2012 NBCA 35, 2012 NBCA 35

COURT OF APPEAL OF NEW BRUNSWICK 68-11-CA J.D. IRVING, LIMITED (SUSSEX SAWMILL) APPELLANT J.D. IRVING, LIMITED (SCIERIE DE SUSSEX) APPELANTE - and - - et - WAYNE DOUTHWRIGHT and WORKPLACEHEALTH, SAFETY AND COMPENSATIONCOMMISSION RESPONDENTS WAYNE DOUTHWRIGHT et COMMISSION DELA SANTÉ, DE LA SÉCURITÉ ET DEL’INDEMNISATION DES ACCIDENTS AUTRAVAIL INTIMÉS J.D. Irving, Limited (Sussex Sawmill) v. WayneDouthwright and Workplace Health, Safety andCompensation Commission, 2012 NBCA 35 J.D. Irving, Limited (scierie de Sussex) c.

WayneDouthwright et Commission de la santé, de lasécurité et de l’indemnisation des accidents autravail, 2012 NBCA 35 CORAM: The Honourable Justice Turnbull The Honourable Justice Richard The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Richard L’honorable juge Green Appeal from a decision of the Appeals Tribunal ofthe Workplace Health, Safety and CompensationCommission: April 18, 2011 Appel d’une décision du Tribunal d’appel de laCommission de la santé, de la sécurité et del’indemnisation des accidents au travail : Le 18 avril 2011 History of case: Decision under appeal: 20115997 (Re), (NB WHSCC) Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : 20115997 (Re), (NB WHSCC) Procédures préliminaires ou accessoires : S.O.

Appeal heard: October 18, 2011 Appel entendu : Le 18 octobre 2011

Judgment rendered: April 5, 2012 Jugement re ndu : Le 5 avril 2012 Reasons for judgment: The Honourable Justice Richard Motifs de jugement : L’honorable juge Richard Concurred in by: The Honourable Justice Turnbull The Honourable Justice Green Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Green Counsel at hearing: For the appellant: Matthew R. Letson For the respondents: Daniel P.L. Leger and Joël Michaud, for Wayne Douthwright David M. Norman, Q.C., for Workplace Heath, Safety and Compensation Commission Avocats à l’audience : Pour l’appelante : Matthew R.

Letson Pour les intimés : Daniel P.L. Leger et Joël Michaud, pour Wayne Douthwright David M. Norman, c.r., pour la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail THE COURT The appeal is dismissed with costs of $3,000. LA COUR L’appel est rejeté avec dépens dont le montant est fixé à 3000 $. The judgment of the Court was delivered by RICHARD J.A. I. Introduction [1] Simply stated, the question raised in this appeal is whether retirement benefits paid under the Canada Pension Plan , R.S.C. 1985, c.

C-8, are to be deducted from compensation benefits paid to a worker under the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13. Pursuant to s . 38.11(9) of the Workers’

Compensation Act, the answer would have to be in the affirmative if such retirementbenefits are: (1) supplement benefits; (2) from an employment-related source; and (3)paid for the same period during which compensation is paid. While the WorkplaceHealth, Safety and Compensation Commission alleges these criteria are met, theAppeals Tribunal has consistently rejected this

interpretation and overturned theCommission’s decisions. In my view, the Appeals Tribunal has been correct all along(see 20064425 (Re), (NB WHSCC); 20085086 (Re), (NB WHSCC); 20095276 (Re), (NB WHSCC); 20105513(Re), (NB WHSCC); 20105574 (Re), (NBWHSCC); 20105575 (Re), ; 20105726 (Re), (NB WHSCC); and 20105740 (Re), (NB WHSCC)). II. Factual Background [2] The underlying facts of this case are simple anduncontested. Wayne Douthwright was injured on October 18, 2002, in the course ofhis employment with J.D. Irving Ltd. (Sussex Sawmill) (“JDI”).

His claim forbenefits under the Workers’ Compensation Act was accepted, and he eventuallybecame entitled to long-term disability benefits, which he started receiving on August24, 2009, in the amount of $766.00 per month. After turning 60 years of age, Mr.Douthwright opted to collect CPP retirement benefits at a diminished rate, as is hisright under the Canada Pension Plan. These benefits, in the amount of $547.07 permonth, began in September 2009.

In June 2010, the Commission informed Mr.Douthwright his long-term disability compensation benefits would be reduced by theamount of his retirement benefits, and that he would have to reimburse theCommission for overpayments. Mr. Douthwright appealed this decision to theAppeals Tribunal established under the Workplace Health, Safety and CompensationCommission Act, S.N.B. 1994, c. W-14, and his appeal was allowed. His employer,JDI, now appeals that decision to this Court. III.

