submissions having received them. It is clear from

the ample record that a fair process was followed, and in particular that the Appellant was able to submit the AISH evidence and that the AC received it. As the Appellant has not provided any other basis for attacking the fairness of the procedure, this ground for appeal is dismissed without further analysis. Jurisdiction [ 34 ] A brief note on jurisdiction is in order. In each of the first two grounds of appeal the Appellant also pleads that it was an error of jurisdiction to fail to consider certain evidence.

The Supreme Court has made it clear that jurisdiction relates to whether or not the decision maker had the authority to consider the matter: New Brunswick (Board of Management) v. Dunsmuir , 2008 SCC 9 , [2008] 1 SCR 190 at para. 59 . “Jurisdiction” is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. ... These questions will be narrow.

We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [ 35 ] This is a considerably narrower view of jurisdiction than the English courts have been taking, where it seems all errors of law are also jurisdictional errors: H.W.R. Wade & C.F. Forsyth, Administrative Law , 10th ed (Oxford: Oxford University Press, 2009) at 214.

Many Canadian counsel speak of jurisdiction in a similarly broad way, but this is not the way in which jurisdiction is meant in this country. [ 36 ] In this case the Appellant has not asked any jurisdictional questions. That is to say, he has not raised issues that question the statutory authority of the AC to make a decision with respect to the Appellant’s employability or his workers’ compensation benefits. Clearly the AC has such authority. No jurisdictional question is raised.

Ground 3 [ 37 ] The Appellant’s third ground of appeal is that it was an error in law to find that he was capable of other suitable work. He argues that this finding was unreasonable based on the evidence. Unlike the first two grounds of appeal, which impugn the legal reasoning and process that was used to arrive at a conclusion, this objection in essence attacks the conclusion itself. Certainly, the application of law to a specific set of facts is sometimes characterized as a question of law.

As noted by the late Sir William Wade in Administrative Law at 794, The simpler and more logical doctrine [for distinguishing law from fact] has been recognised in many judgments. This is that matters of fact are the primary facts of the particular case which have to be established before the law can be applied, the ‘facts which are observed by the witnesses and proved by testimony’, to which should be added any facts of common knowledge of which the court will take notice without proof.

Whether these facts, once established, satisfy some legal definition or requirement must be a question of law, for the question then is how to interpret and apply the law to those established facts. If the question is whether some building is a ‘house’ within the meaning of the Housing Acts, its location, condition, purpose of use, and so forth are questions of fact. But once these facts are established, the question whether it counts as a house within the meaning of the Act is a question of law.

The facts themselves not being in dispute, the conclusion is a matter of legal inference. [references omitted] [ 38 ] Wade goes on to cast some doubt on the expression that is sometimes used for such an application of the law to the facts—a “question of mixed fact and law”—suggesting that the two should always be kept separate, “since law and fact are two different things which ought not to be mixed.”: ibid . [ 39 ] However, the Supreme Court has said repeatedly that a question about whether a given set of facts satisfies a legal test is a question of mixed law and fact: Southam at para. 35; Housen at para. 26 , B. (E.) v.

Order of the Oblates of Mary Immaculate (British Columbia) , 2005 SCC 60 , [2005] 3 SCR 45 at para. 107 . Of course, when the legal principle is easily extricable, it can be treated as a pure question of law: B. (E.) at para. 107 .

[40] Notwithstanding a matter may be, on its face, a question of fact or mixed fact and law, a question of law still arises if it can beshown that there was no evidence for a finding upon which the impugned decision depends, “or where the evidence, taken as a whole, isnot reasonably capable of supporting a finding of fact.”: Harry Woolf, Jeffrey Jowell & Andrew Le Sueur, De Smith’s Judicial Review,6th ed (London: Sweet & Maxwell, 2007) at para. 11-052.

In the words of MacKeigan C.J.N.S. of the Nova Scotia Court of Appeal, “it isan error of law if the decision is one that on the evidence no reasonable man could have reached.”: Cape Breton Development Corp. v.Penny (No. 2) (1977), (NS CA), 76 DLR (3d) 186, 20 NSR (2d) 292 at para. 10. [41] This principle was also expressed by Kellock J. for the Supreme Court, citing Lord Radcliffe in Edwards (Inspector of Taxes)v. Bairstow, [1956] AC 14, [1955] 3 All ER 48 (HL) [cited to AC].

