Zarooben v Workers’ Compensation Board, 2021 ABQB 232

Court of Queen’s Bench of Alberta Citation: Zarooben v Workers’ Compensation Board, 2021 ABQB 232 Date: 20210326 Docket: 1903 25604 Registry: Edmonton Between: David Zarooben Applicant - and - The Workers’ Compensation Board and the Appeals Commission for the Alberta Workers’ Compensation Board Respondents Corrected judgment: A corrigendum was issued on March 31, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Madam Justice A.

Loparco _______________________________________________________ Table of Contents I. INTRODUCTION .. 2 II. PROCEDURAL HISTORY . 2 III. ISSUES AND BRIEF CONCLUSIONS . 3

IV. PRELIMINARY PROCEDURAL ISSUE . 3 a. Pleading irregularities . 6 b. Analysis re pleading irregularities . 6 V. CHARACTERIZATION OF ISSUES . 9 a. Grounds for Originating Application . 10 b. Analysis re characterization of issues . 11 VI. STANDARD OF REVIEW ... 12 a. Issues re-framed and applicable standards of review .. 15 VII. ANALYSIS OF APPEALS COMMISSION DECISION .. 15 a. Relevant Legislation . 15 b. Statutory Appeal Questions . 18 c. Judicial Review Questions . 20 VIII. CONCLUSION AND REMEDY . 31 I. INTRODUCTION [ 1 ] David Zarooben [or Applicant] was a truck driver with Balkanian Friends Ltd.

He suffered an injury on January 15, 2016 when he slipped on the icy running board of his work truck and fell approximately eight feet onto the ground below, striking his head on the pavement. [ 2 ] Mr. Zarooben claims that since the accident, he continues to experience headaches, dizziness, anxiety, loss of balance, depression and is now completely disabled from performing his pre-accident work. [ 3 ] He now seeks an appeal and/or judicial review of Appeals Commission decision, dated July 24, 2019 [ Decision], of the Workers Compensation Board of Alberta [WCB].

The Applicant asks to have the Decision set aside and an order directing the WCB to pay him retroactive compensation benefits from July 27, 2018. II. PROCEDURAL HISTORY [ 4 ] In a letter dated February 1, 2016, the WCB accepted Mr.

Zarooben’s claim based on the diagnosis of a concussion. [ 5 ] In a letter dated December 20, 2017, a WCB Case Manager accepted additional responsibility for the Applicant’s mild traumatic brain injury [MTBI], and authorized wage replacement benefits in the form of temporary total disability benefits [TTD] from February 18, 2016 onwards. [ 6 ] On July 27, 2018, a WCB Case Manager issued a decision finding that the Applicant’s continuous symptoms were not related to the work accident or the injuries accepted on his claim. [ 7 ] The Applicant sought a review of this decision by the WCB’s internal review body, the Dispute Resolution and Decision Review Body [DRDRB].

The DRDRB issued a decision, dated October 31, 2018, upholding the Case Manager’s conclusion that the Applicant was not entitled to TTD benefits beyond July 27, 2018. [ 8 ] The Applicant filed a Notice of Appeal dated November 14, 2018, challenging the DRDRB’s decision to the Appeals Commission, the external appeal body for WCB decisions. [ 9 ] The Appeals Commission Decision agreed with the DRDRB’s conclusion. [ 10 ] On August 28, 2019, Mr. Zarooben, filed an Originating Application for Judicial Review/Statutory Appeal of the Decision. [ 11 ] Mr.

Zarooben alleges that the Decision was unreasonable, procedurally unfair and that it did not comply with the rules of natural justice. III. ISSUES AND BRIEF CONCLUSIONS

[ 12 ] There is a preliminary procedural issue that has to first be resolved, namely, whether this hearing could proceed as both a statutory appeal and a judicial review. Based on my reasons below, I conclude that both procedures are triggered. The result is that the issues had to be re-framed and are answered as follows. [ 13 ] The issues that involve pure questions of law and addressed pursuant to the statutory appeal provisions under s 13.4 of the Workers’ Compensation Act , RSA 2000, c W-15 [ Act or WCA ] are as follows: (

a) Did the Appeals Commission Decision breach the principles of natural justice? (

b) Did the Appeals Commission hearing or decision breach the principles of procedural fairness? [ 14 ] I conclude that there was no breach of the principles of natural justice or procedural fairness. [ 15 ] The remaining questions that proceed pursuant to judicial review are: (

a) Did the Appeals Commission err by ignoring evidence and by failing to assign appropriate weight to all of the relevant evidence? (

b) Did the Appeals Commission err in its

interpretation and application of WCB policy concerning TTD benefits? [ 16 ] I conclude that the Decision to terminate Mr. Zarooben’s TTD benefits was unreasonable as it was based on insufficient evidence previously rejected by the Appeals Commission, had unresolved contradictions on the record from the same doctor, and placed undue reliance on findings of invalidity in psychological assessments. Accordingly, none of the evidence relied on could properly support a conclusion that there was a lack of causal connection between the ongoing symptoms and the workplace accident. IV.

PRELIMINARY PROCEDURAL ISSUE [ 17 ] There is a question as to whether this proceeding was properly filed as either a judicial review or a statutory appeal. Mr. Zarooben filed an Originating Application on December 16, 2019 and stated that it was a “statutory/judicial appeal” pursuant to the provisions of the Act . [ 18 ] Characterizing the type of the proceedings is important for determining the standard pursuant to which an administrative decision is to be reviewed. [ 19 ]

Section 13.4 of the Act sets out a statutory process for an appeal of a decision of the Appeals Commission to the Court of Queen’s Bench on a question of law or jurisdiction. There is no leave requirement. [ 20 ] The relevant provisions of s 13.4 of the Act state as follows:

(1) The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction.

(2) An appeal must be commenced by application.

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

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

b) the nature of the relief claimed.

(4) An application must be filed with the Court and served on the Appeals Commission and the other parties to the appeal, all within 6 months after the date of the decision that is being appealed. [….]

(6) Where the appellant is a person other than the Board, the appellant must also serve a copy of the application on the Board. [ 21 ] The relevant provisions of the Alberta Rules of Court, Alta Reg 124/2010 [ Rules ] include the following: How to start an action 3.2(1) An action may be started only by filing in the appropriate judicial centre determined under rule 3.3 (

a) a statement of claim by a plaintiff against a defendant, (

b) an originating application by an originating applicant against a respondent, or (

c) a notice of appeal, reference or other procedure or method specifically authorized or permitted by an enactment. [….]

(4) If an enactment authorizes, requires or permits an appeal or reference to be made to the Court and provides a procedure, the appeal or reference must be made in the form prescribed by the enactment or, if no form is prescribed, then in a form consistent with the procedure or in Form 5.

(5) If an enactment authorizes, requires or permits an appeal or reference to be made to the Court and does not provide a procedure, the appeal or reference must be made by originating application in Form 5. [….] 3.8(1) An originating application must (

a) be in Form 7, (

b) state the claim and the basis for it (

c) state the remedy sought, and (

d) identify the affidavit or other evidence to be used in support of the originating application.

(2) If an affidavit is filed to support an originating application, the affidavit must be confined to (

a) a statement of facts within the personal knowledge of the person swearing the affidavit, and (

b) any other evidence that the person swearing the affidavit could give at trial. Originating application for judicial review 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16 [Originating application for judicial review: habeas corpus], an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 [Variation of time periods] 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.

(4) The Court may require an originating application for judicial review to be served on any person or body not otherwise required to be served.

