The Workers ’ Compensation Board Appellant/Applicant - v. -, 2012 ABQB 733

Court of Queen ’ s Bench of Alberta Citation: Alberta (Workers ’ Compensation Board) v Alberta (Appeals Commission for Alberta Workers ’ Compensation), 2012 ABQB 733 Date: 20121129 Docket: 1103 06590 Registry: Edmonton Between: The Workers ’ Compensation Board Appellant/Applicant - and - Appeals Commission for Alberta Workers ’ Compensation Respondent _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.A. Sulyma _______________________________________________________ I.

Nature of the Matter [ 1 ] The Applicant appeals and, in the alternative, seeks judicial review of a decision of the Respondent dated November 3, 2010 on the basis that the Respondent tribunal committed an error of law, of jurisdiction, or an error of mixed fact and law by misapplying the Workers ’ Compensation Act , RSA 2000, c W-15 ( WCA ), Workers ’ Compensation Board (WCB) policy and common

law tests of causation when it held that Ronald Kanuga ’ s asbestos-related disease played a material role in his death so as to render his death compensable under the WCA . The Applicant submits that the Appeals Commission also erred by applying the common law to determine compensability under the WCA to the exclusion of WCB policy on that issue. II. Facts [ 2 ] Mr. Ronald Kanuga submitted a Worker ’ s Report of Injury or Occupational Disease to the WCB on March 21, 2001 indicating that he had developed respiratory problems over the years as a result of his employment as an insulator in the 1960s.

The WCB accepted responsibility for Mr. Kanuga ’ s asbestos-related pleural disease, which it found had been caused by his occupational exposure to asbestos. It established a date of accident on the claim as March 8, 2001, the date a CT scan confirmed the diagnosis of pleural plaques. It found the bilateral pleural plaques were not contributing to airway obstruction and had not resulted in any permanent clinical impairment. [ 3 ] Mr. Kanuga died on February 16, 2006. The confidential autopsy report form indicated that the immediate cause of Mr.

Kanuga ’ s death for the medical certificate of death was metastatic renal cell carcinoma. It further indicated that a significant condition contributing to Mr. Kanuga ’ s death but not causally related to the immediate cause of death was the non-neoplastic asbestos-related pulmonary disease. In the narrative

summary of findings and conclusions related to death, medical examiner stated that: ... there [are] changes in the lung and chest cavity consistent with asbestos exposure in the past (i.e. pleural plaques, interstitial scarring in the lungs, and asbestos bodies seen microscopically in the lung tissue). ” [ 4 ] Subsequent investigations determined that Mr. Kanuga had developed asbestosis and that it was reasonable to conclude that a component of his airway obstruction had been related to his asbestos exposure in the workplace.

The results of an April 25, 1994 pulmonary function report revealed airway obstruction meeting the criteria of moderate impairment (35 percent PCI). Five subsequent studies had consistent results, all showing severe impairment estimated at 50 percent. [ 5 ] A histological review of the case was undertaken. On November 21, 2006, Ignatius Sin reported to the WCB ’ s medical advisor that the lung findings most likely reflected early asbestosis.

He continued: Unfortunately, small airway lesions and peribronchiolar fibrosis are not entirely specific and may be associated with tobacco smoke or a variety of environmental exposures other than asbestos. Correlation with the patient ’ s cumulative exposure, clinical status and pulmonary function is recommended. The association of extra-pulmonary tumor, especially renal cell carcinoma with asbestos exposure is controversial. I am not aware of any proven causal relationship of renal cell carcinoma to asbestos. [ 6 ] The WCB ’ s medical advisor advised the case manager that in his opinion Mr.

Kanuga ’ s death was not related to asbestosis but rather was the result of renal cell carcinoma. [ 7 ] On February 7, 2007, the WCB gave the following award for permanent impairment: (

a) for the basic award, the WCB used an assessed disability rating of 35 percent effective April 16, 1994; (

b) the second award was assessed at eight percent and became effective September 15, 1997; and (

c) The third award was assessed at seven percent and became effective February 5, 2001, bringing the total assessed impairment to 50 percent.

[ 8 ] The date of accident was altered to April 25, 1994, the first confirmed date of disablement, when the first pulmonary function test confirmed respiratory impairment. The estate was provided with a cheque for back payments from April 26, 1994 to February 28, 2006, including the home maintenance allowance Mr. Kanuga would have been entitled to from February 2001 to February 2006. The estate was advised that no benefits were payable beyond the date of death given the cause of death was non-compensable metastatic renal cell carcinoma.

The estate subsequently was provided with a cheque representing annual payments of a special needs allowance from 2001 to 2006 for which Mr. Kanuga would have qualified. [ 9 ] Mrs. Kanuga and her son sought a review of the WCB ’ s decision in relation to the calculation of the compensation rate and the permanent partial disability award. [ 10 ] On July 16, 2007, the WCB notified Mr. Kanuga ’ s estate that it was entitled to a further sum representing the personal car allowance to which Mr.

Kanuga would have been entitled from September 1, 1997 to his death. [ 11 ] The Dispute Resolution and Decision Review Body [DRDRB] determined on December 4, 2007 that the compensation rare had been correctly calculated and that the permanent clinical impairment had been fairly assessed at 50 percent. [ 12 ] A representative for the Kanugas was unsuccessful in her request that the WCB reconsider a delayed fatal claim in view of the statement in the autopsy report that non-tumour asbestosis-related lung disease was a significant condition contributing to Mr. Kanuga ’ s death.

The resolution specialist concluded that the information in the death certificate was not new evidence that would support a review of the previous decision. [ 13 ] On October 9, 2008, the WCB medical consultant reported, in part: Question #1: What effect did the asbestosis have on the renal cancer occurring? Answer: None. Question #2: Did the asbestosis condition speed up the renal cancer ’ s process? Answer: No. Question #4: Would the renal cancer have caused the worker ’ s death without having the asbestosis condition? Answer: Yes.

The disease was spread extensively though the body and would have caused the worker ’ s death whether or not he had an asbestosis condition. [ 14 ] On January 13, 2009, the medical examiner and forensic pathologist who conducted the autopsy on Mr. Kanuga, advised the WCB that it was his belief “ ...the non-neoplastic asbestosis related disease is a contributory factor in the death of Mr. Kanuga.

It is not simply a coincidental finding purely from my records... ” [ 15 ] On March 16, 2009, the WCB medical consultant reported, in part: Question #1: Based on the final medical information, is there any documentation that the lungs showed impairment due to the asbestos condition:

Answer: Yes. Please refer to my memo December 21, 2006, which chronicles the gradual deterioration in lung function between 1994 ad 2005. Part of this impairment was due to asbestos pleural disease and asbestosis identified at post-mortem... Question #3: Your opinion regarding the impact the respiratory condition had in contributing to the worker ’ s death? Answer: In my opinion, [the worker] died as a direct consequence of renal cell carcinoma.