After explaining the difference between a question of law and one offact, Kellock J. said, “nevertheless if it appears to the appellate Court that the tribunal of fact had acted either without any evidence orthat no person, properly instructed as to the law and acting judicially, could have reached the particular determination, the Court mayproceed on the assumption that a misconception of law has been responsible for the determination”: Canadian Lift Truck Co. v.

DeputyMinister of National Revenue, (SCC), [1956] 1 DLR (2d) 497 at 498. [42] The Appellant, in essence, asks me to consider that very question in the third ground of appeal: did the AC reach a decisionthat no reasonable person “acting judicially and properly instructed as to the relevant law could have come to”?: Edwards at 36. [43] If I am able to answer this question in the affirmative, then it is an error of law and therefore a question of law is engaged.But if the answer is no, that is to say, if the decision was one that was reasonably supported by the evidence, then there is no error of lawand therefore no question of law.

Thus, characterizing the issue requires that the question actually be answered, which is not particularlysatisfactory. Therefore for the limited purpose of characterizing the issue and determining whether I have jurisdiction to consider thisground of appeal, I assume that it is possible that the AC’s finding might be unreasonable in such a way as to result in an error in law. Conclusion [44] The first two grounds of appeal, which are closely related, raise issues related to the

interpretation of WCB compensationpolicies and the correct legal test for determining whether one is capable of employment for the purposes of those policies. These arequestions of law, but not of jurisdiction. The third ground of appeal, attacking as it does the finding of employability itself, is on its face aquestion of mixed fact and law.

However, if, on the evidence before the AC, such a finding was not one that could reasonably have beenmade, then an error of law occurred and this ground therefore also raises a question of law. [45] Incidentally, the Rules of Court include a saving provision in the form of Rule 3.2(6) (formerly Rule 753.16(1)). As noted, Iam satisfied that the matter is properly dealt with by way of appeal, but if I were to have found that this proceeding should have beenconducted as a judicial review, I would, on my own motion, have directed the proceeding to be continued by way of that procedure orboth procedures.

As such, the Appellant would still not have been denied a remedy by reason of what I would have regarded as atechnical defect in the pleadings; “the form of the application is no impediment to the relief applied for”: Buckley at para. 14. This wouldhave been consistent with the intent of

section 8 of the Judicature Act, RSA 2000 c J-2, which urges courts to grant all remedies theparties appear to be entitled to, “so that as far as possible all matters in controversy between the parties can be completely determined andall multiplicity of legal proceedings concerning those matters avoided.”: see Shuchuk at para. 25; Chauvet v. Alberta (Workers’Compensation Board Appeals Commission), 2007 ABCA 155, 409 AR 17 at paras. 25-6. In any event, no one has been prejudiced bycommencing the proceedings as an appeal, and the limitation period for a

section 13.4 appeal is the same as that for judicial review. [46] That I would have invoked Rule 3.2(6) if appropriate does not mean that I view judicial review and statutory appeal asexactly equivalent and fungible. I agree with the recent assessment of McCarthy J. in Precision Drilling Corporation v. Calgary ( City),2011 ABQB 503, in which he reasons that Buckley cannot be taken to mean that judicial review should always be availablenotwithstanding a statutory appeal, when both are to be heard by this Court.

Where appeal is the appropriate course of action and awould-be appellant has missed the statutory limitation period, that person cannot simply seek judicial review instead. To allow thatwould defeat the legislature’s purpose in enacting the appeal provision. However, this is not that case. In this case the Appellant has metthe most restrictive of the two limitations (since they are the same), and indeed has appealed as directed by the statute.