(5) An affidavit or other evidence to be used to support the originating application for judicial review, other than an originating application for an order in the nature of habeas corpus, must be filed and served on every other party one month or more before the date scheduled for hearing the application. [….] 3.22 When making a decision about an originating application for judicial review, the Court may consider the following evidence only: (

a) the certified copy of the record of proceedings of the person or body that is the subject of the application, if any; (

b) if questioning was permitted under rule 3.21, a transcript of that questioning; (

c) anything permitted by any other rule or by an enactment; (

d) any other evidence permitted by the Court. a. Pleading irregularities [ 22 ] Regardless of which process he intended to pursue, there are some procedural irregularities in Mr. Zarooben’s pleading. I must determine whether they may be cured. [ 23 ] Mr. Zarooben filed his appeal (permitted only on law or jurisdictional questions) and his judicial review as an Originating Application under Rule 3.8 using Form 7; and listed the Appeals Commission Decision and Record of Proceedings as the evidence in support. [ 24 ] Mr. Zarooben’s Originating Application states as the basis for the claim: • The Appeals Commission erred in both the

interpretation and application of section 24(1), section 56(4), relevant provisions and policies. It also states that the

interpretation was neither correct nor reasonable;

• The Decision is contrary to the principles of natural justice; and, • The hearing and Decision [were] procedurally unfair and did not comply with the rules of natural justice as the Appeals Commission did not give proper weight to the evidence provided by the Applicant and completely ignored it, against the principles of Administrative Law, equity and natural justice. [ 25 ] If this was intended to be a statutory appeal pursuant to the Act , it should have been filed as an Originating Application using Form 5 (Rule 3.2); if it was intended to be a judicial review of the Appeals Commission’s Decision, it should be filed as an Originating Application using Form 7 (Rule 3.8) and properly served as indicated above. [ 26 ] In this case, the pleading does not technically meet the requirements of either process: It was filed using Form 7, although it states it is an appeal pursuant to the Act ; and, if it was intended to be a judicial review, it was not properly served on the Minister of Justice and Solicitor General. [ 27 ] The question is whether the Court can accept the pleading filed by Mr.

Zarooben as both a judicial review as well as a statutory appeal. His written brief describes the issue in the nature of a Statutory Appeal/Judicial Review Application. His written and oral submissions addressed both the correctness and the reasonableness of the Decision. b.

Analysis re pleading irregularities [ 28 ] Prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 [ Vavilov ], it was common for applicants with claims under the Act to seek both judicial review and appellate relief within the same action. [1] The Alberta Court of Appeal in Alberta (Workers’ Compensation Board) v Buckley , 2007 ABCA 7 at para 13 [ Buckley ], recognized that: The Act gives a statutory right of appeal to the Court of Queen’s Bench on a question of law or jurisdiction.

Issues of mixed fact and law, or pure fact, are subject to judicial review. In borderline cases there may be some uncertainty as to the appropriate procedure.

To avoid this problem it is increasingly becoming the practice of cautious applicants to launch an application for judicial review, and an appeal, under the same Originating Notice... [ 29 ] In Chauvet v Alberta (Workers’ Compensation Board, Appeals Commission) , 2007 ABCA 155 at para 26 [ Chauvet ] , the Court of Appeal commented: “I first note that the failure to seek both remedies is uncommon and invariably inadvertent.” [ 30 ] The Alberta Court of Appeal in Patrus v Alberta (Workers’ Compensation Board Appeals Commission) , 2014 ABCA 117 at para 26 [ Patrus ], considered the difference between a statutory appeal application and a judicial review application, explaining: Since the introduction of the statutory right of appeal in

section 13.4 of the WCA in 2002, courts have generally insisted on properly characterizing an application as a judicial appeal or judicial review: see Alberta (Workers’ Compensation Board) v Appeals Commission , 2005 ABCA 276 , 371 AR 318 at para 18 ; and Sarcee Gravel Products Inc v Alberta (Workers’ Compensation Board) , 2006 ABQB 56 , 394 AR 74 at paras 9-12 . There is good reason for this.

For example, the form of originating application and service requirements are somewhat different for statutory appeals and judicial review applications: an application for judicial review requires service on the Attorney General while there is no similar requirement for a statutory appeal under the WCA . In considering a statutory appeal, the reviewing court must also be wary of issues of fact or mixed fact and law that have been dressed up as issues of law: [ Shuchuk v Alberta (Workers’ Compensation Board Appeals Commission) , 2007 ABCA 213 ] at para 21.

Nevertheless, this court’s statement at paragraph 14 of Alberta (Workers’ Compensation Board) v Buckley , 2007 ABCA 7 , 401 AR 231 is determinative in these circumstances: …where the right of appeal and the application for judicial review would both be to the same tribunal (the Court of Queen’s Bench), [...] there is no reason why judicial review on a question of law or jurisdiction should not be available notwithstanding the right of appeal. The standard of review will be the same whether the matter is brought forward by judicial review, or by way of appeal: Dr. Q. v.

College of Physicians and Surgeons of British Columbia , [2003] 1 S.C.R. 226 , 2003 SCC 19 , at para. 21Therefore, in these circumstances it is not always necessary for the court to recast the proceedings under Rule 753.16 [now Rule 3.2(6)], although that rule confirms that the form of the application is no impediment to the relief applied for.

Thus the form of the application before the Court of Queen’s Bench is not of any significance in this matter. [ 31 ] The Alberta Court of Appeal similarly stated in Chauvet at para 21 , “it should not matter which review process is invoked,” whether judicial review or statutory appeal, “the standard of review should be the same.” [ 32 ] The aforementioned practice was commonplace before the Supreme Court of Canada released its decision in Vavilov . I note that Mr.

Zarooben commenced his Originating Application on December 16, 2019, three days prior to the publication of the Vavilov decision, and would not have known that the procedure would change. [ 33 ] In Vavilov at para 36 , the Supreme Court made it clear that the standard of review for statutory appeals is distinct and requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute: Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis.

This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court. [ 34 ] However, proceeding with a judicial review and an appeal at the same time remains possible. [ 35 ] The Supreme Court clarified at paras 45 and 52:

… The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of a court, doesnot preclude a court from considering other aspects of a decision in a judicial review proceeding.

However, if the same standards ofreview applied regardless of whether a question was covered by the appeal provision, and regardless of whether an individual subject toan administrative decision was granted leave to appeal or applied for judicial review, the appeal provision would be completelyredundant — contrary to the well-established principle that the legislature does not speak in vain: Attorney General of Quebec v.Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 S.C.R. 831, at p. 838. the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review ofdecisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.

Butany such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicialreview cannot then be rebutted by reference to the statutory appeal mechanism. [36] The statutory appeal procedure outlined in s 13.4 of the Act is clearly limited to questions of law or jurisdiction. [37] Moreover, the Supreme Court directed in Vavilov that a Court is to treat an appeal as distinct from an application for judicialreview. Nevertheless, the right of appeal under the Act does not preclude Mr.

Zarooben from bringing an originating application forjudicial review in respect of those aspects of the Decision that do not fall within the scope of s 13.4.

Therefore, in the circumstances, I amsatisfied that this Court may hear an application for both a statutory appeal and a judicial review in this proceeding. [38] Each party made reference to a judicial review in their written Briefs and made oral submissions as if this was also a judicialreview, although the respondents disagree that any of the issues raised can be classified as a statutory appeal. [39] Rule 3.2(6) of the Rules is a curative provision that states that “if an action that is started in one form should have been startedor should continue in another, the Court may make any procedural order to correct and continue the proceeding and deal with any relatedmatter.” [40] The one procedural defect with Mr.

Zarooben’s judicial review application is that the Minister of Justice and Solicitor Generalor the Attorney General were not served. Neither of the respondents have raised this as an impediment to proceeding with this as ajudicial review. [41] Accordingly, I am making an order that this proceeding shall be treated as though Mr. Zarooben filed an OriginatingApplication seeking both a statutory appeal and a judicial review.

