Baker v Drouin, 2017 ABQB 204

Court of Queen’s Bench of Alberta Citation: Baker v Drouin, 2017 ABQB 204 Date: 20170324 Docket: 1301 05195 Registry: Calgary Between: Brian Stephen Baker Applicant - and - Johanne Drouin, John Hickie, Marj Langkamp, Alvin Fernandes, Christopher McDougall, Ed Chapelle, The Workers’ Compensation Board of Alberta and Appeals Commission for Workers’ Compensation Respondents _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice P.R.

Jeffrey _______________________________________________________ Introduction [ 1 ] Brian Baker seeks judicial review of a decision of the Appeals Commission for Alberta Workers’ Compensation, issued on August 5, 2016. [ 2 ] In that decision the three-member hearing panel considered an appeal of a finding that Mr. Baker was not entitled to an increase in his current permanent clinical impairment (PCI) rating of 25%. That finding was made by the Dispute Resolution and Decision Review Body (DRDRB).

The Appeals Commission varied the DRDRB decision, finding that due to insufficient medical evidence, it was unable to determine if Mr. Baker was entitled to an increase in his PCI rating. The Appeals Commission remitted the matter to the Workers’ Compensation Board for further medical investigation.

[3] During the hearing of the appeal, Mr. Baker asked to make additional submissions and provide additional documents to thehearing panel. He also provided documents and submissions post-hearing to the Commission. The Appeals Commission declined toconsider the documents or submissions and provided reasons for doing so in its decision. [4] Mr. Baker applied for judicial review of the Appeals Commission’s refusal to accept the additional submissions anddocuments. He filed an Originating Application for judicial review on February 3, 2017.

His Application named the AppealsCommission and a number of others, including the WCB, WCB employees and associated physicians. He served the AppealsCommission with his Application on February 9, 2017. He has not served any of the other parties he named. [5] The Appeals Commission asks me to strike Mr. Baker’s Application for judicial review. The Commission says that Mr.Baker failed to comply with the requirements for service. The six-month deadline for filing and serving the Application expired onFebruary 5, 2017. Mr.

Baker served the Application on the Commission on February 9, 2017, and has not served any of the other partieshe named. [6] For the reasons that follow, I grant the application of the Appeals Commission. Mr Baker missed the deadline for serving his application [7] The Workers’ Compensation Act, RSA 2000, c W-15 (Act) and the Alberta Rules of Court, AR 124/2010 (Rules), bothrequire an application for judicial review to be filed and served within six months from the date of the decision being appealed. [8]

Section 13.4(4) of the Act states:

(4) An application must be filed with the Court and served on the Appeals Commission and the other parties to the appeal, all within6 months after the date of the decision that is being appealed. [9] Rule 3.15(2) and (3) of the Rules state:

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filedand served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.

(3) An originating application for judicial review must be served on (

a) the person or body in respect of whose act or omission a remedy is sought, (

b) the Minister of Justice and Solicitor General or the Attorney General for Canada, or both, as the circumstances require, and (

c) every person or body directly affected by the application. [10] Mr. Baker filed his Application on February 3, 2017, within the six-month deadline. He did not serve the AppealsCommission before the six-month limitation expired, or any of the other required parties.

The deadline is strictly applied [11] The limitation period has been in the Rules for many years and has been strictly applied by this Court repeatedly: SkylineRoofing Ltd. v Alberta (Workers' Compensation Board) (1996), (AB KB), 186 AR 69, [1996] AJ No 690 (ABQB);Hamilton v Wildrose School Division, 1998 ABQB 1084, [1998] AJ No 1372; R v Bayda & Associates Surveys Inc (1997), (AB KB), 5 Alta LR (3d) 95, 207 AR 28 (ABQB); F.

Prins Potatoes Ltd v Agriculture Financial Services Corp, 2015ABQB 335, [2015] A.J No. 578; Yuill v Alberta (Workers’ Compensation Appeals Commission), 2016 ABQB 369, [2016] AJ No 695; Raczynska v Alberta (Human Rights Commission), 2015 ABQB 494, 91 Admin LR (5th) 165. [12] The Alberta Court of Appeal has also confirmed that rule 3.15 (formerly rule 753.11) is to be applied strictly: AthabascaChipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29, 505 AR 72, at para 27; see also Alberta Union of ProvincialEmployees v Alberta, 2001 ABCA 309, 303 AR 1. [13] The strict deadline provides finality and closure to administrative decisions such as that of a tribunal like the AppealsCommission.

The time limit allows persons affected by the decision on both sides to know when the outcome is final and allows them tomove on. This was explained by Veit J. in Johannesson v Alberta (Workers' Compensation Board, Appeals Commission) (1995), (AB KB), 32 Alta LR (3d) 373, 175 AR 34 (ABQB), at para 34: ... The Rules establish a 6 month limit within which a motion for judicial review must be brought.

