Gallant v Alberta (Workers' Compensation Board), 2017 ABQB 520

Court of Queen’s Bench of Alberta Citation: Gallant v Alberta (Workers' Compensation Board), 2017 ABQB 520 Date: 20170828 Docket: 1603 04253 Registry: Edmonton Between: Dean Gallant, Jesse Buhay, Patrick Ottley, and Peter Stewart Applicants - and - Alberta (Workers’ Compensation Board) and David Tanguay Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice D.L.

Shelley _______________________________________________________ Introduction [ 1 ] The Applicants seek judicial review of the decision of the Dispute Resolution and Decision Review Body [The DRDRB] of the Workers’ Compensation Board [WCB], issued on September 15, 2015 (the Decision). The DRDRB determined that there were justifiable reasons for extending the one-year limitation period within which one of the Respondents, Mr. Tanguay, a claimant for compensation, could apply for the review of a claims adjudicator’s decision, pursuant to section 46(1) of the Workers’ Compensation Act , RSA 2000, c W-15 [ WCA ].

Background [ 2 ] On February 21, 2012, the Applicants and Mr. Tanguay were involved in a motor vehicle accident on Highway 16, near Stony Plain, Alberta [the Accident]. The Applicants, employees of Topline Drywall, were all in one vehicle travelling to a jobsite in Nisku from their main office in Whitecourt. Mr. Tanguay was a travelling salesperson.

[ 3 ] The Applicants sustained injuries. They filed claims with the WCB, which were approved in March 2012. Mr. Tanguay was not injured in the Accident, and therefore did not file a claim with the WCB. [ 4 ] On April 4, 2012, the WCB determined that Mr. Tanguay was not in the course of his employment at the time of the Accident [Initial Determination]. The Initial Determination was not provided to Mr. Tanguay by the WCB. Instead, on that day, a legal assistant with the WCB sent a letter regarding the Initial Determination to Mr. Tanguay’s insurer, Wawanesa Mutual Insurance Company [Wawanesa]. The letter indicated that: (

i) the WCB was required to determine the status of Mr. Tanguay at the time of the Accident; (ii) the investigation was completed following a telephone conversation on March 19, 2012; (iii) it was determined that Mr. Tanguay “was not in the course and scope of employment” at the time of the Accident; and (iv) Mr. Tanguay could appeal the Initial Determination within one year from the date of the letter. [ 5 ] On February 19, 2014, the Applicants each filed actions against Mr. Tanguay, collectively seeking damages in an amount exceeding $12,000,000. [ 6 ] On December 4, 2014, counsel for Mr.

Tanguay wrote to the WCB asking for a determination of his status at the time of the Accident and whether the statutory immunity provision under the WCA , s 23 applied to Mr. Tanguay. This letter also indicated that, at the time of the Accident, Mr. Tanguay “was working as a sales representative for Hawkeye Industries Inc” and that both that company and Mr. Tanguay “were WCB-insured” when the Accident occurred. [ 7 ] On December 18, 2014, the WCB replied that a decision had been made on the issue, and a letter regarding it had been sent to Wawanesa.

The reply letter advised that, since the one-year limitation period to appeal that Initial Determination expired on April 4, 2013, counsel could contact the DRDRB to request an extension of time to facilitate the requested status determination. [ 8 ] On January 6, 2015, Mr. Tanguay submitted a request for an extension of time based on new information in respect of his working status. [ 9 ] On February 5, 2015, the DRDRB Chair’s Delegate (Ms. Dutchin) found no justifiable grounds to waive the time limit, given the telephone conversation that Mr. Tanguay had with WCB’s legal assistant.