I am satisfied that this order correcting and continuing the proceedingdoes not prejudice the WCB or the Appeals Commission. [42] However, as Rule 3.2(6) is discretionary, other similar claims may not be cured. [43] Future claims before the Court of Queen’s Bench that raise both a statutory appeal and a judicial review must be properlydistinguished in the pleadings; as well, they must be filed and served on “the Minister of Justice and Solicitor General or the AttorneyGeneral for Canada, or both, as the circumstances require.” This approach recognizes and accounts for the judicial review component ofthe applicant’s action, pursuant to Rule 3.15(3), where the Court may conclude that some of the claims should proceed by way ofjudicial review.

V. CHARACTERIZATION OF ISSUES [44] Individual issues in an Originating Application must be assessed in accordance with the nature of the question. They must fallinto the categories of either a statutory appeal on a question of law or jurisdiction or, a judicial review with the appropriate standard ofreview applied. [45] The Respondents submitted that Mr. Zarooben has not raised any questions of law or jurisdiction required for this matter toproceed as a statutory appeal. I disagree.

There are a number of questions of law raised in his pleading. [46] Before I turn to the characterization and applicable standard of review for each issue, I wish to dispose of certain allegationsagainst the WCB, including malpractice, breach of duty, acting in bad faith, abuse of public office, or malfeasance of public office. [47] Judicial review and statutory appeal are not the proper form of pleadings in which to bring such tort actions.

Essentially, theseprocedures in administrative law are designed to probe into and “safeguard the legality, rationality and fairness of the administrativeprocess”: Vavilov at para 13 (emphasis added). [48] I conclude that these allegations – i.e., malpractice, breach of duty, acting in bad faith, abuse of public office, or malfeasanceof public office – are inappropriate claims for a statutory appeal (pursuant to s 13.4 of the WCA) or judicial review procedure (pursuant toRule 3.15 of the Alberta Rules of Court) that target the administrative decision of the Appeals Commission: see also Cordeiro v Alberta(Appeals Commission for Alberta Workers’ Compensation), 2017 ABQB 22 at para 43. a.

Grounds for Originating Application [49] The Originating Application states the grounds for appeal pursuant to s 13.4 of the Act as follows: • The Appeals Commission erred in both the

interpretation and application of section 24(1), section 56(4), relevant provisions andpolicies. It also states that the

interpretation was neither correct nor reasonable. • The Decision is contrary to the principles of natural justice

• The hearing and decision [were] procedurally unfair and did not comply with the rules of natural justice as the AppealsCommission did not give proper weight to the evidence provided by the Applicant and completely ignored it, against the principles ofAdministrative Law, equity and natural justice. [50] In Alberta (Workers’ Compensation Board) v Alberta (Workers’ Compensation Board Appeals Commission), 2005 ABCA276 [Alberta], the Alberta Court of Appeal suggested each question raised in an appeal or a judicial review must be characterizedseparately.

The Court of Appeal further instructed at para 19: “The reviewing court must identify the true target of the applicant’s attack,determine if it raises a question of law or jurisdiction and gauge whether the issue is arguable.” [51] After characterizing a question, “the judge must decide whether the review of that question will proceed as a statutory appeal,under s. 13.4(1) (questions of law or jurisdiction) or by judicial review (other questions)”: Alberta at para 17. [52] The Supreme Court of Canada in Canada (Director of Investigation & Research) v Southam Inc, (SCC),[1997] 1 SCR 748, 144 DLR (4th) 1 [Southam] provided this brief guidance at para 35 for identifying the types of questions in issue: ... questions of law are questions about what the correct legal test is; questions of fact are questions about what actually took placebetween the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests... [53] The Supreme Court recognized “the distinction between law on the one hand and mixed law and fact on the other is difficult.On occasion, what appears to be mixed law and fact turns out to be law, or vice versa”: Southam at para 35.

Canadian Courts furtherrecognize that it is possible to extricate a pure legal question from what appears to be a question of mixed fact and law: see Alberta atparas 22, 27 and 28; Valgardson v Valgardson, 2012 ABCA 124 at para 12; Chauvet at para 17; Mustard v Brache 2006 ABCA 265 atpara 13; and Housen v Nikolaisen, 2002 SCC 33 at paras 34 and 36 [Housen]. b. Analysis re characterization of issues [54] Mr. Zarooben’s first ground of appeal is based on whether there was an error in the

interpretation and application of ss 24(1)and 56(4) of the Act, or relevant provisions and policies. In particular, the WCB determined whether it had ongoing responsibility for theApplicant’s MTBI after July 27, 2018, and whether he was entitled to TTD benefits after that date. [55] In considering a statutory appeal under the WCA, the reviewing court must be wary of questions of fact or mixed fact and lawthat have been dressed up as questions of law: Patrus at para 26. [56] While the

interpretation of WCB policy is a question of law, how the Appeals Commission applied its

interpretation of WCBpolicy to the facts of Mr. Zarooben’s case raises a question of mixed fact and law: Elgie v Alberta (Workers’ Compensation BoardAppeals Commission), 2009 ABCA 277 at paras 27 and 28; Shuchuk v Alberta (Workers’ Compensation Board Appeals Commission),2007 ABCA 213 at paras 22 and 32; Southam at para 35; Housen at para 36; and Alberta at paras at 21-22. [57] I conclude that this first issue raises a question of mixed fact and law. It is about how the Appeals Commission dealt with thefacts within the scope of the Act and relevant policies in deciding to terminate benefits.

A pure question of law or jurisdiction cannot beextricated therefrom. [58] The second ground of appeal that the decision was contrary to the principles of natural justice raises a question of law: MilnerPower Inc v Alberta (Energy and Utilities Board), 2007 ABCA 265 at para 27. [59] The third ground – that the hearing and decision were procedurally unfair and “did not give proper weight to the evidenceprovided by the Applicant and completely ignored it” - articulates two main concerns, which require further re-classification as follows: (

i) the Appeals Commission’s was procedurally unfair; and (ii) that the Appeals Commission allegedly ignored evidence in his favour, as well as failed to give proper weight to the evidenceprovided by the Applicant. [60] To the extent that the third ground of appeal raises a question about procedural fairness, I conclude that issues pertaining toprocedural fairness, including any allegation that a party was not able to fully and fairly present their case, raise questions of law: Keefe vEdmonton (City), 2005 ABCA 144 at para 9; Steele v Edmonton Police Service, 2016 ABCA 95 at para 8; and Walsh v Mobile OilCanada, 2013 ABCA 238 at para 68. [61] A question concerning the appropriate weight to be assigned to evidence is generally characterized as a question of fact orpossibly mixed fact and law: Alberta at para 69; Wal-Mart Canada Corp v Calgary (City), 2013 ABQB 21 at para 26; and AssociatedDevelopers Ltd v Edmonton (City), 2011 ABQB 592 at para 36. [62] Thus, insofar as Mr.

Zarooben is concerned that the Appeals Commission ignored relevant evidence and did not giveappropriate weight to all relevant evidence, it follows that these issues involve a question of mixed fact and law and should be consideredpart of the judicial review. VI. STANDARD OF REVIEW [63] The parties made submissions on the application of Vavilov principles to this case. It is recognized that this decision has re-

shaped the standard of review landscape - abandoning the contextual approach in favour of a category-based framework. [ 64 ] The Appellant argued that the standard of review ought to be correctness on the basis that this case involves a statutory right of appeal, which allows the Vavilov reasonableness presumption for administrative tribunals to be rebutted. [ 65 ] The Respondents both submit that, given the nature of the issues involved, this proceeding is a judicial review, and the applicable standard of review is reasonableness. [ 66 ] The Supreme Court of Canada in Vavilov held that the standard of review of reasonableness is the starting point in all situations. [ 67 ] However, the presumption of reasonableness can be rebutted in two types of situations: 1) Where the legislature has indicated that it intends a different standard to apply: (

i) where the legislature explicitly prescribes the applicable standard of review; (ii) where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signaling the legislature’s intent that appellate standards apply when a court reviews the decision. 2) Where the rule of law requires that the standard of correctness be applied: (

i) constitutional questions; (ii) general questions of law of central importance to the legal system as a whole; and (iii) questions related to the jurisdictional boundaries between two or more administrative bodies. [ 68 ] Vavilov stated that where the legislature has provided for an appeal from an administrative body to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and jurisprudence on appellate standards of review. [ 69 ] Where the statutory appeal concerns questions of law, statutory

interpretation, or those concerning the scope of a decision maker’s authority, the correctness standard applies in accordance with the appellate standard of review jurisprudence in Housen at para 8 . [ 70 ] In the present appeal that has been taken under s 13.4 of the WCA , it is not possible to pursue a statutory appeal except on a question of law or jurisdiction; and consequently, anything else – i.e. question of mixed law and fact or question of fact – can only be pursued under the judicial review mechanism. [ 71 ] The distinction between the applicable standard of review to be applied in a situation where the applicant files both a statutory appeal raising questions of law or jurisdiction and a judicial review raising questions of mixed fact and law was dealt with in a recent, unpublished decision of this Court: McLaughlin v Appeals Commission for Alberta Workers’ Compensation (6 August 2020), Edmonton 1603-21044 (Alta QB) (per Kraus J).