The Appeal Tribunal’s Decision [3] In a unanimous decision reported as 20115997 (Re), (NB WHSCC), delivered on April 18, 2011, the Appeals Tribunalallowed Mr. Douthwright’s appeal against the Commission’s decision to reduce hismonthly long-term compensation by the amount received in CPP retirement benefits. The Appeals Tribunal decision centered on the meaning of s. 38.11(9), which reads asfollows:

38.11(9) Notwithstanding subsection (2),where a worker has not received remunerationfrom the employer or any incomereplacement or supplement benefit from theemployer or from an employment-relatedsource in respect of the injury or recurrence ofthe injury for a period of time after the injuryor recurrence of the injury that is equivalentto three working days and where the workercommences to receive compensation undersubsection (2), there shall be payable to theworker only that portion of compensationwhich, when combined with the amount ofany remuneration received by the workerfrom the employer or any incomereplacement or supplement benefit receivedby the worker from the employer or from anemployment-related source, does not exceedeighty-five per cent of the worker’s pre-accident net earnings calculated for the sameperiod of time as that during whichcompensation is paid. 38.11(9)Nonobstant le paragraphe (2),lorsqu’un travailleur n’a pas reçu derémunération de son employeur ou de revenude remplacement ou de prestation desupplément de son employeur ou d’unesource liée à son emploi relativement à lalésion ou à la réapparition de la lésionpendant une période qui suit la lésion ou laréapparition de la lésion qui correspond àtrois jours de travail et lorsque le travailleurcommence à recevoir l’indemnité prévue auparagraphe (2), le travailleur ne doit recevoirque la

partie de l’indemnité qui, combinée aumontant de toute rémunération reçue de sonemployeur ou de tout revenu deremplacement ou de toute prestation desupplément reçue de son employeur ou d’unesource liée à son emploi, ne dépasse pasquatre-vingt-cinq pour cent des gains netsavant l’accident du travailleur calculés pourla même période que celle pendant laquellel’indemnité est payée. [4] The Appeals Tribunal applied the modern principle ofstatutory

interpretation, recognized in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2 (QL), which requires one to readthe words of an enactment “in their entire context and in their grammatical andordinary sense harmoniously with the scheme of the Act, the object of the Act, andthe intention of Parliament” (para. 21).

Using this approach, the Appeals Tribunalconcluded that, throughout s. 38.11(9), the term “in respect of the injury orrecurrence of the injury” should qualify the terms “remuneration from the employeror any income replacement or supplement benefit from the employer or from anemployment-related source” (p. 8). In the Appeals Tribunal’s view, any otherinterpretation would result in making a worker a “‘funder’ of his/her own workers’compensation” (p. 8). Applying the decision of the Supreme Court in Clarke v.Clarke, (SCC), [1990] 2 S.C.R. 795, [1990] S.C.J.

No. 97 (QL), theAppeals Tribunal concluded that CPP retirement benefits “do not qualify as‘supplemental benefits’ as [these constitute] income earned prior to the compensableinjury and not ‘in respect of the injury or recurrence of the injury’” (p. 9). [5] The Appeals Tribunal turned to Commission Policy No. 21-215, which reads in part as follows: 2.0 Supplements to Compensation Injured workers may also receive remuneration from sources other than WorkSafeNB at the same time they are receiving compensationbenefits. The WC Act refers to this as receiving a supplement to compensation.

The WC Act requires WorkSafeNB to reduce loss of earnings benefits so that the combination of compensation benefits andremuneration received does not exceed 85% of the injured worker’s pre-accident net earnings.

Supplements to compensation include: • Any remuneration from the accident employer such as salary, wages, and overtime pay; • Any income replacement or supplement benefit from the accident employer such as vacation pay, sick leave benefits, and employer sponsored disability benefits; and/or • Any income replacement or supplement benefit from the employer and/or an employment-related source such as employer or union retirement pensions and Canada Pension Plan retirement benefits . [Emphasis added by the Appeals Tribunal . ] [p. 9] [6] The Appeals Tribunal explained that it is not bound to apply Commission policies that conflict with the Workers’ Compensation Act , and in particular noted the statement in D.W. v.

Workplace Health, Safety and Compensation Commission and Via Rail Canada Inc. , 2005 NBCA 70 , 288 N.B.R. (2d) 26 , where Robertson J.A. , for the Court , observed that “[i]t is trite law that Commission policies are non-binding and that it is the responsibility of the Appeals Tribunal, and ultimately this Court, to rule on the proper

interpretation of the Act ” (para. 4). On this basis, the Appeals Tribunal concluded that Policy 21-215 expands the meaning of s. 38.11(9) of the Act by including sources of income, such as CPP retirement benefits, that are not “in respect to the injury” (p. 10). In reaching this conclusion, the Appeals Tribunal noted the difference between the retirement benefits at issue in this case and the type of benefits, known as CPP disability benefits, contemplated in s. 38.91(1) of the Act , which provides the following: 38.91(1) Any compensation or benefits payable by the Commission under

section 38.11 or 38.2 to a worker shall be reduced by the same proportion of the amount the worker receives under the Canada Pension Plan with respect to the injury or recurrence of the injury, that the estimated loss of earnings bears to the average net earnings. 38.91(1)Toute indemnité ou prestation payable à un travailleur par la Commission en vertu de l’article 38.11 ou 38.2 doit être réduite dans la même proportion du montant que celui-ci reçoit du Régime de pensions du Canada relativement à la lésion ou réapparition de la lésion de la même façon que le montant estimatif de la perte de gains réduise le salaire moyen net. [7] In the end, the Appeals Tribunal concluded as follows: The proper

section to be applied by the Commission in respect to CPPR [Canada Pension Plan Retirement] benefits is subsection