Terminally this cancer or its treatment impacted all of his organ systems and all contributed in some way to his death (terminal cardiac arrhythmia) including his lungs. [ 16 ] The case manager reviewed the medical examiner ’ s letter and medical advisor ’ s opinion, together with WCB Policy 03-01,

Part II, Application 3, Question 5, which stated: Respiratory disease claims are adjudicated like any other occupational disease claim. However, when a worker has a respiratory disease due in part to occupational factors and in part to non-occupational factors, the overall disability is presumed to be related to employment. Special provisions are provided for cases where a worker with a pre-existing non-compensable cardiac condition suffers a compensable respiratory disease... [ 17 ] On March 31, 2009, the case manager wrote to Mrs.

Kanuga advising her that the WCB had found that the compensable respiratory injury was a factor in Mr. Kanuga ’ s death and, as a result, his death would be accepted on the claim. [ 18 ] On June 10, 2009, the WCB medical advisor responded in part as follows to questions posed by a WCB supervisor: Question #2: In your memo of March 2009, you state the primary condition this worker had was renal cell carcinoma and a lesser contributory condition being his non-neoplastic asbestosis-related pulmonary disease.

Please comment as to the cause of death, was it specifically related to the metastatic renal cell carcinoma and the lesser contributory condition was just a finding at the time. Answer: Asbestosis was an autopsy finding that was not clinically apparent during life, i.e. it was subclinical. Terminal metastatic cancer affects the body in a myriad of ways culminating in death by either ventricular fibrillation or cardiac arrest. Question #3: Would this claimant have passed away from his renal cell carcinoma despite the finders of non-neoplastic asbestosis- related pulmonary disease? Answer: Probably.

Metastatic cancer will ultimately lead to death even if all of the other organ systems are normal. Question #4: Did the non-neoplastic asbestosis-related pulmonary disease play any

part in this claimant ’ s death? Answer: Probably not. Asbestosis was only evidence microscopically. At autopsy, no focal lung masses were found. At autopsy, the lungs were free of consolidation (i.e. no pneumonia) and emphysema. There was microscopic invasion of the lungs by metastatic tumor mainly along blood vessels. The microscopic interstitial fibrosis was “ patchy, ” i.e. the entire lung was not involved. [ 19 ] In a letter dated June 18, 2009 to Mrs. Kanuga, the case manager retracted her previous statement that Mr.

Kanuga ’ s death would be accepted on the claim, referencing the medical advisor ’ s opinion and Policy 04-08, which stated: 1. Does the WCB pay fatality benefits whenever a worker with a compensable injury dies?

The WCB pays fatality benefits only when the worker’s compensable injury is the cause of death. [20] On October 5, 2009, Mrs.

Kanuga asked for a review of that decision. [21] In an October 28, 2009 file note, a second WCB medical consultant reported, in part: Despite the severe lung disease, due to his long history of smoking, the mild asbestosis and the extensive metastatic disease, his oxygenlevel remained in the 89-91% range with supplemental oxygen at 6 litres a minute by nasal prongs; When last measured 3 hours beforehis death it was still 91% and in my opinion this provides sufficient medical evidence to support that the lung disease played a negligiblerole in this worker’s death.

This supports [the first WCB medical consultant’s] October 28, 2008 opinion that the disease was spreadextensively through his body and would have caused the worker’s death whether or not he had an asbestos condition. This is alsocompatible with the statement from the [examining pathologist] that the asbestosis condition was the lesser contributor to the worker’sdeath. The pathophysiological mechanism which he suggested, that the deteriorating lung function may have contributed to the worker’sdeath is not borne out by the trans cutaneous oxygen measurements taken over the last few days of his life.

There is no difference ofmedical opinion. [22] The DRDRB issued its decision on October 29, 2009, upholding the decision of the case manager that Mr. Kanuga’s deathwas not compensable under the claim. The DRDRB also found there was no difference of medical opinion and, therefore, a medicalpanel was not required. [23] On November 17, 2009, the internal and respiratory medicine specialist who had attended Mr. Kanuga wrote to the estate’srepresentative that although the asbestos disease in Mr.

Kanuga’s lungs and pleura was not the cause of death, “it almost certainlyattributed [sic] to his death.” [24] The estate appealed the decision of the DRDRB. [25] The Appeals Commission, in its decision of November 3, 2010, considered that convening a medical panel was a moot issuebut granted the appeal on the issue of whether Mr. Kanuga’s estate was entitled to WCB fatality benefits.

In arriving at this decision, theAppeals Commission followed Shuchuk v Alberta (Workers’ Compensation Board), 2007 ABCA 213 at para 46, in which the AlbertaCourt of Appeal commented that: [a]bsent clear legislative direction to the contrary, the workers’ compensation scheme should, at aminimum, provide compensation to those situations that would result in compensation under traditional tort law.” The AppealsCommission then applied a modified form of the test for causation outlined in Athey v Leonati, (SCC), [1996] 3 SCR458 and Resurfice Corp v Hanke, 2007 SCC 7, [2007] 1 SCR 333.

First, it addressed the "but-for” test of causation (i.e., but for Mr.Kanuga's asbestosis and bilateral pleural plaques, would his death have occurred when it did?) and concluded that the answer wasscientifically unknowable. It then proceeded to apply the common law "material contribution” test to the question of causation (i.e., didMr. Kanuga's compensable conditions materially contribute to his death?). The Appeals Commission concluded that the compensableconditions did materially contribute to Mr.

Kanuga’s death, and there was nothing in the WCA or WCB policy that would precludecompensation being paid in this case. Accordingly, it held that the estate was entitled to fatality benefits under the WCA. III. Issues [26] The issues raised by this statutory appeal/judicial review include: A. Should the role of the Appeals Commission on the appeal/judicial review be limited? B. What is the appropriate standard of review to apply to the decision of the Appeals Commission?

C. Was the decision of the Appeals Commission unreasonable? IV. Analysis B. Role of the Appeals Commission on the Appeal/Judicial Review 1.

Arguments [27] The WCB asks that the Court be mindful of the limited role which the Appeals Commission may properly take on anappeal/judicial review, citing Skyline Roofing Ltd v Alberta (Workers’ Compensation Board), 2001 ABQB 624 at paras 33-34, 292 AR86; White v Alberta (Workers’ Compensation Board), 2006 ABQB 359, 400 AR 183; Sitler v Alberta (Workers’ Compensation Board),2003 ABQB 277, Vo v Alberta (Workers’ Compensation Board, Appeals Commission), 2006 ABQB 899, 411 AR 230 and Leon’sFurniture Ltd v Alberta (Information and Privacy Commissioner), 2011 ABCA 94, 502 AR 110, leave to appeal to SCC ref’d [2011]SCCA No 260. [28] The Appeals Commission submits that its written and oral participation in this matter is at the pleasure of the Court and theWCB should have raised its objections to the Commission making submissions on the substantive issues in this matters (i.e., issuesbeyond the appropriate standard of review) before or during the oral hearing. [29] The Estate of Mr.