I adopt his conclusions in respect of the proper assessment for combined applications post- Vavilov . [ 72 ] As a statutory appeal process is provided for in s 13.4 of the Act , a listed exception to the Vavilov reasonableness presumption is triggered.

Thus, in accordance with Housen at para 8 and Vavilov at para 37 , the standard of correctness is applicable to any questions of law or jurisdiction raised in the context of the WCA . [ 73 ] The allegation that there has been a breach of natural justice is reviewable on the correctness standard: Johnston v Alberta (Director of Vital Statistics ) , 2008 ABCA 188 at para 12 and Sanderson v Alberta (Criminal Injuries Review Board) , 2010 ABCA 167 at para 10 . [ 74 ] Similarly, the standard for determining whether the decision makers complied with the duty of procedural fairness is correctness: Khela v Mission Institution , 2014 SCC 24 at para 79 ; Anand v Anand , 2016 ABCA 23 at para 8 ; Tartaglia v Alberta (Workers’ Compensation Board Appeals Commission) , 2012 ABCA 186 at para 23 ; Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2012 ABCA 78 at para 17 [ Thompson Brothers ] ; and Allsop v Alberta (WCB Appeals Commission) , 2011 ABCA 323 at para 21 . [ 75 ] The fairness of the proceedings is not measured based on whether they are “correct” or “reasonable” in the Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190 [ Dunsmuir ] sense.

Rather, these issues are reviewed based on whether the proceedings met the level or standard of fairness required by law: Fitzpatrick v College of Physical Therapists of Alberta , 2019 ABCA 254 at para 29 [ Fitzpatrick ].

Because the court affords no deference when deciding whether the fairness standard has been met, in that sense fairness is reviewed on a standard of correctness: Goold v Alberta (Office of the Children’s Advocate) , 2011 ABCA 63 at para 14 ; Nortel Networks Inc v Calgary (City) , 2008 ABCA 370 at paras 32 and 39 ; and Pierce at para 36 . [ 76 ] The Vavilov reasonableness presumption does not apply to judicial review related to an alleged breach of natural justice and/or the duty of procedural fairness: Vavilov at para 23 .

[ 77 ] Prior to Vavilov , the Alberta Court of Appeal stated, in Johnson v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2011 ABCA 345 at paras 12 – 15 [ Johnson ], that the criteria outlined in Baker v Canada (Minister of Citizenship & Immigration) , 1999 SCC 699 [ Baker ] are not engaged when the appeal tribunal’s procedural obligations are already prescribed by legislation and its own appeal rules. [2] Our Court of Appeal stated: The present dispute was not a situation in which the Baker factors had to be analyzed to determine if the Respondent was entitled under the common law to a hearing, or to introduce fresh evidence, or whether he had standing at the hearing, or whether live testimony of witnesses, or cross-examination, were available options.

All those issues are dealt with in the WCA and the Rules . The appropriate analysis should, accordingly, be based on those Rules , and an examination of whether the Appeals Commission’s

interpretation and application of them was reasonable.

See also, Thompson Brothers at para 17 , where the appellate Court commented that: “Where the Appeals Commission is interpreting and applying its procedural rules (including those in the Act ), the standard of review is reasonableness.” [ 78 ] To the extent that the statements of our Court of Appeal in Johnson and Thompson Brothers suggest that the reasonableness standard applies to review of procedural fairness, I should comment that they were decided prior to Vavilov ; and, accordingly, were based on the administrative jurisprudence that existed before the reasons in Vavilov were issued by the Supreme Court of Canada. [ 79 ] On the role of prior administrative jurisprudence, the Supreme Court in Vavilov at para 143 stated: These reasons set out a holistic revision of the framework for determining the applicable standard of review.

A court seeking to determine what standard is appropriate in a case before it should look to [the Vavilov reasons] first in order to determine how this general framework applies to that case. Doing so may require the court to resolve subsidiary questions on which past precedents will often continue to provide helpful guidance. Indeed, much of the Court’s jurisprudence, [...] will continue to apply essentially without modification. On other issues, certain cases — including those on the effect of statutory appeal mechanisms [....] — will necessarily have less precedential force .

As for cases that dictated how to conduct reasonableness review, they will often continue to provide insight, but should be used carefully to ensure that their application is aligned in principle with these reasons [ emphasis added ]. [ 80 ] These comments, in my opinion, impact cases such as Johnson and Thompson Brothers such that the correctness standard now applies to appellate review of allegations engaging procedural fairness and breaches of natural justice as questions of law under the Workers’ Compensation Act . [ 81 ] Finally, whether the Appeals Commission ignored, failed to consider or to assign appropriate weight to all relevant evidence will proceed under the rubric of judicial review, and pursuant to the presumption of reasonableness: Vavliov at para 52. a.

Issues re-framed and applicable standards of review [ 82 ] To summarize, the issues therefore in this proceeding that involve pure questions of law, subject to the correctness standard and are therefore issues relating to statutory appeal under s 13.4 of the Act are as follows: (

a) Did the Appeals Commission Decision breach the principles of natural justice? (

b) Did the Appeals Commission hearing or decision breach the principles of procedural fairness? [ 83 ] The issues in this proceeding that involve a judicial review based on the reasonableness of the Decision are as follows: (

a) Did the Appeals Commission err by ignoring evidence and by failing to assign appropriate weight to all of the relevant evidence? (

b) Did the Appeals Commission err in its

interpretation and application of WCB policy concerning TTD benefits? VII. ANALYSIS OF APPEALS COMMISSION DECISION [ 84 ] There were two distinct questions before the Appeals Commission. Question 1: The Appeals Commission found that based on sections 13(1), 46.3(1) and (2), WCB Policy 03-01, 03-02 (Part I

interpretations 1 and 2 and

Part II), there was no relationship between the worker’s compensable injuries and MTBI symptoms after July 27, 2018. Question 2: With respect to the second question, the Appeals Commission considered oral submissions on the question of whether it may consider continuing TTD benefit for the period of the unavoidable delay and it held that section 24(1)(a), 56 and 56(8) and WCB Policy 04-02

Part 1,

Interpretation 1.0 and Policy 04-02

Part II, Application 1, Questions 1 and 2, did not allow for it and that the decision to cease payments on July 27, 2018 was confirmed. a. Relevant Legislation

[85] The WCB is an administrative tribunal with exclusive legislative authority to administer the Act. The Supreme Court ofCanada has affirmed the expertise and exclusive jurisdiction of workers’ compensation boards to determine entitlement, rehabilitation,and compensation for work related injuries: Pasiechnyk v Saskatchewan (Workers’ Compensation Board), (SCC),[1997] 2 SCR 890 at paras 32 and 38, (1997), 149 DLR (4th) 577. [86] The Act provides a complete statutory code for the provision of compensation to workers who are injured in workplaceaccidents.