The DRDRB advised that, if Mr. Tanguay obtained “new evidence with respect to the April 4, 2012 decision,” he could submit the information to the WCB. [ 10 ] Consequently, Mr. Tanguay submitted a sworn statement, dated March 26, 2015. It included statements that: (

i) at the time of the Accident, Mr. Tanguay was “travelling to the City of Grand Prairie, on a sales call”; (ii) Mr. Tanguay “did not speak with [the WCB legal assistant] on March 15, 2012” – (the April 4, 2012 Letter from the WCB to Wawanesa indicates the conversation was on March 19, 2012); (iii) Mr. Tanguay had “no recollection of ever being contacted by or speaking with a representative of the WCB following the Accident, concerning the particulars of [his] employment,” including the name of his employer, his position, job duties, or the reason for his travel; and (iv) on February 22, 2012, Mr.

Tanguay informed Wawanesa of his involvement in the Accident while travelling for work in Grand Prairie, and that “[i]f Wawanesa provided any information to WCB [that] was contrary to the information [he] provided to Wawanesa, the information provided by Wawanesa to the WCB was incorrect”: Record of the WCB, Vol 2/Tab 40 (Appendix ‘A,’ Tab 4). [ 11 ] On March 26, 2015, counsel for Mr. Tanguay wrote to the WCB, and submitted Mr. Tanguay’s sworn statement as “new evidence,” pursuant to WCB Policy 01-02

Part 1 (the New Evidence Policy). [ 12 ] In a letter, inaccurately dated December 18, 2014 (Record of the WCB, Vol 1/Tab 34), the WCB refused to overturn the Initial Determination. The refusal was based on the reasoning that Mr. Tanguay’s sworn statement did not meet the requirement of the New Evidence Policy, as the information was available when the Initial Determination was made, and “[b]oth Mr. Tanguay and Wawanesa were in a position to provide [it] to the WCB within the 1-year limitation period” that applied to the Initial Determination. [ 13 ] On July 21, 2015, Mr.

Tanguay submitted a reconsideration request to the DRDRB in relation to its February 5, 2015 decision. The grounds for the request included: (

i) Mr. Tanguay was never sent the Initial Determination, and this lack of information was a justifiable reason for his failure to appeal the Initial Determination within the one-year limitation period; (ii) the DRDRB’s February 5, 2015 decision was in breach of procedural fairness, as it referred to records that were never provided to Mr. Tanguay; (iii) Mr. Tanguay’s alleged statement that he was “not working” at the time of the Accident was distinguishable from the concept of “not in the course and scope of employment”; and (iv) it was in the interest of justice and fair adjudication that Mr.

Tanguay be allowed the opportunity to provide evidence and make submissions. [ 14 ] On July 29, 2015, Mr. Tanguay received documentation from the Manager of Third Party Recoveries, Legal Services Department, at the WCB (via a letter dated July 28, 2015). [ 15 ] On August 4, 2015, Mr. Tanguay submitted the documentation received on July 29, 2015 to the DRDRB, and made supplemental written submissions. [ 16 ] On August 12, 2015, the Applicants filed submissions before the DRDRB in response to Mr. Tanguay’s August 4, 2015 supplemental brief. Mr.

Tanguay filed further submissions on August 20, 2015. [ 17 ] On September 15, 2015, the DRDRB issued the Decision, which the Applicants seek to review in the within proceedings. Legislation [ 18 ] The WCA provides, in part: 17

(3) The Board has authority to reconsider any matter that it has dealt with and to rescind or amend any decision or order previously made by it.

... 23

(1) If an accident happens to a worker entitling the worker or the worker’s dependants to compensation under this Act, neither the worker, the worker’s legal personal representatives, the worker’s dependants nor the worker’s employer has any cause of action in respect of or arising out of the personal injury suffered by or the death of the worker as a result of the accident (

a) against any employer, or (

b) against any worker of an employer, in an industry to which this Act applies when the conduct of that employer or worker that caused or contributed to the injury arose out of and in the course of employment in an industry to which this Act applies. ... 44 On the making of a determination as to the entitlement of a worker or the worker’s dependant to compensation under this Act, the employer and the worker or, in the case of the worker’s death, the worker’s dependant, shall, as soon as practicable, be advised in writing of the particulars of the determination, and shall, on request, be provided with a

summary of the reasons, including medical reasons, for the determination. ... 46

(1) Where a person has a direct interest in a claim for compensation in respect of which a claims adjudicator has made a decision, that person may, within one year from the day the decision was issued by the claims adjudicator, seek a review of the decision by the review body appointed under

section 45. ...