Kanuga did not address this issue. Its submissions on the standard of review to be applied were brief andrelied to a large extent on the arguments advanced by the Appeals Commission. The Estate did present its own arguments on thesubstantive issue of the reasonableness of the Appeals Commission decision. 2.

Should the Appeal Commission’s role on the appeal/judicial review be limited? [30] In Northwestern Utilities v Edmonton (City), (SCC), [1979] 1 SCR 684, Estey J, for the Supreme Court ofCanada, advised that it was the policy of that court to limit an administrative tribunal whose decision was at issue on the appeal toproviding an explanation of the record and making representations relating to the tribunal’s jurisdiction, even if the tribunal was given aright to appear by its parent or authorizing statute.

Where the statute was silent as to the role of the tribunal on appeal or in judicialreview proceedings, the court would confine the tribunal to the issue of its jurisdiction. [31] In Brewer v. Fraser Milner Casgrain LLP, 2008 ABCA 160, 432 AR 188, the issue before the Court of Appeal was whethera statutory tribunal could appeal a judicial review ruling quashing its decision. Côté JA, who delivered the judgment of the court, notedthat in most judicial reviews, the tribunal is not a party in the traditional sense and need not be named a respondent if it has given up itsrecord already.

He expressed the view that allowing a tribunal on an appeal or judicial review to do more than explain the record ormake submissions on its own jurisdiction would be contrary to Northwestern Utilities. At para 38, he explained that the reasoningbehind this limitation is the danger of bias that might be created: Most statutory tribunals (unlike a commission of inquiry) are permanent bodies. So these same parties may well be back before the sametribunal with a similar dispute. Worse still, they may well soon be back before the same tribunal with this identical case.

Judicial reviewmerely lets the Court of Queen's Bench quash or not quash; its modern power to amend (R. 753.07) is extremely limited. Therefore, veryoften the Court of Queen's Bench sends the matter back to the tribunal to try again... [32] In Leon’s Furniture Ltd, the appellant challenged the standing of the Privacy Commissioner to make submissions on themerits of the appeal, citing Northwestern Utilities and Brewer.

Slatter JA, for the majority, characterized (at para 19) Côté JA’s remarksin Brewer about Northwestern Utilities as obiter dictum and commented that this obiter dictum appeared to be inconsistent with theearlier decision of the Alberta Court of Appeal in Rockyview (Municipal District No 44) v Alberta (Planning Board) (1982), 1982ABCA 249 , 22 Alta LR (2d) 87, 40 AR 344 (CA), leave to appeal granted [1982] SCCA No 44. The Court of Appeal inRockyview (Municipal District No 44) at para 8 suggested that the observations made in Northwestern Utilities about the role of a

tribunal on a subsequent appeal or judicial review of its decision might well have to be tempered by the court ’ s need for a full presentation on an adversarial basis. [ 33 ] Slatter JA stated at para 20 of Leon ’ s Furniture Ltd that: The Northwestern Utilities principle is easiest to apply in situations where the tribunal is exercising what would at the time of that decision have been called "judicial or quasi-judicial functions." Where an applicant and a respondent are present and are participating fully in the proceedings before the tribunal, and then before the court on judicial review (as was the case in Northwestern Utilities ), there is little need for the tribunal to be involved.

Where the tribunal is adjudicating over a dispute between two adversarial parties, it is especially important that the tribunal remain neutral. [ 34 ] However, he recognized that some tribunals wear many hats - those of investigator, prosecutor, and adjudicator of complaints and there are situations where the original complainant is not expected to participate except as a witness.

He suggested that the Northwestern Utilities principle has less applicability in these situations and that where the applicant's arguments on the merits will go unanswered, the tribunal ’ s appearance may be justified, citing Skyline Roofing Ltd at para 29. [ 35 ] Skyline Roofing Ltd involved an application for judicial review of a decision of the Appeals Commission upholding a decision of the Workers' Compensation Assessment Review Committee, which found that Skyline rather than its “ subcontractor ” was the employer of a particular individual.

Neither the “ subcontractor ” nor that individual appeared at the hearing of the application. The WCB appeared through counsel but its brief was limited to whether the pooling of labour policy was ultra vires . The Appeals Commission appeared through counsel and filed a brief on all of the issues before the court. Slatter J (as he then was) referred to the tradition that tribunals not appear on judicial review applications to support their own decisions.

At para 31, he commented that: “ [a]n exception might be made where there is no other party in opposition, as the Court will not otherwise hear full argument, but even in those circumstances the intervention of the Tribunal should be tempered. ” Slatter J noted the concern expressed by Estey J in Northwestern Utilities that more active involvement by a tribunal may discredit the impartiality of the tribunal. He found that concern to be particularly apt when dealing with an appeal tribunal created to review the decisions of another tribunal.

At paras 33 and 34, he stated: In those situations the other tribunal (here the Workers' Compensation Board) is available to support the decision, if that is felt advisable. In some circumstances it might even be that lower tribunal that is seeking judicial review. It is not uncommon for statutes to create a tribunal which not only makes decisions, but effectively sits in appeal from its own decisions. That this is an unhappy situation has been commented on many occasions.

Where, as here, the Legislature has seen fit to remedy this problem by creating an independent Appeals Commission, the system should not be undermined by the Appeals Commission itself attempting to support its own decisions. 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 of impartiality as between employers and workers on one hand, and the Board on the other...

The Appeals Commission is entitled to appear to argue truly jurisdictional issues relating to it, such as the standard of review to be applied, the related question of the expertise of the Appeals Commission, and any challenge to the jurisdiction of the Appeals Commission to hear a particular appeal. [ 36 ] The Court of Appeal in Leon ’ s Furniture Ltd adopted a flexible approach to the issue, suggesting at para 28 that the Northwestern Utilities case be used as a "source of the fundamental considerations." [ 37 ] In the present case, the widow and son of Mr.

Kanuga and their representative from the Office of the Appeals Advisors attended the hearing before the Appeals Commission. The DRDRB and Mr. Kanuga ’ s employer, which was listed as Respondent on the appeal, had been invited to attend, but did not do so. The Appeals Commission had before it the WCB file and written submissions made on behalf of the Estate. The Commission purported to act in essence as a tribunal of first instance on the appeal, stating at the hearing: This will be a new hearing today. It will be based on the evidence that you present to us, the evidence in our appeals document package.