The purpose of the workers’ compensation system is to provide injured workers with compensation that is independent of“fault” for an accident and the ability of an employer to pay. In exchange, the injured worker loses his or her common law right to sueemployers or other workers. [87] Pursuant to

section 13.1(1) of the Act, the Appeals Commission has exclusive jurisdiction to inquire into and examine allmatters and questions arising under the Act in respect of appeals from decisions made by the WCB review body. [88] In making its decisions, the Appeals Commission is bound by relevant legislation, WCB policy and jurisprudence: s 13.2(6)(b). [89] Under s 46 of the Act, WCB claims adjudicators make initial determinations about compensation. These decisions may bereviewed internally by the DRDRB. A de novo appeal may be made to the Appeals Commission, which is independent and external tothe WCB.

An appeal or judicial review may be made to the Court of Queen’s Bench under certain circumstances (Act, ss 13.2 and 13.4). [90] In addition to the sections already outlined above, the following provisions of the Act are relevant to this proceeding: s 13.2

(2) In considering an appeal from a decision under

section 46, the Appeals Commission shall consider the records of the claimsadjudicator and the review body relating to the claim.

(3) In considering an appeal from a decision under

section 120, the Appeals Commission shall consider the records and informationavailable to the review body relating to the matter under consideration.

(4) In considering an appeal from a determination of the Board under section 21(3), the Appeals Commission shall consider the recordsand information available to the Board relating to the matter under consideration.

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

a) shall give all persons with a direct interest in the matter under appeal an opportunity to be heard and to present any new or additionalevidence; (

b) is bound by the board of directors’ policy relating to the matter under appeal,

(6.3) The Appeals Commission shall determine all matters and questions arising under this Act and the regulations in respect of it havingregard to the substance of the matters in dispute and the merit of the positions of the parties, in a manner consistent with the provisions ofthis Act, the regulations and workers’ compensation principles. [….] s 13.4

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

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

b) where it sets aside the decision, refer the matter back to the Appeals Commission for reconsideration in accordance with anydirections the Court considers appropriate. [….] Eligibility for compensation 24(1) Subject to this Act, compensation under this Act is payable (

a) to a worker who suffers personal injury by an accident, unless the injury is attributable primarily to the serious and wilful misconductof the worker, and (

b) to the dependants of a worker who dies as a result of an accident. [….] Medical panels

46.3(1) Where it considers it appropriate to do so, the Board or the Appeals Commission may, in the course of evaluating a claim for compensation under this Act , request that a medical panel be established under this

section to deal with a medical issue relative to the claim.

(2) Where, in the Board’s or the Appeals Commission’s opinion, a difference of medical opinion arises in the course of the Board’s or Appeals Commission’s evaluation of a claim for compensation under this Act , the Board or the Appeals Commission, as the case may be, shall request that a medical panel be established to deal with the matter. [….] Compensation for disability 56

(1) The Board shall pay periodic compensation [ 91 ] Pursuant to s 13.1(1) of the Act , the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under the Act in respect of appeals from decisions made by the DRDRB. Subject to s 13.4, the decision of the Appeals Commission is final and conclusive and is not open to question or review in any court. [ 92 ] The Appeals Commission has the power under s 13.1(3) of the Act to make rules governing the practice and procedures applicable to proceedings before it.

Appeal Rules Rule 4.1(1) of the Appeal Rules states that the Appeals Commission may consider all matters and questions arising under the Workers’ Compensation Act in respect of an appeal. Rule 4.1(2) provides the Appeals Commission is not restricted to reviewing only those issues stated in the notice of appeal. The Appeals Commission may consider all issues and questions that it concludes arise under the Workers’ Compensation Act in respect of the appeal.

Rule 4.1(3) states the Appeals Commission may hear and decide an appeal as if the matter had not been previously decided and may consider any evidence obtained by it or presented it considers relevant. Rule 4.6(2) provides the Appeals Commission must consider all relevant evidence submitted by a party or participant that relates to the appeal and that is submitted to the Appeals Commission in accordance with these rules.

Rules 4.12(1) states after the participants have had an opportunity to present evidence, the Appeals Commission must give every participant at the hearing an opportunity to make a final argument. b. Statutory Appeal Questions [ 93 ] I will first deal with the statutory appeal questions: (

a) Did the Appeals Commission Decision breach the principles of natural justice? (

b) Did the Appeals Commission hearing or decision breach the principles of procedural fairness? [ 94 ] I note that Mr. Zarooben did not tie these questions to specific allegations.

I assume based on the arguments made that these grounds overlap. [ 95 ] In any event, I have concluded that there was no breach of the principles of natural justice nor the principles of procedural fairness. [ 96 ] Although no particular allegations were raised in relation to any defect in how the hearing before the Appeals Commission was conducted, I wish to address the law in relation to the principles of procedural fairness as it is raised in Mr.

Zarooben’s pleading. [ 97 ] In Buryn v Alberta (Minister of Municipal Aff airs ) , 2017 ABQB 613 at para 31 , Pentelechuk J wrote that: Procedural fairness ensures that administrative decisions are made using a fair, impartial, open, and transparent process that provides those affected by the decision an opportunity to know the case against them and to fully put forth their views and the evidence they wish the decision-making body to consider.

The duty of fairness is flexible, variable, and contextual in nature, and accordingly, the level of procedural fairness owed will vary depending, in part, on purpose and intent of the applicable legislation and the process for decision making outlined in the legislation. [ 98 ] As noted earlier, Thompson Brothers at para 17 , our Court of Appeal held that it is not necessary to resort to the Baker factors in order to determine the appropriate standards of fairness required, given that the WCA and the Appeal Rules contain detailed provisions regarding the form and content of hearings before the Appeals Commission. [ 99 ] The Appeals Commission is bound by s 13.2 of the Act in conducting appeals.

This

section places the following obligations on an appeal panel:

• it shall consider the records of the claims adjudicator and the review body relating to the claim; • it shall consider the records and information available to the WCB relating to the matter under consideration; • it shall give all persons with a direct interest in the matter under appeal an opportunity to be heard and to present any new or additional evidence; • it is bound by the WCB’s board of directors’ policy relating to the matter under appeal; • shall permit the WCB to make representations, in the manner and form that the Appeals Commission directs, as to the proper application of policy determined by the WCB’s board of directors or of the provisions of the Act or the regulations that are applicable to the matter under appeal: s 13.2. [ 100 ] The Appeals Commission also has the express authority under the Act to make rules governing the practice and procedure applicable to proceedings before it.

The Appeals Commission enacted a set of Appeal Rules , which incorporate the requirements set put in

section 13.2 of the Act and add the following: • the Appeals Commission must consider all relevant evidence submitted by a party or participant that relates to the appeal and that is submitted to the Appeals Commission in accordance with its Appeal Rules ; • the Appeals Commission may admit any evidence, including hearsay evidence, that it considers relevant to the appeal, whether or not a court would admit the same evidence.

However, it may decide not to admit evidence that it considers to be repetitious, serves no purpose, or is not relevant; • The Appeals Commission may question a witness at a hearing, including asking questions about the record or any other evidence or information before it; • After the participants have had an opportunity to present evidence, the Appeals Commission must give every participant at the hearing an opportunity to make a full argument. [ 101 ] Provided the Appeals Commission applied and followed the procedural rules and requirements set out in the Act , the Appeal Rules and the Appeal Guidelines , it will have met its procedural fairness obligations: Johnson at para 14 . [ 102 ] An issue of procedural fairness normally includes an allegation that a party was not able to fully and fairly present their case.