(7) The one-year period referred to in subsection (1) may be extended if the chair of the review body or the chair’s delegate considers there is a justifiable reason for extending the time period.

(8) Where the one-year period is extended under subsection (7), the person extending the time period may do so with or without conditions.

(9) There is no appeal from a decision made under subsection (7). The DRDRB Decision [ 19 ] The Decision, issued on September 15, 2015, reads in part: In this case, Mr. David Tanguay, had asked WCB for an extension of his expired review period of the April 4, 2012 decision.... The Dispute Resolution and Decision Review Body (DRDRB) Chair’s Delegate denied the extension request and Mr. Tanguay asked the DRDRB to reconsider. The DRDRB then gave parties the opportunity to make written submissions on the issue of the reconsideration. Policy 01-08

Part I – New Evidence Policy provides the WCB the authority to consider any new evidence and, if appropriate, amend or rescind its previous decision. Evidence is new information that may affect the outcome of a worker’s compensation decision. It must meet two basic criteria: the evidence is material (relevant) to the issue in question the evidence is substantive – it gives new information that was not previously available to the decision-maker and could affect the outcome of the decision New evidence [includes] administrative review findings that identify previous errors or omissions, appeal findings and various other relevant facts I considered

section 44 of the WCA requires WCB to issue “written” notice of a determination as to the entitlement of a worker to compensation under the Act – upon a worker and the worker’s employer. In this case, the WCB issued written notice to Wawanesa, Mr. Tanguay’s liability insurer, but apparently did not send a copy to Mr. Tanguay or write him an individual letter. I previously felt that service of the determination letter upon Wawanesa constituted service upon Mr. Tanguay.

However, applying the strict wording of s. 44 , service upon the insurer does not constitute written notice upon the worker and therefore my decision was in error. I find Legal Services’ April 4, 2012 determination letter to Wawanesa was not sent to Mr. Tanguay, and we have no record that a copy was sent to him. Added to this is Mr. Tanguay’s assertion that he never received a copy. Even though the same lawyer is representing Mr. Tanguay and Wawanesa, I acknowledge Mr. Tanguay is a separate legal person from his liability insurer. While the WCB gave Wawanesa notice of a status determination regarding Mr.

Tanguay, there would be no expectation that Wawanesa would forward that letter to Mr. Tanguay, and they may take no steps in challenging the entitlement decision. As such, I find there was a lack of proper notice leaving Mr. Tanguay

unaware of the decision. The Legal Assistant can now review the matter as to whether Mr. Tanguay was in the course of his employment at the time of the February 21, 2012 accident. Section 46(9) of the Workers’ Compensation Act states: “There is no appeal from a decision made under subsection (7).” Issues [ 20 ] The issues for determination in this application are: i. Did the DRDRB err in considering Mr. Tanguay’s sworn statement as “new evidence”? ii. Did the DRDRB err when it concluded that Mr.

Tanguay had not been duly provided with a copy of the Initial Determination, and therefore entitled to an extension of the statutorily prescribed one-year limitation period for review? Standard of Review [ 21 ] The Applicants submit that the standard of review that this Court should apply to the two issues identified above is correctness. They argue that the New Evidence Policy of the WCB must be interpreted in conjunction with common law rules of evidence, and as such constitutes a question of law that is of central importance to the whole legal system.