This limitation reflects a policydecision to the effect that, ordinarily, when a properly constituted tribunal makes a decision, that decision is binding; any challenge tothat decision must be made promptly because the rights and responsibilities of many persons may be affected by the decision. All ofthose people who are directly and indirectly affected by such a decision cannot be left in limbo indefinitely. There must be closure,finality, so that everyone can move on.

It is therefore important to move to set aside or challenge a decision within 6 months of the daywhen the decision is issued. [14] Recent cases have considered whether all parties to the Application must be served before the deadline or if service just on thedecision-maker alone is sufficient. [15] For example, in Zimmer v Alberta (Workers’ Compensation Board, Appeals Commission), unreported, (7 October 2015)

Edmonton 1403-00907 (ABQB), the Applicant sought judicial review of a decision of the Appeals Commission of Alberta Workers’ Compensation. The Applicant named the Appeals Commission and the Workers’ Compensation Board in the Originating Application and filed and served those parties within the required time. The worker’s employer, Clean Harbors, was not named or served, and later objected to the judicial review proceeding. Justice Simpson concluded that the limitation period is applied strictly and that it left the Court with no room to maneuver.

He agreed with other case law that this is harsh, but noted there was no authority in the Judicature Act or from the Court of Appeal to allow for relief from the strictness of the statute and the Rules . As an employer, Clean Harbors was a party at risk in the proceedings because it faced the potential of increased premiums if the initial decision were reversed, citing Boyd v Alberta (Workers’ Compensation Board) , 2015 ABCA 120 , p 4. This is because the Workers’ Compensation scheme “is one funded by the employers of workers and it is the employer who faces the significant risk of increased premiums”, p 4.

Section 13.4(4) of the Act requires service on the Appeals Commission and other parties to the appeal. Clean Harbors had been a party to the appeal but was not served, which was fatal in that case. [ 16 ] In Yuill , Martin J. (as she then was) considered essentially the same issue. The Applicant was self-represented and sought judicial review of an Appeals Commission decision finding that her shoulder and neck injuries were not traceable to a compensable injury. She filed and served her Originating Application on time to the Appeals Commission, but did not serve her former employer with the Application.

The employer had played no role before the Appeals Commission and the Applicant stated that she was told she did not need to serve her employer. [ 17 ] Justice Martin reviewed the applicable provisions in the Act , the Rules and the related case law. She noted that the Application had been served and filed within six months on the Appeals Commission. The question was whether there could be some latitude relating to service on other affected parties if the Commission had been properly served.

After reviewing the findings in Zimmer , Justice Martin concluded that the case highlighted the “importance of providing service on the employer” and held that based on this reasoning, the failure to serve the employer meant the Applicant could not succeed (see paras 76-78). I have no Discretion to Extend the Deadline [ 18 ]

Section 13.4(5) of the Act says:

(5) The Court may not enlarge the time period referred to in subsection (4). Rule 3.15(2) prohibits the Court from using rule 13.5 to extend the time limits in rule 3.15. As Justice Martin noted in Yuill , at para 78 : [t]he Court is without discretion to permit the matter to proceed because the provisions of the Act and the Rules do not permit the extension of time for service in this instance. A judge cannot amend a time limit in a statute by shortening or extending unless a statute gives that power: see, Kehewin Cree Nation v.

Mulvey , 2013 ABCA 294 , at paras 10-11 , 556 A.R. 282. [ 19 ] I considered whether this Court’s inherent jurisdiction might nevertheless allow me to provide an extension to the time limit. As a court of superior jurisdiction under s 96 of the Constitution Act, 1867 , the Court of Queen’s Bench retains inherent powers which allow it to intervene in certain situations to ensure the ends of justice are being served.

These inherent powers were described by the Supreme Court in Endean v British Columbia , 2016 SCC 42 , 401 DLR (4 th ) 577, as follows at para 23: The inherent powers of superior courts are central to the role of those courts, which form the backbone of our judicial system.

Inherent jurisdiction derives from the very nature of the court as a superior court of law and may be defined as a “reserve or fund of powers” or a “residual source of powers”, which a superior court “may draw upon as necessary whenever it is just or equitable to do so, and in particular to ensure the observance of the due process of law, to prevent improper vexation or oppression, to do justice between the parties and to secure a fair trial between them”: I. H.

Jacob, “The Inherent Jurisdiction of the Court ” ... [ 20 ] Since these powers are defined broadly and loosely, the Supreme Court has also cautioned that they be exercised sparingly and with caution. Accordingly, when deciding whether it is proper to call on its inherent jurisdiction, a court must first consider how its powers are defined through express grants of statutory authority, Endean at para 24 : The courts have recognized that, given the broad and loosely defined nature of these powers, they should be “exercised sparingly and with caution”: Caron, at para. 30.

It follows that courts should first determine the scope of express grants of statutory powers before dipping into this important but murky pool of residual authority that forms their inherent jurisdiction: see, e.g., Century Services Inc. v. Canada (Attorney General), 2010 SCC 60 , [2010] 3 S.C.R. 379, at paras. 63-68 .