Mr. Zarooben does not provide particulars of the processes he believes were unfair. [ 103 ] The record reflects the fact that he was allowed to enter new evidence before the Appeals Commission including his own explanation and

interpretation of his assessments. [ 104 ] The Appeals Commission had compiled a record of all of the relevant documents from the Applicant’s WCB claim file, including correspondence, medical charts, letters, and reports, case manager decisions and the DRDRB decision. The bundle of documents, called the “Appeal Documents Package” was sent to the Applicant under cover of letter dated May 6, 2019 and to the Applicant’s representative, 57 days before the scheduled hearing date of July 3, 2019. [ 105 ] The Applicant was given a full opportunity to make a thorough and meaningful case.

The Appeals Commission explained that it was a de novo proceeding and that it was not bound by previous decisions; it accepted new written submissions with exhibits from the Applicant’s representative, and permitted substantial oral submissions from the Applicant and his representative. [ 106 ] The burden of proving procedural unfairness rests with the Applicant, and in my view, he has not discharged this burden on the appellate correctness review standard ( Housen , Vavilov ). [ 107 ] Finally, the Applicant argues that the Appeals Commission in its Decision ignored evidence favourable to him and did not give proper weight to the evidence.

As noted previously, these arguments do not address the procedural fairness of the appeal hearing, but rather question of facts or question of mixed law and facts. [ 108 ] Given that no statutory appeal of question of facts or question of mixed law and facts is available under the WCA , these latter questions are only reviewable through judicial review procedure and the presumptive reasonableness review standard, as discussed below.

The same reason makes the appellate standard of palpable and overriding error inapplicable for review of the arising question of facts as well as question of mixed law and facts in this matter; such issues or questions are not appealable under the current “circumscribed right of appeal” provisions of the WCA , s 13.4: Vavilov at para 52 .

c. Judicial Review Questions [109] Thus, the remaining questions to be answered are: (

a) Did the Appeals Commission err by ignoring evidence and by failing to assign appropriate weight to all of the relevant evidence? (

b) Did the Appeals Commission err in its

interpretation and application of WCB policy concerning TTD benefits? Did the Appeals Commission err by ignoring evidence and by failing to assign appropriate weight to all of the relevant evidence? [110] Regarding the allegation that evidence was ignored in this case, I am satisfied that the Appeals Commission considered all therelevant evidence in its Decision and explained why it was rejecting evidence that was favourable to Mr.

Zarooben. [111] The Supreme Court of Canada, in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (TreasuryBoard), 2011 SCC 62 at para 16, made it clear that a tribunal’s decision will not be unreasonable simply because it did not refer to everyargument made or every piece of evidence in the record: Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would havepreferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis.

A decision-maker isnot required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (ServiceEmployees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., (SCC), [1975] 1 S.C.R. 382, atp. 391).

In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [112] The fact that the panel may not have referred to one of the Applicant’s specific arguments or a piece of evidence does not meanthat the panel did not consider them. The panel had the Applicant’s written submissions before it and heard the oral submissions of theApplicant’s representative from the Fair Practices Office.

It also had the Appeal Documents Package before it, which included all of themedical reports on the Applicant’s WCB claim file. [113] The Decision also identifies all the evidence considered and the oral submissions by Mr. Zarooben and his representative.Although not every piece of evidence is mentioned in the Decision, I am comfortable that it was considered. [114] The question as to whether or not the Appeals Commission failed to assign appropriate weight to the evidence before it overlapsthe issue of interpreting and applying the Act as well as the WCB Policy to the facts of Mr. Zarooben’s case.

This perspective leads tothe second question arising in the context of judicial review component of this matter. Did the Appeals Commission err in its

interpretation and application of WCB Policy concerning TTD benefits? [115] The Appeals Commission panel concluded that: Issue 1: The WCB did not have ongoing responsibility for the Applicant’s MTBI on the basis that the weight of evidence did not supporta causal relationship between the worker’s compensable injuries and any reported MTBI symptoms after July 27, 2018; and Issue 2: The Applicant was not entitled to temporary total disability benefits after July 27, 2018.

Issue 1 [116] The Appeals Commission relied on the following medical evidence to conclude that there was no ongoing causal relationshipbetween the workplace injury and the symptoms: • WCB Medical Consultant Dr. Myron Stelmaschuk recorded in a contact memo (on February 23, 2016) that he spoke to theApplicant’s treating physician, Dr. John Barrow, who concurred that the worker had completely recovered from his January 15, 2016head injury 2 (para. 21.6); • Dr. Stelmaschuk concluded that the Applicant required no further treatment for his compensable injuries (para. 21.6); • Psychiatrist Dr.

Paul Quickfall, having assessed the Applicant, gave the opinion that the Applicant was “symptom and disabilityfocused, and it seems clear that there is likely an element of secondary gain in his presentation.” He also stated: “I do not think thisnecessarily precludes the legitimate existence of an anxiety disorder, however, I do not see any evidence for a depressive disorder” (para.21.7); • Clinical neuropsychologist Dr. Steward Longman reported that the Applicant exhibited symptom exaggeration and minimization

of any unfavourable personality characteristics, the worker’s injuries would meet the criteria for MTBI at most, and that persisting cognitive effects would not be expected (para. 2.18); • The panel noted that the above clinical psychologist opinions indicate that while the worker met the definition for MTBI, he was expected to reach resolution; • In a February 1, 2018 report, Clinical neuropsychologist Dr.

Arlin Pachet stated that: his assessment of the Applicant revealed “profound invalidity”; that there was no evidence that the Applicant sustained anything other than an uncomplicated MTBI; and that people with the same severity of brain injury typically experience quick and full resolution of symptoms within weeks if not a few months at most (para. 22.1); • WCB Medical Consultant Dr.

Catharine Grieve, following a documentary review, provided the opinion that: o the weight of evidence in the medical record did not support that the Applicant’s current symptoms were related to the date-of- accident events; o there did not seem to be any diagnosis related to the injury/condition assessed under the claim currently; and o the medical record did not support that the Applicant’s current symptoms were related to the date-of-accident injuries (para. 22.3); • Dr.

Quickfall gave the opinion that while it is possible that the Applicant had sustained an increase in his anxiety as a result of his work accident, there was insufficient information to confidently determine a causal relationship (para. 22.5) The Appeals Commission panel stated that it placed significant weight on the 2018 reports of its own WCB Medical Consultant, Dr. Grieve, who only completed a document review.

It stated that “...she had a good understanding of the objective medical findings and opinions of the worker’s health care providers and was able to weigh them accordingly in forming her opinion that the worker’s ongoing symptoms were not related to the date of accident mechanisms of injury.” The Appeals Commission further explained why it gave less weight to the evidence of Mr. Zarooben’s treating physician, Dr.

Barrow, namely that: • his statement that the Applicant was permanently disabled and unable to perform any kind of work was contradicted by his subsequent June 1, 2018 report that the Applicant no longer had any functional restrictions and that there were no other reasons recorded as to why he could not work (para. 23.1); • the weight of objective evidence from various specialists who examined the Applicant does not support Dr.

Barrow’s assessments of his condition relating to his MTBI after July 27, 2018 (para. 23.2); • his statement that the Applicant’s need for insulin and needles were reasonably related his work–related injuries was inconsistent with his MTBI, and instead required to treat his diabetes, which is a non-compensable condition. [ 117 ] The Supreme Court in Vavilov held that the focus of reasonableness review must be on the decision actually made by the tribunal, including the tribunal’s reasoning process and the outcome; the reviewing Court is to refrain from deciding the issue itself.

The Court must not ask what decision it would have made in place of that of the administrative decision-maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis, or seek to determine the “correct” solution to the problem: para 83. [ 118 ] Borrowing from Dunsmuir at paras 47-49 , the Court in Vavilov reiterated that reasonableness “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.” [ 119 ] Moreover, the Supreme Court held that “it is not enough for the outcome of a decision to be justifiable .