They argue that the issue of service is of a similar character, as it involves a determination of the legal relationship between the insurer and the insured. [ 22 ] Mr. Tanguay argues that the

interpretation of the New Evidence Policy and the application of the notice requirements under the WCA are all matters within the expertise of the DRDRB, which are entitled to deferential assessment by this Court. He says that the two issues involve an application of the law to facts; and even if they are characterized as questions of law, they are legal issues arising out of the

interpretation of the DRDRB’s home statute – the WCA . Consequently, Mr. Tanguay submits the appropriate standard of review is reasonableness. [ 23 ] The WCB also submits that the appropriate standard of review in the circumstances of this matter is reasonableness, referencing existing jurisprudence that includes this Court’s pre- Dunsmuir decision in Chubb Insurance Co of Canada v Alberta (Worker’s Compensation Board) , [2003] AJ No 1749 at para 16 . [ 24 ] In my view, the consideration of the New Evidence Policy of the WCB by the DRDRB engaged policy

interpretation under the WCA statutory scheme, while the determination of the question of whether Mr. Tanguay was entitled to an extension of the one-year limitation period, prescribed under the WCA , s 46(7), involved the exercise of a discretionary authority conferred on the administrative decision-maker by the Legislature through the delegate’s home statute. [ 25 ] The Supreme Court, in Dunsmuir v New Brunswick , 2008 SCC 9 at para 53 , [2008] 1 SCR 190, confirmed that “[w]here the question is one of fact, discretion or policy , deference will usually apply automatically” [ emphasis added ].

And “that the same [deferential] standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated”: Ibid . [ 26 ] To the extent that the WCB policy deals with “new evidence” as a question of law that is of central importance, it is not a legal question that is outside the specialized area of the DRDRB as an administrative decision-maker. The legal

interpretation of the WCB’s New Evidence Policy by the DRDRB does not rise to a level that is incompatible with the reasonableness standard: Dunsmuir at paras 55, 70 . [ 27 ] Therefore, I conclude that the reasonableness standard of review applies to both issues for review in this application. [ 28 ] In applying the reasonableness standard to an impugned administrative decision, the reviewing court “inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: Dunsmuir at para 47 .

That inquiry “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process [as well as] with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: Ibid . Issue 1: Did the DRDRB err in considering Mr. Tanguay’s sworn statement as “new evidence”? Parties’ Position [ 29 ] The Applicants submit that, while it is clear from the written reasons that the Board relied on Mr.

Tanguay’s sworn statement, the Decision does not explain how the WCB policy on “new evidence” was interpreted or applied in the matter. They maintain that the sworn statement ought not to have been considered by the DRDRB, as it did not qualify as “new information that was not previously available to the decision-maker and could affect the outcome of the decision.” The Applicants contend that the information in Mr.

Tanguay’s sworn statement was previously available to the WCB, except that he swore that he had no recollection of speaking to the WCB shortly after the Accident. [ 30 ] Further, the Applicants argue that the second error the DRDRB made was to accept, as new evidence, the same information in the sworn statement that it earlier rejected in its February 5, 2015 decision. The Applicants take the position that, notwithstanding the

DRDRB’s discretion to reconsider its previous decisions, accepting new evidence it had already rejected constitutes an error. [ 31 ] Mr. Tanguay submits that the question of whether his sworn statement of March 26, 2015 constitutes “new evidence” is secondary to the primary issue regarding the lack of service of the WCB’s Initial Determination on him.

Second, he argues that, unlike the DRDRB’s decision to grant or refuse a limitation period extension under the WCA that cannot be appealed, a decision of the DRDRB on whether something is “new evidence” is appealable to the Workers’ Compensation Appeals Commission under the statute. As such, he maintains, the Applicants must exhaust their administrative remedies through an appeal to the Appeals Commission, prior to seeking a judicial review of the DRDRB’s decision on “new evidence.” [ 32 ] In any event, Mr.

Tanguay says, his sworn statement of March 26, 2015 constitutes “new evidence” because of its relevance, as well as the fact that it corrects false information provided to the WCB by a third party – Wawanesa. In effect, the new evidence and information, according to Mr. Tanguay, demonstrates that the WCB’s determination that he was not in the course and scope of his employment was based on incorrect information. Analysis [ 33 ] I agree that the issue of “new evidence” is one that the Applicants may properly appeal to the WCA ’s Appeals Commission, rather than one to be pursued in a judicial review application.