At the end of the day we ’ ll make our own findings of fact and then we ’ ll make our own decision. [ 38 ] Two adverse parties, the WCB and the Estate, were present and participated in the statutory appeal/judicial review before this

Court. The WCB and the Estate were represented by legal counsel. In my view, both the WCB and the Estate were capable of making the necessary arguments. Whether they did so is another matter. This is not a situation where the statute gave carriage of the proceedings to the Appeals Commission. Under the circumstances, I am only prepared to entertain the arguments of the Appeals Commission on the appropriate standard of review and its

interpretation of what it said in its reasons. I will otherwise disregard its submissions. B. Standard of Review 1. Arguments [ 39 ] The WCB submits that the central issue dealt with by the Appeals Commission in its decision was the test to be applied to a determination of causation. It says this a question of law that is of central importance to the legal system and is outside the specialized area of expertise of the Appeals Commission. The WCB contends that the case law discloses that the appropriate standard of review to be applied to decisions of this nature made by the Appeals Commission is correctness.

It relies on the following authorities in advancing this argument: Elgie v Alberta (Workers ’ Compensation Appeals Commission) , 2009 ABCA 277 , 464 AR 127 ; Brand v Alberta (WCB, Appeals Commission) , 2006 ABQB 546 , 403 AR 200 and Embanks v Nova Scotia (Workers ’ Compensation Appeals Tribunal) , 2008 NSCA 28 at para 6 , 264 NSR (2d) 93 . [ 40 ] The WCB submits that, in the event the Court finds that existing jurisprudence has not determined the degree of deference that should be applied in this case, a contextual analysis of the factors set out in Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 also identifies the appropriate standard to be correctness.

The WCB notes that the Appeals Commission was required to apply the facts of Mr. Kanuga ’ s claim to WCB policy in order to determine the question of causation and that ordinarily this would warrant deference by the reviewing court.

However, it points out that the Supreme Court of Canada in Dunsmuir stated that a question of law that is of central importance to the legal system as a whole will always attract a correctness standard. [ 41 ] The WCB submits that the Appeals Commission in this case applied common law causation tests relating to negligence, which is a matter falling beyond its enabling statute and outside its scope of specialized expertise.

Moreover, common law tests of causation in negligence cases are a matter of general law. [ 42 ] The WCB argues that the privitive clause in s 13.1 of the WCA is less than a full privitive clause as the legislation provides for a statutory right of appeal on questions of law or jurisdiction and, as a result, less deference is warranted on a question of law: Buckley v Entz Estate , 2007 ABCA 7 at para 25 , 401 AR 231 , leave to appeal to SCC ref ’ d [2007] SCCA No 146; Alberta (Workers ’ Compensation Board) v Appeal Commission , 2005 ABCA 276 at paras 26-28 , 34, 71, 371 AR 318 [ Davick ]; Akita Drilling Ltd v Alberta (Workers ’ Compensation Appeals Commission) , 2003 ABQB 1030 at paras 16 , 17, 20, 22, 351 AR 230. [ 43 ] The WCB submits that as a result of the Court's greater relative expertise on the issue of common law causation, the appropriate standard of review of the Appeals Commission ’ s selection and application of the legal test is correctness. [ 44 ] The WCB acknowledges that the role of the Appeals Commission is central to the purpose of the WCA of providing a system of compensation independent of court involvement, as well as to the purpose of ensuring an expeditious means of dealing with injuries sustained by workers in the course of their employment.

The WCB submits that while this factor indicates that deference should be given to decisions of the Appeals Commission generally, it does not displace the other three considerations in the contextual analysis which favour applying the correctness standard. [ 45 ] The Appeals Commission submits that the Alberta Court of Appeal in Gahir v Alberta (Workers ’ Compensation Appeals Commission , 2009 ABCA 59 at para 13 , 448 AR 135 confirmed that its decisions on findings of fact, credibility and mixed fact and law are to be reviewed for reasonableness; decisions on the

interpretation of workers ’ compensation policies and the application of those policies to particular fact situations are to be reviewed for reasonableness; decisions interpreting sections of the Act lying within the expertise of the Board or the Appeals Commission and decisions applying that law to particular fact situations are to be reviewed for reasonableness; and true jurisdictional issues are to be reviewed for correctness. [ 46 ] The Appeals Commission maintains that Alberta (Information and Privacy Commissioner) v Alberta Teachers ’ Association , 2011 SCC 61 , [2011] 3 SCR 654 , Newfoundland and Labrador Nurses ’ Union v Newfoundland and Labrador (Treasure Board) , 2011 SCC 62 , [2011] 3 SCR 708 and Procrane Inc (Sterling Crane) v Alberta (Appeals Commission for Alberta Workers ’

Compensation) , 2012 ABQB 37 suggest that reasonableness should be the standard applied in reviewing an administrative tribunal ’ s

interpretation of its home statute, closely related statutes and frequently encountered common law principles. [ 47 ] The Appeals Commission contends that the standard of reasonableness has been held to apply to its decisions on whether a worker is entitled to compensation "generally," as such decisions involve

interpretation of WCB policies; Allsop v Alberta (Appeals Commission for Alberta Workers ’ Compensation ), 2011 ABCA 323 . [ 48 ] The Appeals Commission also notes that the Alberta Court of Appeal has determined that questions regarding medical evidence fall within its expertise and attract the reasonableness standard: Schroder v Workers' Compensation Board , 2010 ABCA 344 .

Further, it says the Alberta Court of Appeal in Shuchuk v Alberta (Workers ’ Compensation Board) , 2007 ABCA 213 established that the appropriate standard of review for questions of causation is reasonableness even if the issue is an extricable question of law, and that this case was followed in Melanson v Alberta (Appeals Commission for Alberta Workers ’ Compensation) , 2011 ABQB 104 . [ 49 ] The Appeals Commission submits that questions of whether compensation is to be paid clearly are within its expertise.

It contends that decisions made by it in that regard will have no impact on the common law test for causation. Accordingly, the appropriate standard of review is reasonableness. [ 50 ] The Appeals Commission maintains that the Supreme Court of Canada in Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professions , 2011 SCC 59 , [2011] 3 SCR 616 sent a clear message that administrative decision- making is entitled to deference.

The court in that case noted at para 5 that arbitrators are not required to apply common law principles in the same manner as courts as they have a different mission. To assist in their mission, they are given a broad mandate to adopt legal principles they consider relevant (para 6). The court commented that while common law and equitable doctrines emanate from the courts, arbitrators do not necessarily lack authority or expertise to apply them in a manner more appropriate to their own context. The court applied the standard of review of reasonableness.

The Appeals Commission contends that this reasoning is equally applicable to the workers ’ compensation system. [ 51 ] In reply, the WCB notes that the Court of Appeal in Shuchuk made it clear it was not purporting to state that the WCB could alter common law principles through its statutory policy-creating authority. [ 52 ] The WCB submits that Nor-Man does not address or affect the jurisprudence stating that an administrative tribunal ’ s selection of the applicable legal test is reviewed on the standard of correctness.