If this had turnedout to be a case that should have been commenced by judicial review instead of an appeal, it would have been an appropriate case for theapplication of Rule 3.2(6) or some other curative amendment as suggested by Berger J.A. in Chauvet at para. 26. It would not have beenappropriate, in my view, to let an otherwise meritorious claim fail because of confusion over the correct form of the application. Forexamples of the application of former Rule 753.16(1) to continue as judicial review actions commenced in other forms, see HalliburtonGroup Canada Inc. v.

Alberta (Minister of Finance), 2009 ABQB 420, 481 AR 72; Lewis v. Pincher Creek (Municipal District) No. 9,2005 ABQB 201, 375 AR 331 at paras. 20-2; and A.U.P.E. v. Alberta, (AB KB), 310 AR 240.

Issue 2: Standard of review [ 47 ] The standard of review for a statutory appeal is the same as that for judicial review: Buckley at para. 14 , citing Dr. Q v. College of Physicians and Surgeons of British Columbia , 2003 SCC 19 , [2003] 1 SCR 226 at para. 21 ; Chauvet at para. 21 ; Davick at para. 10 . [ 48 ] There are two possible standards on which to review a decision of an administrative decision maker—the deferential standard of reasonableness, and the more exacting standard of correctness: Dunsmuir .

To determine the standard of review a court should first consider whether adequate precedent exists; where the standard has already been determined there is no need to conduct a standard of review analysis: Dunsmuir at paras. 57, 62 . The application of precedent to the standard of review question may be either in the traditional sense (considering the same administrative decision maker and similar facts), or in the more general sense of considering the “category of question”: Dunsmuir at paras. 58, 61-2 . [ 49 ] It is common ground between the parties that

interpretation of workers’ compensation policies, and the application of policies to particular fact situations are reviewed for reasonableness, as is the

interpretation and application of sections of the WCA lying within the expertise of the AC: Gahir v. Alberta (Workers’ Compensation Appeals Commission) , 2009 ABCA 59 (“ Gahir CA”) at para. 13 ; Shuchuk at para. 31 . Issue 3: Applying the standard [ 50 ] To determine whether a decision of an administrative tribunal is reasonable a court must make two inquires. First, the court examines the reasons given, looking for justification, transparency, and intelligibility.

Secondly the court determines “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Dunsmuir at para. 47 . Ground 1: Failure to consider the reduced cognitive abilities, language deficits, learning and academic background of the Appellant in determining whether or not he was capable of employment [ 51 ] As I have said above, this is a question of the

interpretation of the relevant WCB policies and the related sections of the WCA . For now I will focus on the AC’s determination of Mr. Patrus’s eligibility for TTD benefits (“Issue 1” in the AC’s decision). I will consider eligibility for benefits other than TTD benefits (which roughly corresponds to “Issue 2” in the AC’s decision) under the Appellant’s third ground of appeal. [ 52 ] At paragraph 38 of its decision, the AC decided that Mr.

Patrus’s attributes and disabilities apart from those directly related to the accident were not relevant considerations: [38] The representative submitted that the worker’s physical restrictions and his cognitive and academic limitations prevented him from obtaining competitive employment. However, the Appeals Commission is bound by the WCB legislation, regulations and policies. WCB Policy 04-02 provides that a worker is entitled to TTD benefits when the worker’s compensable work restrictions prevent him or her from pre-accident or other work.

Considerations such as cognitive abilities and academic background are not relevant considerations in determining whether or not the worker is entitled to TTD. The work restrictions must be the result of the work-related injury, i.e. the work restrictions must be compensable restrictions. [ 53 ] WCB Policy 04-02

Part II reads in relevant part as follows: 1. When is a worker eligible for temporary TOTAL disability benefits?

A worker is eligible for temporary total disability benefits when there is medical evidence the work-related injury has resulted in temporary work restrictions which prevent the worker from resuming pre-accident employment or other suitable employment . 2. How long are temporary total disability benefits paid?