Nevertheless, given that the DRDRB’s consideration of the Respondent’s sworn statement as “new evidence” is interwoven with its exercise of its discretion to grant an extension of limitation period in this matter, I conclude that the interest of judicial economy that discourages unnecessary bifurcation of issues would justify this Court’s consideration, on judicial review, of the Applicants’ complaint regarding how the DRDRB handled the alleged “new evidence” in the context of the Decision. [ 34 ] Generally speaking, there is no dispute that the DRDRB, in its September 15, 2015 written reasons, acknowledged the provisions of the New Evidence Policy.

Also, the DRDRB recognized that the definition of “new evidence” under this Policy includes, “administrative review findings that identify previous errors or omissions, appeal findings and various other relevant facts.” In that context, the DRDRB observed that, in its February 5, 2015 decision, it “previously felt that service of the determination letter upon Wawanesa constituted service upon Mr. Tanguay.” Subsequently, the DRDRB declared that the earlier decision that interpreted

section 44 of the WCA in that manner “was in error,” because “service upon the insurer does not constitute written notice upon the worker.” [ 35 ] Based on this explanation, I find that the Decision transparently demonstrates in an intelligible manner that the decision- maker identified its previous error after conducting a statutorily permitted administrative review of its initial finding that service was properly effected. Thus, the justification for issuing the subsequent administrative decision is that the DRDRB sought to rectify its previous error.

The rectification of that previous error, in the context of the WCB Policy’s broader definition of the term, constitutes “new evidence.” [ 36 ] Without the uncontradicted, sworn statement of Mr. Tanguay, which brought some information, including the lack of service on him, to light, it is unlikely that the DRDRB would be able to identify the previous error in its earlier decision. [ 37 ] Further, in terms of the implications of reconsidering (in the Decision) the sworn statement that it earlier rejected (in the February 5, 2015 decision), I observe that the WCA , ss 17(3-4) provide that:

(3) The Board has authority to reconsider any matter that it has dealt with and to rescind or amend any decision or order previously made by it.

(4) Each matter shall be decided on the merits and justice of the case and the Board is not bound to follow any previous decision or ruling of the Board as a precedent in reaching its decisions or making its rulings. [ 38 ] This legislative scheme – i.e. the WCA , ss 17(3-4) along with the WCB Policy 01-08

Part I – confers broad authority on the DRDRB, and provides the requisite justification for its decision to accept the “new evidence” that it had earlier rejected. [ 39 ] Similarly, the New Evidence Policy clearly indicates that: “[t]he principles of fairness and natural justice generally require that WCB considers all relevant evidence, new or otherwise , when reviewing a decision” [ emphasis added ]. This is a liberally framed provision that puts fairness and natural justice ahead of precedents. [ 40 ] I find that the DRDRB’s consideration of Mr.

Tanguay’s sworn statement as “new evidence” in its administrative review, and its use of the sworn statement to identify the DRDRB’s previous error – a type of “new evidence” under the WCB Policy – meet the requirements of the reasonableness review standard. [ 41 ] Consequently, I conclude that the DRDRB’s decision on the issue of “new evidence” falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and law. Issue 2: Did the DRDRB err when it concluded that Mr.

Tanguay had not been duly provided with a copy of the Initial Determination, and therefore entitled to an extension of the statutorily prescribed one-year limitation period for review? Parties’ Positions

[42] The Applicants submit that both Wawanesa and Mr. Tanguay’s interests converge in this matter, such that service of theInitial Determination on Wawanesa on April 4, 2012, constituted service on Mr. Tanguay. They contend that the DRDRB’s conclusionthat Wawanesa and Mr.

Tanguay are separate legal entities does not mean they must be served separately. [43] The Applicants argue that there are case-law authorities to support its argument that delivery of documents to the liabilityinsurer constitutes delivery to the insured, such that a liability insurer may negotiate as well as waive the rights of their insured: Palacz vKapki, 1999 ABCA 40, 228 AR 373; Cyre-Wills v Couture (1992), 1992 ABCA 1, 1 Alta LR (3d) 209. [44] The Applicants distinguish jurisprudence that avers that service of commencement documents, like a statement of claim,cannot be effected by service on the defendant’s liability insurer from the present situation, which requires notice of an administrativedecision to the worker.