The WCB maintains its position that the standard of review with respect to the Appeals Commission ’ s selection of the material contribution test to determine the compensability of Mr. Kanuga's death under the WCA is correctness. [ 53 ] Alternatively, the WCB argues that if Nor-Man does suggest that deference is warranted, this would apply only to the application and not the selection of the legal test by the Appeals Commissions. The WCB maintains that the Appeals Commission's application of the legal test to determine causation was unreasonable. [ 54 ] The Estate of Mr.

Kanuga takes the position that the standard of review to be applied to the decision of the Appeals Commission is reasonableness for the reasons outlined by the Commission. 2. What is the appropriate standard of review? [ 55 ] According to Dunsmuir at para 57 , existing case law may be relied on in selecting the appropriate degree of deference to be accorded a tribunal with regard to a particular category of question if the necessary analysis already has been performed.

The majority stated at para 54 that deference generally is warranted when a tribunal is interpreting its home statute or other statutes closely connected to its function and with which it will have particular familiarity. The tribunal may also be entitled to deference if it has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context. Bastarache and LeBel JJ for the majority cited Toronto (City) v Canadian Union of Public Employees (CUPE), Local 79 , 2003 SCC 63 at para 73 , [2003] 3 SCR 77 for this proposition.

The court in CUPE stated at para 73:

In the field of labour relations, general common and civil law questions are often closely intertwined with the more specific questions oflabour law. Resolving general legal questions may thus be an important component of the work of some administrative adjudicators inthis field.

To subject all such decisions to correctness review would be to expand the scope of judicial review considerably beyond whatthe legislature intended, fundamentally undermining the ability of labour adjudicators to develop a body of jurisprudence that is tailoredto the specialized context in which they operate. [56] In my view, the same can be said of the Appeals Commission in dealing with common and civil law questions in the workers’compensation context. [57] The primary issue in this case was entitlement of Mr. Kanuga’s estate to benefits on his death.

Entitlement depended onwhether he had died “as a result of an accident.” It was common ground that for purposes of the WCA, an accident includes a disabling orpotentially disabling condition caused by an occupational disease (WCA, s 1(1)(a)(iv)). The live issue was one of causation. [58] On the Buckley appeal, the question was when does a worker’s fault take the worker out of the course of his employment anddeprive the worker of the statutory bar preventing an action against him by another worker in the system. The Court of Appeal consideredthis to be a pure question of law involving the proper

interpretation of several interrelated provisions of the WCA. At para 33, Slatter JA,who delivered the judgment for the court, confirmed that the proper standard of review for a question of law arising out of

interpretationof the Act is reasonableness. He was of the view that this level of deference recognizes the proper role of the Appeals Commission inapplying the principles that underlie the workers' compensation system and permits the court to correct obvious errors of law. [59] In Shuchuk at para 22, the Alberta Court of Appeal commented that a question of causation typically is one of fact and law,meaning that there would be no right of appeal. However, it indicated that

interpretation of WCB policy and the role that common lawcausation principles have in that analysis, involve extricable issues of law reviewable on appeal on a standard of reasonableness. [60] In Gahir at par 13, the Alberta Court of Appeal summarized the case law on the standards of review to be applied todecisions of the Appeals Commission, concluding in part that: b.

Interpretation of workers' compensation policies, and the application of policies to particular fact situations are reviewed forreasonableness: Buckley v. Entz Estate, 2007 ABCA 7, 71 Alta. L.R. (4th) 25, 401 A.R. 231 at para. 22. Whether a particular employeeis entitled to compensation, and the level of that compensation, generally falls into this category: Alberta (Workers' CompensationBoard) v. Alberta (Workers' Compensation Appeals Commission), 2005 ABCA 235, 44 Alta. L.R. (4th) 13, 371 A.R. 62 (the"Schumaker" decision) at paras. 25-27; Chauvet at paras. 20, 28. c. The

interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed forreasonableness, as is the application of that law to particular fact situations: Pasiechnyk v. Saskatchewan (Workers' CompensationBoard), (SCC), [1997] 2 S.C.R. 890; Buckley at para. 3 [61] Elgie also involved an issue of entitlement to benefits under the WCA. The question there was whether the separated spouseof the deceased worker was a “dependant” as defined in the Act. The Court of Appeal held that the issue was one of law arising out ofthe

interpretation of the Act and that it was outside of the scope of WCB policy and the purpose of the Act. It determined that existingjurisprudence did not establish the degree of deference to be afforded the Commission and, therefore, it proceeded to apply the fourfactors in Dunsmuir. As the question was one of law, the matter fell under the appeal provisions in the Act, with the result that theprivitive clause did not apply, signalling less deference. The court was of the view that resolving the question of law involved applyingprinciples of statutory

interpretation to terms that were not specific to the workers’ compensation context and deciding questions offamily law, both of which fell outside the scope of the tribunal’s specialized area of expertise. At para 32, the court stated: ... the Legislature here chose to import significant legal concepts from outside the workers’ compensation context with those sameexternal meanings intact. Therefore, the Commission should apply the same legal meanings to those concepts as tribunals and courts doin other legal contexts. The court determined that the standard of correctness should apply.

[ 62 ] Unlike the situation in Elgie , where it was clear that legal concepts from outside the worker ’ s compensation context had been imported with their external meaning intact, here the issue is more like that in Melanson , described by Lee J at para 29: ... the Appeals Commission had to answer the question: do the facts of the Applicant's situation satisfy the legal tests laid out in the WCA and the WCB Policies, cognizant of the role of common law principles of causation? [ 63 ] I agree with Lee J that this type of question is one of mixed fact and law, which supports review on a standard of reasonableness or, alternatively, if there is an extricable question of law involved, it is a question of law arising from

interpretation of the Appeals Commission's home statute and WCB policies which “ does not rise to the level of a question of law that is of central importance to the legal system as a whole and is outside the area of expertise of the Appeals Commission ” ( Melanson at para 30 ). [ 64 ] As stated by Clackson J in Procrane Inc (cob Sterling Crane) at para 12, the WCA is a no fault legislative regime designed to compensate injured workers and the WCB is routinely called on to decide questions relating to the cause of a claimed injury.

Clearly, such questions are within the expertise of the WCB and the Appeals Commission. As such, the appropriate standard of review is reasonableness. [ 65 ] In Nor-Man Regional Health Authority Inc , Fish J, who delivered the judgment of the Supreme Court of Canada, commented at para 44 that while common law and equitable doctrines emanate from the courts, that does not mean that arbitrators lack the legal authority or the expertise to adapt and apply those doctrines in a manner which is more appropriate to the arbitration of disputes and grievances in a labour relations context.

In my view, the same can be said of the WCB and Appeals Commission. They too have the necessary legal authority and expertise to adapt common law principles such as causation in a way which complies with the purpose of the WCA and conforms to WCB policy. [ 66 ] Further, as recognized by the Alberta Court of Appeal in Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers' Compensation) , 2012 ABCA 78 at para 15 , 522 AR 118 : The most recent pronouncements from the Supreme Court confirm that the general standard of review is reasonableness.