Temporary total disability benefits are payable for as long as the compensable temporary total disability lasts, generally until: the weight of medical evidence indicates the worker is considered fit to return to suitable employment ... [emphasis added] [ 54 ] To understand this policy it is necessary to consider the definition of “suitable employment”. That term is defined in WCB Policy 04-04

Part II and in the Glossary to the Policies and Information Manual . The definition is as follows: For the purposes of estimating earning capacity, suitable means employment which is consistent with the worker’s ability and which is within the worker’s locale or may be obtainable where relocation is reasonable. The WCB’s assessment of ability will be based on physical, vocational, social, and psychological circumstances and such other factors as the WCB may consider relevant. [ 55 ] In other words, employment is only “suitable” if the worker can perform it, considering the whole person, not just the accident-related injury. Importing that definition into WCB Policy 04-02

Part II, it is clear that the policy considers a worker to be eligible for TTD benefits as long as both of these conditions are true: 1) The work-related injury prevents the worker from resuming his or her pre-accident job. 2) The work-related injury prevents the worker from performing other jobs which he or she would otherwise have been capable of performing, but for the injury. [ 56 ] The AC’s reasons in paragraphs 40–41 all focus on “medical evidence” and “compensable work restrictions”, indicating that the AC was not considering Mr. Patrus’s so-called “non-compensable” limitations. The AC simply gives no reason in this

section of its decision for its conclusion that “[c]onsiderations such as cognitive abilities and academic background are not relevant considerations in determining whether or not the worker is entitled to TTD.” Accordingly, with respect to this issue, the reasons must fail the test of justification, transparency, and intelligibility. [ 57 ] I note that the AC did consider, at paragraph 40.4 of its decision, the report of a psychologist who completed the Learning, Disability, Education, and Vocational Assessment Report. This report appears to consider Mr. Patrus’s cognitive abilities.

This might be taken as an indication that the AC did consider Mr. Patrus’s abilities in their entirety, despite the clear statements in paragraph 38 and elsewhere that it was not doing so. There are two problems with this. [ 58 ] First, the passage from the psychologist quoted by the AC, which considers only Mr. Patrus’s cognitive abilities, no more considers the whole person than the medical findings which considered only the injury to his hand. The passage indicates that, all else being equal, he had the cognitive abilities to perform certain kinds of slow, repetitive, concrete work.

Later in the psychologist’s report, however, when considering the totality of Mr.

Patrus’s circumstances - including both his cognitive and his physical limitations together - she comes to the conclusion that “his vocational options are very limited.” She notes that to be employable he would require more vocational support than he had received as of the date of the assessment (24-25 July 2008), as well as significant job accommodations that neither the Board nor the AC has shown to exist in the real world of work. [ 59 ] The second problem with accepting the quoted statement as evidence that the AC did take into account Mr.

Patrus’s cognitive abilities is that it does nothing to explain its clear and strong contention that it cannot and does not consider such factors in the determination of TTD benefits - a contention that the WCB reiterated in its submissions to this Court.

[ 60 ] In

summary, with respect to eligibility for TTD benefits, I find that in interpreting WCB Policy 04-02, the AC adopted the wrong legal test, erring in law. As there are no reasons given in the AC’s decision to support such an

interpretation, this error is unreasonable. Ground 2: Failure to consider evidence that the Appellant qualified for AISH in determining whether or not he was capable of employment [ 61 ] The Appellant provided evidence to the AC that he had been granted benefits under the Assured Income for the Severely Handicapped Act , SA 2006 c A-45.1 . To be eligible for such benefits, the recipient must meet several conditions, one of which is that he or she has a “severe handicap”, defined in

section 1(

I) as follows: “severe handicap” means an impairment of mental or physical functioning or both that, in a director’s opinion after considering any relevant medical or psychological reports, causes substantial limitation in the person’s ability to earn a livelihood and is likely to continue to affect that person permanently because no remedial therapy is available that would materially improve the person’s ability to earn a livelihood. [ 62 ] At paragraph 39 of its decision, the AC dismissed the fact that Mr. Patrus was eligible for AISH benefits as “not relevant to WCB considerations”.

It took this position for the same reason it refused to consider other evidence of Mr. Patrus’s reduced cognitive abilities, language deficits, and learning and academic background. It considered that such factors were not relevant to a determination of entitlement to TTD benefits. [ 63 ] Different administrative decision makers may make different findings under different legislative schemes which have different purposes. Certainly a finding by an AISH appeal panel is not binding as such on the WCB or the AC.