They argue that the language of

section 44 of the WCA does not mandate the delivery of the notice of decision tothe worker personally; rather, it only prescribes that they must “be advised in writing.” This legislative language, the Applicants contend,does not mandate a method of delivery; it only requires the provision of sufficient information to employers and workers in order toevaluate compensation decisions. [45] Mr.

Tanguay submits that, in alignment with the language of the WCA, s 46(7), which requires the administrative decision-maker to consider whether “there is a justifiable reason for extending the time period,” the DRDRB in this instance concluded that itwould be unfair to hold Mr. Tanguay to a one-year appeal period when he did not receive a copy of the Initial Determination. In effect, ifthe Initial Determination had been served on him, Mr.

Tanguay believes he would have seen the DRDRB’s error, and immediately filedan appeal because the Initial Determination relied on incorrect information that was at odds with his recollection of events vis-à-vis therecords from his insurer. Mr. Tanguay maintains that “[i]f there is a clear obligation to provide notice then the limitation runs from thedate notice is given”: Athabasca Chipewyan First Nation v Alberta (Minister of Energy), 2011 ABCA 29 at para 27, 505 AR 72[Athabasca Chipewyan].

He submits that the Decision was reasonable in finding that the failure to provide him with notice of the InitialDetermination was a justifiable reason to extend the limitation period. [46] Mr. Tanguay submits that the provisions of

section 44 of the WCA expressly require that he “be advised in writing” of theInitial Determination. That language, he submits, cannot require anything short of the DRDRB sending him a copy of the Decision.There is no basis to depart from the requirements of the legislation, as the Legislature would have specified service on the worker’sinsurer if it wanted to constitute insurers agents for the purposes of service. [47] Mr.

Tanguay submits that service of a document on an insurer is not the same as service on an insured because an insurer andan insured have different, independent interests, and cannot be regarded as “one and the same.” He asserts that, in Vaters v Calgary CabCompany, 2001 ABCA 154 at para 4, 286 AR 107, the Alberta Court of Appeal confirmed that “notwithstanding the provisions of[section 315(1)(

c) of the old Insurance Act, RSA 1980, c I-5], and the authority of an insurer to represent a defendant insured’s interestsgenerally, a plaintiff must still comply with the Rules of Court and personally serve a defendant with its statement of claim.” The sameprinciple was reiterated by Master Quinn in Bueckert v Jonzon, (1986) (AB KB), 77 AR 247 at para 9. This legalprinciple, Mr. Tanguay submits, applies to this matter. Analysis [48] The relevant portion of the Decision demonstrates that the administrative decision-maker “considered

section 44 of the WCA[which] requires WCB to issue “written” notice of a determination as to the entitlement of a worker to compensation under the Act –upon a worker and the worker’s employer.” Based on the evidence before the DRDRB, it found that “the WCB issued written notice toWawanesa, Mr. Tanguay’s liability insurer, but apparently did not send a copy to Mr.

Tanguay or write him an individual letter.” TheDRDRB also articulated in its written reasons that, “applying the strict wording of s. 44 [of the WCA], service upon the insurer does notconstitute written notice upon the worker.” The DRDRB then concluded that its earlier decision on the issue of notice was an error on itspart. [49] Based on s 17(3) of the WCA, that authorizes the DRDRB “to reconsider any matter that it has dealt with and to rescind oramend any decision or order previously made by it,” the DRDRB proceeded to amend the earlier decision on the issue of notice.