Apart from true issues of jurisdiction (a very narrow category), and issues that are clearly of importance to the legal system as a whole, virtually all questions of

interpretation of the "home statute" by an administrative tribunal like the Appeals Commission will be reviewed for reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association , 2011 SCC 61 at paras. 34 , 39 . Many of the issues before the Appeals Commission related to... the

interpretation of Board compensation policy, whether the employee was entitled to compensation, and the

interpretation of the Appeal Commission's home statute.

These are all issues within the core mandate of the Appeals Commission, and the standard of review is reasonableness. [ 67 ] Reasonableness is the standard of review that will be applied in the present case in terms of the appeal/judicial review of the decision of the Appeals Commission. [ 68 ] The Supreme Court of Canada in Dunsmuir at para 47 described the standard of reasonableness as follows: Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 69 ] I note that the WCB did not raise as an issue on this appeal/statutory review whether the Appeals Commission had applied the appropriate standard of review to the DRDRB decision.

C. Reasonableness of the Appeals Commission Decision 1. Arguments [70] The WCB points out that the Alberta Court of Appeal in Macoon v Alberta (Workers’ Compensation Board), 1993 ABCA 9, 135 AR 183 held that the phrase “arises out of... employment” in the definition of “accident” in s 1(1)(

a) of the WCA connotescausation. [71] It points to WCB Policy 01-03,

Part 1, which states that the compensability of a condition under the WCA is to be determinedon a balance of probabilities, meaning “more probable than not.” It notes that, under its policy-making authority in s 6(1)(

i) of the WCA,it issued Policy 04-08,

Part II, Application 1, Question 1, which sets out the criteria for determining whether a worker’s death iscompensable under the Act. Pursuant to that policy, the WCB pays fatality benefits only “when the worker’s compensable injury is thecause of death.” [72] The WCB argues that a worker’s compensable injury will be found to be the cause of his death if the weight of evidencesupports causation. It maintains that the question in the present case was whether asbestosis and/or pleural plaques caused Mr. Kanuga’sdeath or, to put it another way, but for these conditions, would Mr. Kanuga have died?

It says it is evident from s 24(2) of the WCA,WCB Policy: Principles of Alberta Workers’ Compensation and WCB Policy 03-01,

Part 11, Application 1, Question 1, that it is notsufficient that the condition(

s) merely contributed to his death if they did not cause it. [73] The WCB submits that as the applicable legal test was "but for the compensable injury would Mr. Kanuga have died," theAppeals Commission was obligated to weigh the medical evidence relating to the cause of death and determine the cause on the balanceof probabilities. Instead it stated that it could not determine with scientific accuracy whether "but for Mr.

Kanuga's compensableconditions he would have died when he did.” Although the Appeals Commission did detail the evidence supporting contribution as wellas the evidence opposing causation, it concluded that causation could not be decided with scientific accuracy and, therefore, it wasimpossible to determine using the "but for" test. [74] The WCB says that Clements v Clements, 2012 SCC 32 restated and clarified that scientific certainty of causation is notnecessary to establish causation on a “but for” basis. “Impossible” means a logical, not factual, impossibility. [75] The WCB takes the position that the Appeals Commission erred as the “but for” test was easily and properly applicable to thestraightforward question of causation: either the compensable asbestosis caused Mr.

Kanuga's death or it did not. The WCB maintainsthat the same evidence that formed the basis of the Appeals Commission’s decision that the asbestosis materially contributed to Mr.Kanuga’s death was in fact sufficient to form the basis of a decision under the “but for” test. [76] Further, it contends that the Appeals Commission misapplied the “but for” test by adding a temporal element. The WCBsubmits that this test, which has no basis in common law, would attribute causation to the asbestosis by virtue of a mere finding thatasbestosis accelerated Mr.

Kanuga's death by as little as one day or one hour notwithstanding that the renal cancer was the actual causeof death. It maintains that the WCA and WCB policy do not accept causation of death on this basis. [77] The WCB states that the Appeals Commission wrongly moved on to the material contribution test, which the Supreme Courtof Canada in Resurfice Corp made clear was only applicable in very specific and narrow cases, i.e., only if the following two criteriawere met: (

i) It must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test.The impossibility must be due to factors that are outside the plaintiff’s control; for example, current scientific knowledge; and (ii) It must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonablerisk of injury of the type which the plaintiff ultimately suffered.

[ 78 ] The WCB says that the Appeals Commission did not address the second criteria of the test and, in going beyond the “ but for ” test, the Appeals Commission decided the case on an application of common law principles which was contrary to Clements . [ 79 ] The WCB also contends that the material contribution test is contrary to the WCA and WCB policy, which require that actual causation be proved on a balance of probabilities. It submits that neither the WCA nor WCB policy extends compensation for death on the basis of an indeterminate degree of contribution.

If the evidence establishes that a condition contributed to a worker's death to the extent that it was the overriding or primary cause of death, then the “ but for ” test is entirely sufficient. It was improper for the AC to import this contribution element simply because it exists in negligence law. [ 80 ] The WCB argues that the Appeals Commission applied the material contribution test in an erroneous manner. It submits that the material contribution test does not translate easily, if at all, to WCA policy principles of causation and the standard of proof.

It argues that it is inapplicable as it is a test of risk, not causation, asking whether the conduct of a defendant materially contributed to the unreasonable risk of injury. [ 81 ] The WCB says that the Appeals Commission erred in applying the material contribution test as none of the evidence indicated that any contribution of Mr.

Kanuga ’ s asbestosis to his death was material, Indeed, none of the evidence spoke to degree of contribution at all. [ 82 ] The WCB submits that in order for a finding of contribution to be causative, the weight of the evidence would have to establish that the asbestosis would have caused Mr. Kanuga's death regardless of whether he had renal cancer and there is no such evidence.

The WCB says that error also renders the decision of the Appeals Commission unreasonable as there is no line of analysis within its reasons that reasonably could have led the tribunal from the evidence before it to its conclusions. [ 83 ] The WCB acknowledges that there may be circumstances where the Appeals Commission is required to apply principles of the common law in applying the WCA and WCB policy. However, it argues that the law imposes two restrictions on the Commission when doing so in the context of WCB appeals.

First, as recognized in Melanson at para 56 , "[t]he application of the provisions of the WCA and WCB Policy cannot be assigned a secondary role vis-a-vis the role which the common law principles of causation may have to play in any causation analysis of the Commission." [ 84 ] Second, in cases where the Appeals Commission engages in the application of common law principles, it is obligated to apply those principles in strict accordance with the common law jurisprudence. It has no legal authority to deviate from the common law.