In that sense, it would not have been unreasonable for the AC not to adopt it. [ 64 ] However, that is not the reason the AC dismissed this evidence. It dismissed it for the same reason it dismissed Mr. Patrus’s “non-compensable” attributes generally: its

interpretation of the policies was that such considerations were not relevant to the determination of eligibility for TTD benefits. [ 65 ] As I have already decided above, this is an unreasonable

interpretation of the policy. The reason given for refusing to consider this evidence is not grounded in a logical

interpretation of the policy. [ 66 ] Furthermore, although the other evidence of the Appellant’s “non-compensable” attributes is considered later when the AC decides what it calls “Issue 2”—estimating Mr. Patrus’s post-accident earning capacity—the AISH evidence is never referred to again in the AC’s decision. The AC refused to consider it for the purpose of entitlement to TTD benefits, and then it failed, without giving a reason, to consider it for anything else later. This too is, in my view, an unreasonable error in law. Ground 3: Finding that Appellant was capable of other suitable work [ 67 ] WCA

section 56 provides for payments to disabled workers to compensate them for the loss of earnings capacity that results from workplace accidents. In the case of either permanent or temporary total disability, workers receive 90 per cent of their former “net earnings”: section 56(6)(a). In the case of either permanent or temporary partial disability, that payment is reduced by an amount “based on the Board’s estimate of the impairment of earning capacity from the nature and degree of disability.”: section 56(6)(b).

Section 63 of the WCA provides as follows: In determining the degree of impairment of earning capacity, the Board may consider as a factor the nature of the injury and the physical and mental fitness of the worker to continue in the employment in which the worker was injured or to adapt himself or herself to some other suitable employment.

[ 68 ] The Board has implemented policies 04-04 and 04-02 (for permanent disability and temporary disability respectively) to provide for compensation under

section 56, and to guide the determination of impairment of earning capacity. Policy 04-02 makes reference to a “suitable job” for the determination of earning impairment: 8. When does the WCB estimate the impairment of earning capacity in cases of temporary partial disability? The WCB may estimate the post-accident earning capacity when: · a worker is capable but unable to obtain modified employment, or · a worker obtains employment which does not represent the worker's earning capacity, or · the worker is capable but chooses not to obtain employment. 9.

How does the WCB estimate the impairment of earning capacity in cases of temporary partial disability? In cases of temporary partial disability, the WCB considers the earnings in a suitable job for which it is reasonable the worker could be hired, given the temporary work restrictions. [ 69 ] The AC indicates at paragraph 48 of its decision that “suitable job” is to be interpreted the same way as “suitable employment”, taking into account all of the worker’s abilities and disability, as discussed above.

That is reasonable. [ 70 ] Policy 04-04, applicable in the case of permanent disability, includes similar provisions: 4. When does the WCB estimate earning capacity instead of using actual post-accident earnings? The WCB estimates the worker’s earning capacity in suitable employment when, (

a) despite ability, a worker does not engage in employment, or (

b) a worker is unable to secure suitable employment, or (

c) worker engages in employment which fails to maximize earning capacity. 5. What is suitable employment? For the purposes of estimating earning capacity, suitable means employment which is consistent with the worker’s ability and which is within the worker’s locale or may be obtainable where relocation is reasonable. The WCB’s assessment of ability will be based on physical, vocational, social, and psychological circumstances and such other factors as the WCB may consider relevant. 6. What is the estimate of earning capacity based on?

The estimate of earning capacity is usually based on information related to the vocational plan. The plan identifies suitable employment and the worker's earning capacity in that employment. …

[ 71 ] Under Issue 2 of the AC’s decision, the AC purported to consider Mr. Patrus’s other limitations beyond those that resulted from the accident. In doing so, it concluded that the job the WCB had identified for him—video store clerk—was beyond both his physical capabilities and his academic qualifications. This aspect of the decision is rational and defensible. There are clear and logical connections between the evidence and the decision that Mr. Patrus is incapable of performing the job in question. [ 72 ] However, having found that Mr.