In theDecision, the DRDRB then found that “there was a lack of proper notice leaving [Mr. Tanguay] unaware of the decision.” [50] In my view, the Decision, that interpreted “service” in a “strict” manner, aligns with the jurisprudence established in this Courtand our Court of Appeal: Vaters at para 4; Bueckert v Jonzon at para 9. The determination by the DRDRB to correct its decision ofFebruary 5, 2015, meets the justification and intelligibility demands of the reasonableness review standard. [51] In this context, I observe that

section 44 of the WCA is titled “Notice of decision.” This heading supports an

interpretation thatthe use of the phrase “advised in writing” in the ensuing legislative provision is equivalent to just that – i.e. “notice of decision.” TheBarron’s Canadian Law Dictionary defines “notice” as: “[i]nformation or knowledge regarding a fact actually brought to a person’sattention” (QL). [52] Effectively, the ordinary meaning and purposive

interpretation of

section 44 suggest that it was the worker and employer thathad to be directly “informed in writing” of the Initial Determination and not the insurer. This is the “first impression” meaning of thephrase “advised in writing,” as well as “the understanding that spontaneously emerges when [those] words are read in their immediatecontext ”: Marche v Halifax Insurance Co, 2005 SCC 6 at para 59, [2005] 1 SCR 47.

In the circumstances, I find that the directdelivery of the notice of the Initial Determination by the DRDRB to the worker is “the natural meaning which appears when theprovision [of the WCA, s 44] is simply read through”: Ibid at para 60. [53] The record before me indicates that the DRDRB implemented service of WCB’s Initial Determination of entitlements tocompensation directly on the Applicants in this matter, and not on their insurers: WCB Record of Proceedings, Vol 1, Tabs 11-15.However, the DRDRB opted for a different delivery method in Mr.

Tanguay’s case and, instead of direct service on him, opted to servehis insurer.

[ 54 ] Accordingly, I conclude that the DRDRB was reasonable when it determined that the phrase “advise in writing” under

section 44 of the WCA means the worker must be notified of the WCB decision on entitlement to compensation through an actual and direct delivery of the decision to the worker. That

interpretation realizes the intention of the Legislature. Prejudice [ 55 ] The length of time it took from the Initial Determination through to December 4, 2014 (when counsel for Mr. Tanguay wrote to the WCB asking for a determination of his status at the time of the Accident and whether the statutory immunity provision under the WCA , s 23 applied to him), appears to raise some concerns of prejudice against the Applicants. [ 56 ] However, since the WCA imposed a positive obligation on the DRDRB to provide notice of decision to Mr.

Tanguay in writing, and he was not so advised or notified, the issue of potential prejudice becomes irrelevant because the limitation period can only run from the date notice is given: Athabasca Chipewyan at para 27 . The failure of the WCB to directly advise in writing, serve or notify Mr.

Tanguay of the Initial Determination, as statutorily required by the WCA , defeats the suggestion or argument that the Applicants have suffered prejudice. [ 57 ] Although the DRDRB did not expressly discuss the issue of prejudice in the written reasons, I am satisfied that the administrative decision-maker implicitly considered it prior to determining that the one-year limitation period should be extended in favour of Mr. Tanguay.

The Supreme Court of Canada has indicated that “[a] decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion”: Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para 16 , [2011] 3 SCR 708.

And that an administrative decision- maker’s written “[r]easons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis”: Ibid [ emphasis added ]. [ 58 ] In the result, I conclude that the Decision, granting an extension of the limitation period to Mr. Tanguay, is transparent, intelligible and justifiable.

The Decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, and is accordingly reasonable. Disposition [ 59 ] The application for judicial review is dismissed. [ 60 ] If the parties are not agreed on costs, they are to contact my assistant within 30 days of the release of these Reasons to arrange a time to address that issue. Heard on the 15 th day of June, 2017. Dated at the City of Edmonton, Alberta this 25 th day of August, 2017 . D.L. Shelley J.C.Q.B.A.

Appearances: Kenneth G Heintz Venture Law Group LLP for the Applicants Jason Bodnar Workers’ Compensation Board for the Respondent, Workers’ Compensation Board

Evan C Duffy Parlee McLaws LLP for the Respondent, David Tanguay