The WCB argues that the material contribution test does not translate into the workers' compensation context where causation is a purely factual determination, unlike negligence. The material contribution test was devised to answer the question who is at fault. It does not address the question of what was the cause. As a result, it is inapplicable in determining cause in a no-fault compensation system. [ 85 ] The Estate takes the position that it was reasonable for the Appeals Commission to attempt to apply the “ but for ” test and then to apply the material contribution test to determine causation.

It says that contribution leads to liability in personal injury law. [ 86 ] The Estate argues that there is a lack of legislative authority for the balance of probabilities test advocated by the WCB, as it applies only to questions with a “ yes ” or “ no ” answer.

It submits that it would be against public policy to let employers avoid liability simply because a compensable occupational disease is a 49 percent cause of a worker ’ s death rather than a 51 percent cause. [ 87 ] The Estate says that it was appropriate for the Appeals Commission to add a temporal element to the “ but for ” and “ material contribution ” tests as we all die and it was relevant that asbestosis may have hastened Mr. Kanuga ’ s death. It submits that in all the circumstances the decision of the Appeals Commission was reasonable. 2. Was the decision of the Appeals Commission unreasonable?

[ 88 ] The Appeals Commission identified the primary issue before it as: 1. Are the worker ’ s dependents entitled to fatality benefits pursuant to the WCA ? [ 89 ] It concluded that they were. The Appeals Commission recognized that in addressing the central issue, it would be necessary to determine the relationship of Mr. Kanuga ’ s death to his compensable conditions. [ 90 ] The Appeals Commission considered the applicable legislation, including ss 24 and 70 of the WCA , which provided: 24(1) Subject to this Act, compensation under this Act is payable . . . (

b) to the dependants of a worker who dies as a result of an accident . 70(1) If a worker dies as a result of an accident and leaves a dependent spouse or dependent adult interdependent partner, a pension is payable to the dependent spouse or dependent adult interdependent partner in an amount equal to the pension the worker would have received had the worker lived and been permanently totally disabled. [Emphasis added.] [ 91 ] “ Accident ” for purposes of workers ’ compensation means an accident that arises out of and occurs in the course of employment in an industry to which the Act applies and includes “ a disabling or potentially disabling condition caused by an occupational disease ” ( WCA , s 1(1)(a)(iv)). [ 92 ] Mr.

Kanuga ’ s asbestosis and bilateral pleural plaques had already been accepted by the WCB as compensable as it found that those conditions arose out of and occurred in the course of his employment. [ 93 ] The Appeals Commission recognized that s 10 of the

Interpretation Act mandates that enactments be construed as being remedial and be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objectives. It noted that in Shuchuk at para 46 , the Alberta Court of Appeal held that “ [g]enerally the Act is to be given a broad liberal

interpretation, which allows compensation to be provided to as many workers in as many circumstances as the legislative scheme will reasonably permit, ” even in situations when tort law would leave them without a remedy. [ 94 ] The court in Shuchuk stated that in the absence of clear legislative direction to the contrary, the WCB, at a minimum , should provide compensation for situations that would result in compensation under the traditional tort law (emphasis added). It did not say those were the only situations where compensation should be paid.

In fact, at para 41, the court agreed that the WCB, as part of its policy-making function, could adopt causation principles differing from those applied by tort law. [ 95 ] The Appeals Commission reviewed certain of the following relevant WCB policies: Policy 02-01,

Part I The meaning of accident is satisfied when it can be shown that a worker ’ s employment has contributed to personal injury, occupational disease, or death . [Emphasis added.]

Policy 03-01,

Part II 4.0 Relationship Between the Injury and Compensable Accident Many injuries (e.g., strains, sprains, burns, cuts, etc.) have an obvious relationship to the compensable accident; consequently, determining the WCB ’ s level of responsibility is relatively simple. However, there are other injuries which, because of their progressive nature or less obvious relationship to employment, require consideration of relevant factors both in and outside employment which may have contributed to or caused the injury . [Emphasis added.] Policy 04-08,

Part I Policy: If a worker dies as a result of a compensable accident , the WCB pays compensation to the worker ’ s dependants and assists with the payment of costs associated with the worker ’ s death . Policy 04-08,

Part II Application 1 - General 1. Does the WCB pay fatality benefits whenever a worker with a compensable injury dies? The WCB pays fatality benefits only when the worker ’ s compensable injury is the cause of death . For example, if a worker with a progressive work-related disease such as asbestosis dies because of the disease , the worker ’ s dependants are eligible for fatality benefits.

However, if the same worker with asbestosis is killed in an unrelated car accident , the dependants are not eligible for benefits because the cause of death was not related to the work injury . [Emphasis added.] [ 96 ] The Appeals Commission determined that the phrase “ cause of death ” in WCB Policy 04-08 should not be interpreted as requiring that the compensable condition be the sole or only cause of death. This is consistent with tort law. Erik S Knutsen in his

article “ Clarifying Causation in Tort ” (2010) 33:1 Dal LJ 153 at 168 remarked that: There are nearly always multiple potential causes for any plaintiff ’ s injury. Sometimes the causes are the results of negligent behaviour... Sometimes the causes are unrelated to the negligence of the defendants but occurring in nature or internally within the plaintiff. Sometimes there is a combination of these two classes of causes. [ 97 ] In Athey at para 17 , the court confirmed that it is not necessary for a plaintiff to establish that the defendant ’ s negligence was the sole cause of the injury as long as it contributed to or was a part of the cause of the injury.

[ 98 ] The Appeals Commission ’ s determination in this regard also is consistent with WCB Policy 02-01,

Part I, which requires that the worker ’ s employment must have “ contributed to ... [his] death . ” Further, it is a reasonable

interpretation of Policy 04-08,

Part II, Application 1. In the examples given of a worker with asbestosis, the worker ’ s dependants are eligible if the worker dies “ because of ” the disease, but not if he dies from an “ unrelated ” car accident. Neither example mandates a single cause of death. [ 99 ] The Appeals Commission acknowledged that the default test for causation in tort law is the “ but for ” test. [ 100 ] As noted in the Knutsen

article at pp 157-158: The test requires that a fact-finder ask: “ but for ” the defendant ’ s negligent behaviour, would the plaintiff have suffered some injury? The defendant ’ s negligence only has to be “ a ” cause, not “ the ” sole cause, and there may be other tortious and non-tortious causes in the mix. ... The “ but for ” test is not about discovering what factor really caused the accident, in the real world. Nor is it about what really happened factually to bring about the turn of events which resulted in injury.

The only purpose the test serves is to determine the link between the at-fault conduct of the defendant and the plaintiff ’ s alleged harm caused by that at-fault defendant. [ 101 ] The Appeals Commission modified the “ but for ” test to consider whether Mr. Kanuga would have died when he did had it not been for his compensable conditions.

In my view, it was reasonable for the Appeals Commission to interpret the death benefit eligibility requirement in the Act and WCB Policy 04-08 that the worker must have died as a result of a compensable accident as including situations where the worker ’ s death has been hastened by the accident (emphasis added). Therefore, it was reasonable for it to add the temporal element to the “ but for ” test. [ 102 ] The Appeals Commission acknowledged that there was medical opinion that suggested Mr.