Patrus was incapable of performing the job identified for him by the Board, the AC then held fast to its position that he was, nevertheless, capable of “suitable employment”, whatever that might be. This was to support its decision to reduce his benefits by an amount corresponding to what he could theoretically earn. [ 73 ] The analysis of Issue 2 in the AC’s reasons takes as its premise the conclusion established in its analysis of Issue 1, which was that Mr. Patrus is capable of “suitable work”.

However, having erred in law in reaching its conclusions under Issue 1, the AC leaves Issue 2 with no base to stand upon. There is no independent analysis under Issue 2 with respect to the “suitable employment” that Mr. Patrus might be capable of performing; there is only analysis related to the one job that the AC decided he was not capable of performing.

Moreover, as I noted above, the AC makes no mention at all of the AISH evidence in this part of the decision, so that it is impossible to know if it was considered. [ 74 ] I said at the outset that the third ground of appeal would require me to consider whether the evidence, taken as a whole, is reasonably capable of supporting the AC’s finding, or whether the decision is one that on the evidence no reasonable person could have reached.

It may be the case that the AC could have applied the correct legal test, considering all of the relevant factors in its analysis of Issue 1, and still have arrived at the conclusion that Mr. Patrus was employable, though that result would surprise me. But given the flaws in the reasoning as it stands, it is impossible to say. In any event, given my decision with respect to the errors of law related to the first two grounds of appeal, I find it unnecessary to answer this question. Instead I will say simply that, with respect to the third ground of appeal, in my view it was unreasonable to decide that Mr.

Patrus was capable of other suitable work, given the errors of law in the first half of the decision and the lack of any further reasoning in the rest of decision that could lead to the conclusion the AC reached. I will be directing the AC to reconsider the question of whether Mr. Patrus is indeed employable at all. [ 75 ] When the AC applies the correct test to reconsider whether Mr.

Patrus is employable, the AC should bear in mind the following points. [ 76 ] The AC takes the Gahir case as authority for the proposition that an “Appeals Commission can make a finding of functional capacity without identifying a specific job the worker can do, that is without making a finding of employability”: AC Decision at para. 56, citing Gahir CA at para. 26 . That is correct as far as it goes. However the Court of Appeal in that case also stressed at paragraphs 26- 8, 30-1 that “Fit for full time sedentary employment” is a level of functional capacity; it is not a job.

Employability undoubtedly arises on a foundation of functional capacity, but employability also incorporates social and economic considerations. Mere theoretical functional capacity that is not economically competitive does not amount to employability. ... [The definition of “suitable employment”] recognizes the social and economic aspects of employability. The “capacity” of the worker must be matched to “suitable work” to create “employability”.

It is not necessary for the Board or the Appeals Commission to identify a specific job that is available for the particular worker when making a finding of functional capacity. This does not mean that the failure to identify some type of employment that is available to the worker is irrelevant . As the chambers judge noted, it is difficult to envision how the Board could reasonably conclude that a worker is capable of employment, if the Board is unable to point to some category or type of employment that is reasonably available and that the worker could actually perform.

We can understand why the chambers judge noted that at some point in time the appellant “may want to seek instruction on having the Board declared to have acted in bad faith”. A mere finding of functional capacity is not enough. Employability under the system must not just be theoretical, but must be based in reality. ...

If the Board is unable to identify any real employment that is suitable for the appellant based on physical, vocational, social, and psychological factors, it is unlikely that the Appeals Commission will accept any reduction in his benefits based on a theoretical, but entirely artificial, fitness to work. ...

It was therefore open to the Appeals Commission to conclude that the appellant is theoretically capable of performing sedentary work within his restrictions, without identifying a specific job he could perform.

The ability of the Board to deduct any potential earnings from the appellant’s benefits will however likely depend on the Board identifying such suitable employment. [Emphasis added] [ 77 ] The Court of Appeal then directed the Appeals Commission in that case to consider appropriate interim relief (including possible retroactive compensation) while the Board reconsidered what job the worker might be able to perform. [ 78 ] More recently, this Court had the opportunity to consider and apply Gahir to a case concerning the interim benefits to be paid to an injured worker while the WCB worked to identify suitable employment.