Where reasons for a decision are required, the decision must also be justified , by way of those reasons, by the decision maker to those to whom the decision applies”: Vavilov at para 86 . [ 120 ] The burden is on the party challenging the decision to show that it is unreasonable: Vavilov at para 100 . [ 121 ] I conclude for the reasons set out below that the Decision lacks “rationality internal to the reasoning process” as it relies on evidence previously rejected by the Appeals Commission as insufficient, subsequent evidence that is inconclusive on whether the ongoing symptoms are related to the initial MTBI diagnosis, and a document review report from Dr.

Grieve that is flawed for the very same reasons. In accordance with Vavilov , I find the Decision is “untenable in light of the relevant facts and legal constraints that bear on it”: para 101. [ 122 ] Moreover, Vavilov further specified that a decision must be based on reasoning that is both rational and logical. Reasonableness cannot mean any reason. In this case, the fatal flaw, in my view, is that there is a lack of evidence of Mr.

Zarooben’s recovery from his initial diagnosis, which was accepted as compensable, the result being that there is no conclusive evidence that his ongoing symptoms are unrelated to it. I therefore do not find that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Vavilov at para 102 . [ 123 ] At paragraph 104, the Supreme Court further stated that:

[T]he internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians.

However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”. [ 124 ] While it is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision- maker in a particular case, Vavilov at para 106 sets out elements that will be relevant in evaluating whether a given decision is reasonable: • the governing statutory scheme • other relevant statutory or common law • the principles of statutory

interpretation • the evidence before the decision-maker and facts of which they may take notice • the submissions of the parties • the past practices and decisions of the administrative body • the potential impact of the decision on the individual to whom it applies. [ 125 ] A reviewing court must also refrain from “reweighing and reassessing the evidence considered by the decision-maker”: Vavilov at para 125 , Schroder v Alberta (Workers’ Compensation Board ) 2010 ABCA 344 at paras 13 , 16 and Allsop v Alberta (Workers’ Compensation Board) 2011 ABCA 323 at para 37 . [ 126 ] I am very aware of the deference accorded to the Appeals Commission’s panel and do not arrive at my conclusion lightly.

Without re-weighing or substituting my own analysis, I am unable to find a line of analysis that would reasonably lead to the Decision made. [ 127 ] In this regard, I also note that the Supreme Court clarified, in Vavilov at para 126 , “how to” conduct a reasonableness review without reweighing evidence when the Court stated: That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir , para. 47 .

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam , at para. 56 .

The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it …. [ Emphasis added ] [ 128 ] Based on that prescribed guideline, the reasons for which I conclude that the Decision was unreasonable are as follows: • There is clear documentation and acceptance of a MTBI by medical experts, even though some opine that the worker ought to have recovered; • There is no break in the reporting of symptoms to the worker’s medical professionals; • A previous Appeals Commission decision dated October 24, 2017 dealt with WCB’s reliance on the same Contact Note by Dr.

Stelmaschuk’s to deny ongoing benefits. The Appeals Commission remitted the decision back to the WCB for reconsideration as the evidence up to that point was insufficient to conclude that there was no causal relationship with the compensable injury; • In its reassessment, the WCB wrote a letter dated December 20, 2017 accepting MTBI as a compensable injury based on Dr. Longman’s October 16, 2017 report and entitlement to ongoing TTD based on continuous medical reporting from Dr. Barrow, Dr. Debert, Dr. Quickfall, and Dr.

Longman regarding his ongoing MTBI difficulties which prevented him from performing at his pre- accident level of functioning; • The only objective evidence relied upon in the Decision in question to conclude that the worker recovered was the same 2016 Contact Note from Dr. Stelmaschuk’s 2016; however, this note is contradicted by Dr.

Barrow’s subsequent letter provided shortly after that phone call and other medical reports that were obtained after a prior Appeals Commission panel in 2017 rejected this evidence as being insufficient; • Even if this Contact Note might still be relevant to the Decision overall, it was based on double hearsay evidence. While I recognize hearsay evidence is permitted ( Alberta (Workers’ Compensation Board) v Appeals Commission , 2005 ABCA 276 at para 65 ), in this case, it was unreliable and previously rejected by the Appeals Commission as insufficient; • The Appeals Commission considered only parts of Dr.

Barrow’s Physician Progress Report, dated June 1, 2018, to conclude the worker had no ongoing functional limitations, but failed to explain that consideration in the context of the entirety of the form, which gave a more complete picture: o no change in diagnosis; o symptoms of headaches, pressure behind eyes, dizziness, balance issues, depression, short time memory loss, poor concentration; o objective findings of: tenderness over the paracervical muscles, worse with movement. Neck ROM limited.

o Class 1 license had been cancelled indefinitely; o while the physical functional limitations box was left empty, Dr. Barrow added a note under other restrictions that physiotherapy for the neck recommended- therapy for traumatic brain injury; o Under the question of the estimated date expected for the worker to perform pre-accident work, Dr. Barrow indicated June 1, 2018. This appears to be a contradiction with the remainder of the report, particularly since the worker’s license was revoked by the doctor and the diagnosis remained the same.

I also note that the expected return date is the same date as the Progress Report. Therefore, it appears this is a contradiction that the WCB ought to have attempted to resolve prior to its conclusion. • The panel finds that the conclusion of Dr.

Grieve, who conducted a document review, is consistent with the opinion provided by a psychiatrist in the brain injury clinic on September 17, 2018; however, that psychiatrist was only able to conclude that there was “insufficient information to confidently determine a causal relationship”. [ 129 ] WCB Policy 03-01 requires that in cases where the relationship between the injury and the compensable accident is not obvious (in this case after the date of July 27, 2018), the WCB is responsible for gathering additional relevant evidence (Policy 03-01,

Part II, Application 1, Question 1; Policy 02-02,

Part I,

Interpretation 4.0). [ 130 ] The only medical evidence of whether the brain injury concluded was speculative and based on an expectation of recovery, not objective findings. Moreover, in light of the contradiction between the document review and subsequent contradictory reports from Dr. Barrow and Dr. Zia-Ul Haque, the failure to exercise the discretion to properly resolve the conflict was unreasonable. [ 131 ] Finally, one of the reasons the Appeals Commission rejected Dr.

Barrow’s report was because he listed insulin medication as being related to the accident; I find that this ignores the whole of the evidence, namely that there were many other medications listed aside from the insulin and that listing insulin was obviously an error. [ 132 ] Notably, there was no other documented cause for the ongoing symptoms and objective findings. Overall, it appears the evidence in support of the Appeals Commission’s Decision was cherry-picked and contradictions were not seriously considered or ignored.

This lack of accountability makes the Decision unreasonable and not in line with the purpose of the Act , nor reflective of “the potential impact of the decision on the individual to whom it applies”: Vavilov at para 106 . [ 133 ] The purpose of workers’ compensation legislation is to “provide generous coverage to workers for workplace injuries”: Shuchuk at para 42 . Accordingly, the Act must be given a broad and liberal

interpretation that will provide compensation to “as many workers in as many circumstances as the legislative scheme will reasonably permit”: ibid at para 46. [ 134 ] There were inconsistencies and sloppiness in Dr. Barrow’s reporting, but instead of seeking additional clarification, the WCB chose to reject the claim and rely on evidence previously rejected as insufficient (Dr. Stelmaschuk’s Contact Note of 2016: para 21.6), and reports previously accepted by the WCB in its December 20, 2017 letter as supporting the claim (psychological reports May 1, 2017 and October 16, 2017: para 21.7 and 21.8).

The remaining evidence relied on (para 22), are reports that are inconclusive or speculative with respect to recovery expectation and Dr. Grieve’s conclusion based on the same unreliable evidence and inconclusive reports. [ 135 ] The legislation’s overarching principles require a worker-centered approach to resolve apparent errors and inconsistencies and a fair assessment of the evidence to resolve these issues. [ 136 ] It is clear from the record that the worker was difficult to deal with, possibly deliberately, resulting in invalid findings.