Kanuga would have died from the effects of renal cell cancer in any event, but recognized that the focus of its inquiry was the relationship between Mr. Kanuga ’ s compensable conditions and his death. It stated that an argument could be made that “ but for ” his compensable conditions, his death would not have occurred when it did.

However, the Appeals Commission found that it could not “ conclusively ” answer the “ but for ” test as it could not determine, with scientific accuracy, whether “ but for ” the worker ’ s compensable conditions he would have died at the time he did given there was evidence on both sides of the question. [ 103 ] The Appeals Commission misconstrued the degree of proof necessary to satisfy the “ but for ” test. Under tort law, the plaintiff need only satisfy the “ but for ” test on a balance of probabilities.

That test is workable in almost all circumstances other than the rare case. [ 104 ] While not expressly mentioned by the Appeals Commission, WCB Policy 01-03,

Part 1, also allows for compensation even when the “ but for ” test cannot be met on a balance of probabilities because there is a “ draw ” in the evidence. It provides that: Policy: If all the evidence for and against a decision on a claim is equally balanced, the benefit of doubt goes to the injured worker.

Interpretation: 1.0 Benefit of Doubt A worker is not required to provide proof beyond a reasonable doubt in support of a claim for compensation. Adjudication is determined on the balance of probabilities, based on all the facts. If, however, there is doubt on any issue because the evidence equally supports one or more decisions, the WCB will resolve the issue in the worker ’ s favour. The principle of benefit of doubt, however, is not to be used:

∙ as a substitute for lack of evidence, or ∙ in a purely speculative sense, or ∙ when the issue can be decided on the balance of probabilities. [105] The Appeals Commission noted that Mr.

Kanuga was assessed on a retroactive basis as having had a 50 percent permanentimpairment as of February 2001 as a result of his asbestosis and bilateral pleural plaques. [106] The Appeals Commission considered all of the evidence, including evidence to the contrary, and concluded that the weight ofmedical evidence, including the following, supported a determination that the worker’s compensable conditions “played a role in hisdeath” and “were involved in his cause of death:” ∙ the March 21, 2006 hospital report stating Mr.

Kanuga died from pneumonia, carcinomatosis, renal cell carcinoma, andassociated asbestosis of the lungs with lung cancer.” ∙ the May 15, 2006 autopsy report stating: “Cause of Death for Medical Certificate of Death:

Part I - Immediate Cause of Death (A)Metastatic Renal Cell Carcinsoma;

Part II - Other significant conditions contributing to the death but not causally related to theimmediate cause (

A) above; Non-neoplastic Asbestos related Pulmonary Disease.” ∙ the January 13, 2009 examining pathologist’s report stating: “I believe the non-neoplastic asbestosis related disease is acontributing factor in the death of Mr. Kanuga. It is not simply a coincidental finding purely from my records. Mr. Kanuga had cancer ofthe kidney (renal cell carcinoma) which had spread to his body organs, specifically the liver, lungs and lymph nodes. Although thecancer is deemed to be the primary contributor to what killed him at the time of his death, it did involve his lungs.

In addition, the lungswere involved with asbestosis related pulmonary disease. This would [have had] an additive affect on decreasing lung function in relationto his death when combined with the cancer which had spread to his lungs from his kidneys...

I do not believe that the two conditions areequal in their relationship to the death, the primary condition being his metastatic renal cell carcinoma and a lesser contributing conditionbeing his non-neoplastic asbestosis related pulmonary disease.” ∙ the WCB medical consultant’s October 29, 2009 report stating: “This is also compatible with the statement from the [examiningpathologist] that the asbestosis condition was the lesser contributor to the worker’s death.” ∙ Mr.

Kanuga’s treating pulmonary specialist opined in a November 17, 2009 report that his compensable condition “almostcertainly contributed to his death. [107] The Appeals Commission purported to resort to the “material contribution” test in tort law. It interpreted the test as beingwhether the compensable conditions were a material contribution to Mr. Kanuga’s death. In fact, the tort test is whether the defendant’sbreach of the duty of care materially contributed to the risk of injury.

Use of that test in negligence law is restricted to those rarecircumstances where factual “but for” causation cannot be shown because one or more of a number of negligent acts by multiple actors infact caused the injury, but it is impossible for the plaintiff to establish on a balance of probabilities which negligent actor or actorscaused the injury (Clements at para 13).

That was not the situation here. [108] However, as stated in dissent in Kovach v British Columbia (Workers' Compensation Board) (1998), (BCCA), 108 BCAC 283 at para 26 by Donald JA, with whose reasons the Supreme Court of Canada substantially agreed on appeal fromthe judgment of the British Columbia Court of Appeal (2000 SCC 3, [2000] 1 SCR 55): “... the review test must be applied to the resultnot to the reasons leading to the result. In other words, if a rational basis can be found for the decision it should not be disturbed simplybecause of defects in the tribunal's reasoning.”

[ 109 ] Neither the WCB nor the Appeals Commission was restricted by the tort tests for causation. In Kovach , Donald JA commented at para 28: The Board was not bound to apply common law principles of causation, such as novus actus interveniens , in deciding the matter. No single theory of causation can be said to be infallible or universally applicable. What works for a tort based system may be unsuitable for a no fault scheme. It all depends on the policy goals of the system.

The Board may decide that in order to encourage workers to undergo treatment for their industrial injuries, it must cover mistakes made during treatment. It may decide that it is unfair to deny coverage in such circumstances or inconsistent with a broadly inclusive policy of worker protection. [ 110 ] The role of the WCB and the Appeals Commission was to determine if Mr. Kanuga ’ s death was the result of his compensable conditions.

Did his compensable conditions cause his death? [ 111 ] In making that determination, it was reasonable for the Appeals Commission to take the view that death is the result of a compensable condition if that condition is connected or related to and materially contributes to the death. [ 112 ] While there was evidence on both sides of the question, it is clear from the decision of the Appeals Commission that it was satisfied that Mr. Kanuga died as a result of his compensable injuries in that they played a material role in, were involved in, and materially contributed to his death. They were a cause of his death.

As a result, the decision of the Appeals Commission that Mr. Kanuga ’ s dependents were entitled to fatality benefits under the WCA fell within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. V. Conclusion [ 113 ] The judicial review/statutory appeal is denied. If the parties cannot agree on costs, they may file an application within 30 days of the release of this decision to have me determine the matter. Heard on the 23 rd day of February, 2012. Dated at the City of Edmonton, Alberta this 28 th day of November , 2012. D.A. Sulyma J.C.Q.B.A. Appearances: Jason J.J.

Bodnar

for the WCB Sandra R. Hermiston for the Appeals Commission Richard A. Renz Renz Law Offices for the Estate of Ronald Kanuga