Lee J. held that it was unreasonable for the Appeals Commission to calculate the worker’s interim compensation as though she had the capacity to work at suitable employment paying minimum wage when no suitable position had been identified. “It would be unreasonable to compensate the Applicant at a level which is less than TTD until such time as ... some suitable position eventually is identified.”: Watson v.

Alberta (Workers’ Compensation Board) , 2010 ABQB 280 , 491 AR 307 at paras. 110 , 112. [ 79 ] The WCB urges me to distinguish Watson on the basis that the Appeals Commission in that case had determined that the worker had some ability to continue with employment if appropriate vocational assistance and job support were put in place, but an effective vocational plan was not in place and there was no indication that she had been provided with the requisite vocational support to actually have her competitively perform the employment she attempted, taking into account her disabilities: Watson at para. 99 . [ 80 ] I do not see how this situation is markedly different from the one before me.

The WCB says that the Appellant’s capacity to work has been conclusively determined, but this seems a stretch given the totality of the evidence. The WCB claims that Mr. Patrus was fit to return to work in 2006. However, the 2008 Learning Disability, Educational, and Vocational Assessment Report by Ms. Linney stressed that at that point Mr.

Patrus had no work skills, that “[t]he impact of his disability [was] magnified by his poor academic achievement and severe learning disability and these factors [had] not likely been taken into consideration by WCB in their decision to deem him capable of competitive employment”, that his vocational options were still “very limited”, and that he required further vocational support and workplace accommodations. [ 81 ] In my view there is no effective vocational plan in place for Mr.

Patrus, and there is no indication that he has been provided with the requisite vocational support to actually have him competitively perform employment. Taken together with the fact that, as in Gahir and Watson , the Board has identified a job that the worker cannot in fact do, I do not see Lee J.’s remarks in Watson to be particularly inapposite in this case. It would be appropriate to restore Mr. Patrus’s benefits to the TTD level until such time as the AC or the Board is able to identify suitable employment. [ 82 ] Since the AC did not properly decide that Mr.

Patrus was capable of suitable employment, the decision to refer the matter back to the WCB to determine what specific job he could do no longer makes sense, and so that decision is quashed. In its stead, the matter is referred back to the AC for a determination of Mr. Patrus’s employability and resulting benefits in accordance with these reasons. Order [ 83 ] WCA

section 13.4(11) provides that the Court hearing an appeal may (

a) confirm or set aside the decision of the Appeals Commission or any part of it, and (

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with any directions the Court considers appropriate. [ 84 ] Accordingly, the appeal is allowed except to the limited extent that the AC determined that Mr. Patrus was not capable of performing the duties of a video store clerk. That portion of the AC’s decision is confirmed.

[ 85 ] The matter is referred back to the AC for reconsideration in accordance with these reasons, with the following specific directions:

(1) In accordance with the definition of “suitable employment”, the AC is directed to consider all relevant attributes of the Appellant when determining whether he is capable of suitable employment, not just limitations related to the accident. This is relevant for determining TTD and other benefits.

(2) If a finding is made in the abstract that the Appellant is able to work, the AC is directed to consider whether it is just to reduce his benefits below the TTD level before a specific suitable job is identified.

(3) In the interim the AC is directed to set a compensation level in accordance with the principles in these reasons. Costs [ 86 ]

Section 13.4(13) of the WCA provides that the Court may make any award as to the costs of the appeal that it considers appropriate. [ 87 ] I retain jurisdiction to allow parties to speak to costs within 60 days of this decision. Heard on the 16 th day of February, 2011. Dated at the City of Calgary, Alberta this 23 rd day of August, 2011. P.M. Clark J.C.Q.B.A. Appearances: Brian E. Devlin, Q.C. O’Brien Devlin MacLeod for the Appellant Ron C. Goltz

Worker’s Compensation Board for the Respondent The Worker’s Compensation Board Sandra R. Hermiston Appeals Commission for Alberta Worker’s Compensation for the Respondent The Appeals Commission for Alberta Worker’s Compensation