As The Honourable Georgina Jackson and Janis Sarra write, “[i]t is only where broad statutory authority is unavailable that inherent jurisdiction needs to be considered as a possible judicial tool to utilize in the circumstances”... [ 21 ] Inherent powers may be limited by statute, such as the Act and the Rules here. This was made explicit by the Supreme Court’s approval in R v Caron, 2011 SCC 5 , [2011] 1 SCR 78, at para 32 , of the following further statement of I. H.

Jacob in “The Inherent Jurisdiction of the Court”, supra : ... the court may exercise its inherent jurisdiction even in respect of matters which are regulated by statute or by rule of court, so long as it can do so without contravening any statutory provision. [Emphasis in Caron ] At para 62 of Endean the Supreme Court added: Of course, these inherent powers may be limited. The exercise of inherent jurisdiction is subject to the constraints of the Constitution, as well as to any statutory provisions and common law rules that might limit the court's ability to exercise that power...

[ 22 ] The applicable provisions of the Act and the Rules both specifically prohibit extensions to the six-month time limit. It would be contrary to those statutory provisions and contrary to “observ[ing] ... the due process of law” (para 23, Endean ) if I were to allow an extension. The six-month time limit is in place to ensure fairness to all parties who are drawn into administrative proceedings and who depend on and need finality in such decisions. If I had the discretion, I would not extend the deadline in this case [ 23 ] Mr. Baker is self-represented.

It was clear he put a lot of effort into his submissions. He presented his case vigorously and passionately. He prepared extensive background and supporting documentation relating to his claim. He presented it in a logical sequence with clarity. [ 24 ] Mr. Baker explained that after receiving the Appeals Commission decision he wishes the Court to review, he reached out to the Advisor that the Appeals Commission supplied to assist him. He asked for help in understanding the decision and what he could do to oppose it. Mr.

Baker said he received no reply to his written requests, or to his follow-up phone calls for help. Mr. Baker also reached out to others for assistance, writing to the RCMP as well as the Minister of Labour. [ 25 ] Mr. Baker admitted that he read the letter from the Appeals Commission accompanying the decision. That letter informed him that if he wished to appeal he must proceed at the Court of Queen’s Bench within six months. He said it was difficult without a lawyer to assist him. He said that he prepared his Originating Application on his own.

He filed it on time by pawning his computer in order to pay the filing fee. He filed it on Friday February 3, 2017. Mr. Baker then served the Application on the Appeals Commission in person on Thursday February 9, 2017 at its Calgary office. While there, Mr. Baker gave the Appeals Commission an additional copy of the Application and asked them to include it in its courier to the WCB, as he could not afford a courier. [ 26 ] He also said that he could not afford to serve all of the parties, nor did he have addresses for all of them, including his former employer.

He needed help and expressed frustration at his inability to get assistance with the process. [ 27 ] Despite Mr. Baker’s sympathetic circumstances and compelling manner, even if I had discretion to extend the deadline in his case I would be unlikely to do so, for four reasons. First, Mr. Baker has not been denied access to justice by reason of limited funds. The Act establishes a comprehensive regime for those in its system to be heard, sometimes more than once. Those processes involve decision makers with expertise in the subject matter being heard.

The government in establishing this administrative regime intended rights of appeal, but internal administrative appeal mechanisms, not in court. It avails assistance for Albertans contending with those internal processes. It intended only a very limited role for the courts. That is its prerogative. By all appearances, Mr. Baker has been accorded access to that complete administrative regime. [ 28 ] Second, the judicial review Mr. Baker hopes for has very little chance of success. The concern Mr.

Baker wishes to raise in his intended judicial review (that some additional information also be considered by the Appeals Commission) was considered by the Appeals Commission but declined. It is very likely that this court on any judicial review would defer to the Appeals Commission as master of its own process in respect of that decision. [ 29 ] Third, when I asked Mr. Baker how he knew to write “Originating Application” on his filed Application, he admitted that he read rule 3.15. He was capable of and did look up the applicable rule.

He was able to prepare a sufficient Originating Application that the Clerk of the Court accepted for filing. That rule is as clear about the requirements for service of the Originating Application as it is about applying by Originating Application. [ 30 ] Finally, the Rules apply equally to all litigants, whether represented by a lawyer or representing themselves: rule 1.1(2) ; see also Racznyska , at para 65. Conclusion [ 31 ] Therefore Mr. Baker’s Originating Application cannot proceed and is hereby struck. [ 32 ] It appears that the Appeals Commission referred Mr.

Baker’s case for further medical investigation and I do wish him success in that process. Heard on the 1 st day of March, 2017. Dated at Calgary, Alberta this 24 th day of March, 2017.

P.R. Jeffrey J.C.Q.B.A. Appearances: Mr. Brian Baker, Self-represented Applicant Jay Williamson, for the Respondent, Appeals Commission for Alberta Workers’ Compensation