He also at times appeared threatening to various health-care workers, making him unsympathetic. Mr. Zarooben provided a letter to the Appeals Commission, explaining the encounter with Dr. Quickfall. He appears to try to make sense of why he feels neglected by specialists: “Is it because I talk strong, that I look good...My anxiety level increases, I start rambling on it gets very emotional and I say things that I might regret and make a lot of mistakes.

I have bad judgment especially when it becomes representing myself that matters” [ sic ]. [ 137 ] He further explains: “I got emotionally frustrated when he said to me that all of my symptoms from the assault and from the fall could not related to those two events. He also said I would be lying if I did so.” This seems to have contributed to his offensive outburst towards Dr. Quickfall. [ 138 ] No one has addressed the possibility that his offensive behaviour is related to his brain injury.

The records demonstrate that he is still traumatized by the physical attack he previously suffered in 2000 as it pervades much of his own story-telling. His thought patterns in his writing are scattered and illogical.

However, after a rambling explanation of his life and medical issues, he concludes with: “Now you have a complete understanding at times, that why I react and shout-out and get so frustrated occasionally, when I’m in the presence of these few doctor’s at the Foothills Medical Centre” [ sic ]. [ 139 ] While no health-care worker should ever be subjected to threats or harassment, I find that the unfortunate incidents ought to have been considered in light of the overall challenges, limitations, and difficulties of this particular worker.

Instead, the reliance on the findings of invalidity from the psychological assessments appears to overshadow an objective analysis of the file materials. [ 140 ] I note that there was evidence of the cause of the MTBI and ongoing symptoms without a break in causation or any other explanation of their persistence: • Initial diagnosis in hospital on January 25, 2016 by Dr. Moussadji was of a severe concussion. Ongoing reporting concluded that there was a diagnosis of concussion and MTBI as well as an exacerbation of anxiety arising from the workplace accident; • Dr.

Chantal Debert’s letter dated February 24, 2017 documents that while the balance and anxiety symptoms have a premorbid component to them, the fall exacerbated them and that his balance was much worse. In particular, she stated: “I believe on physical examination and history it was evident that he did acquire posttraumatic BPPV. This would overall exacerbate his balance issues and make it more difficult for him in terms of balance and gait. It will also have increased risk of having episodes of vertigo in the future

secondary to the BPPV”; • Dr. Alexandra Hanson (neurologist) letter March 26, 2018 concluded that Mr. Zarooben had two traumatic brain injuries, extreme anxiety and supported his continuation of CPP disability benefits. I note this is the same doctor who saw Mr.

Zarooben in the urgent neurology clinic on January 27, 2016 and concluded at that time that he had symptoms consistent with a post-concussive syndrome, marked element of anxiety but no explanation for why he was having difficulties with tandem gait; • Letter dated May 7, 2018 from Samantha Lowe, Registered Occupational Therapist concluded: “I performed several physical and cognitive assessments with David Zarooben on March 20th, and April 4th, 11th and 26th, 2018.

David was found on all physical and cognitive assessments to be impaired.” She also noted: “David’s results regarding cognition were consistent throughout assessments, showing he has moderate to significant cognitive impairments that appear permanent. However, his performance with the physical assessment was not [...] David always presented well dressed, and groomed at my office, reporting and subsequently showing that he is performing his ADL’s independently and appropriately”; • Dr.

Barrow, who was the worker’s treating physician, stated in a letter dated June 20, 2018 “This disabled patient had cognitive assessment by Dr. Stewart Longman in 2016. At that time his cognition was found to be only mildly Impaired. One year later had another assessment which relieved that his cognition was severely impaired. Between those two assessments, we as his physicians have observed a decline in his cognitive ability. We consider him permanently disabled” [ sic ]; • June 8, 2019 letter from psychiatrist Dr.

Zia-Ul Haque states: “There were symptoms consistent with post-concussion syndrome secondary to traumatic brain injury and he may have PTSD-like symptoms. He is also endorsing symptoms consistent with mixed anxiety and depression” [3] ; • Dr. Barrow signed a letter dated June 24, 2019 that stated: “We’ve permanently revoked his Class 1 Alberta’s Commercials Licence, on or about March 30, 2018, to protect Him from being a Hazard to him self or other’s on our Puplic roads” [ sic ]. It concludes that the worker suffers from severe traumatic brain injury. [ 141 ] I note these present conflicts on the evidence.

Instead of resolving the apparent conflicts, the Appeals Commission leaned heavily on the assessment of Dr. Grieve, which unduly relied on Dr. Pachet’s and Dr. Quickfall’s negative impressions of Mr. Zarooben, but which did not contradict the diagnosis in question. Therefore, in light of the evidence actually relied on, the complete record, and evidence of the unresolved nature of the ongoing symptoms, I find that the Commission’s conclusion that the “weight of objective evidence from various specialists who examined the Applicant does not support Dr.

Barrow’s assessments of his condition relating to his MTBI after July 27, 2018” cannot be reasonable. [ 142 ] In

summary and in the context of the factors set out in Vavilov for consideration and evaluation, namely: the Act , evidentiary rules, statutory

interpretation principles, the entirety of the evidence, and the potential impact on the worker, I respectfully find that the outcome is unreasonable.

The Decision’s weak evidentiary foundation led to two critical factors not being established: 1) Whether the worker objectively recovered from the compensable injury such that any ongoing symptoms are unrelated to it, and 2) Whether he was capable of pre-accident work as a truck driver (despite noting that his driver’s license was suspended by his doctor). [ 143 ] Further, while he may have recovered physically, which is what the panel concluded based on the record and Dr.

Barrow’s June 1, 2018 report of no functional limitations, it did not resolve the nexus between the apparent ongoing permanent cognitive impairment and the compensable injury. [ 144 ] Overall, the Decision lacks rationality and coherence with the purpose of the Act and WCB policies. The Act and policies provide that compensation is payable to a worker who suffers personal injury as a result of an accident that occurs at a time and place consistent with work and as a result of exposure to circumstances which create a risk of injury: Act , ss 1(1)(

a) and 24(1) and Policy 02- 01,

Part I,

Interpretations 1.0, 2.0 and 3.0. [ 145 ] Moreover, Policy 03-01 provides direction for accepting compensable injuries. In particular, the nature of the injury must be found to have a relationship with the compensable accident so that it is more likely than not that the work activity caused the injury. In the case where the relationship between the injury and the compensable accident is not obvious, the policy states that additional information is needed, especially medical information, to establish the relationship to the compensable accident.

If the information received on the file is not sufficient to adjudicate the claim, the WCB is responsible for gathering additional relevant evidence: Policy 03-01,

Part II, Application 1, Question 1; Policy 02-02,

Part I,

Interpretation 4.0. [ 146 ] The WCB or the Appeals Commission has the discretion to request a medical panel where it considers it appropriate and if, in the WCB or Appeals Commission’s opinion, a difference of medical opinion arises in the course of the evaluation of a claim, then it shall request a medical panel to deal with the matter: s 46.3(1) and (2) of the Act . [ 147 ] In this case, it is worth noting that the Appeals Commission Decision referenced as a guideline the WCB Business procedure 40.13: Conflict of Medical Opinion.

It concluded that there was no true conflict in medical opinion as the physicians providing the opposing opinions do not have similar qualifications or expertise with respect to the medical issue. That does not appear to be the case: Dr. Stelmaschuck and Dr. Grieve do not appear to be more qualified than Dr. Barrow; and, Dr. Zia-Ul Haque, whose opinion as a psychiatrist – that the symptoms were continuously present – conflicted with Dr.

Grieve’s document review and ultimate conclusion. [ 148 ] The Policy also directs that when an accident causes a pre-existing condition or disease to deteriorate or become symptomatic to the point where a worker is no longer able to perform all aspects of the job, the WCB is required to allow entitlement based on an aggravation factor: Policy 03-02,

Part I and

Interpretations 1 and 2;

Part II, Application 1, Questions 1 and 2. This was not evaluated as a possibility even though the Appeals Commission hearing is de novo . I note the

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