38.91(1) of the Act . The deduction of the appellant’s retirement benefits is improper as the pension is paid for a period not related to the time of the compensable injury. To deduct the pension is contrary to law and would be patently unfair. As the Appeals Panel is bound to follow applicable law, the appeal is, therefore, allowed retroactive to September 1, 2009. [p. 11] IV. Issues [8] JDI raises three grounds of appeal: 1 . The Appeals Tribunal erred in law in its

interpretation and application of subsection 38.11(9) of the WC Act by concluding that Canada Pension Plan retirement benefits do not qualify as supplemental benefits; 2 . The Appeals Tribunal erred in law in determining that subsection 38.91(1) of the WC Act bars the deduction of Canada Pension Plan retirement benefits from loss of income benefits received by workers under the WC Act ; 3 .

The Appeals Tribunal erred in law in determining that Workplace Health Safety and Compensation Commission Policy No. 21- 215 […] contravenes the WC Act and is therefore inoperative in respect of its requirement that Canada Pension Plan retirement benefits be deducted from loss of income benefits received by workers under the WC Act. [9] The Commission does not take issue with any of the grounds of appeal. In particular, the Commission maintains the Appeals Tribunal was bound to follow the Commission’s Policy No. 21-215, which specifically states that CPP retirement benefits are a supplement to compensation.

Only Mr. Douthwright opposes the appeal, arguing the Appeals Tribunal did not err in its conclusion. V. Arguments Advanced on Appeal [10] It is common ground that the questions raised in this appeal are questions of law and that the applicable standard of review is correctness. I agree and therefore will say no more on this topic. [11] It is also common ground that the governing interpretive principles are those outlined in Rizzo & Rizzo Shoes , as set out in para. 4 above, and in s. 17 of the

Interpretation Act , R.S.N.B. 1973, c. I-13, which provides as follows:

17 Every Act and regulation and every provision thereof shall be deemed remedial, and shall receive such fair, large and liberal construction and

interpretation as best ensures the attainment of the object of the Act, regulation or provision. 17 Toute loi, tout règlement et toute disposition de ceux-ci sont réputés réparateurs et doivent faire l’objet de l’interprétation large, juste et libérale, la plus propre à assurer la réalisation de leurs objets. [12] While the parties may agree on the standard of review and on the governing interpretive principles, it is at this juncture they

part company. JDI and the Commission argue the Appeals Tribunal misinterpreted and misapplied those principles, while Mr. Douthwright says otherwise. In outlining their respective positions below, I may borrow liberally from their respective written submissions. A. The Appellant – J.D. Irving Ltd. (Sussex Sawmill) [13] JDI submits CPP retirement benefits are “supplement benefits” within the meaning of that term in s. 38.11(9) of the Workers’ Compensation Act . The scheme of s. 38.11, JDI argues, is to provide a baseline level of benefits at 85% of the worker’s lost earnings, from which certain deductions must be made in accordance with the

section . According to JDI, s. 38.11(9) is better understood when it is broken down into the following parts: (1) a qualifying section; (2) an entitlement section; and (3) an operation section. [14] JDI says the qualification

section consists of the following: 38.11(9) Notwithstanding subsection (2), where a worker has not received remuneration from the employer or any income replacement or supplement benefit from the employer or from an employment-related source in respect of the injury or recurrence of the injury that is equivalent to three working days … [15] According to JDI, s. 38.11(9) is triggered if, for a period of three or more days, a worker does not receive : (1) remuneration from the worker’s employer; (2) any income replacement or supplement benefit from the employer in respect to the injury or recurrence of the injury; or (3) any income replacement or supplement benefit from an employment-related source in respect of the injury or recurrence of the injury.

The compensation scheme envisaged by s. 38.11 makes it clear, the argument continues, that workers’ compensation benefits are secondary to any other illness or disability benefits otherwise available to the worker. Therefore, it is only once any illness or disability benefits otherwise available to the worker have been exhausted, and a further three days have passed , that the worker becomes eligible for compensation benefits. JDI submits it follows the “disqualifying income replacement or supplement benefit” must be in respect of the injury. Once

qualification is established, then, according to JDI, the remainder of s. 38.11(9) becomes effective. [16] Under JDI’s interpretative approach, the proposition that follows the qualification

section in s. 38.11(9) is also a type of qualification section. This proposition is captured in the words: “and where the worker commences to receive compensation under subsection (2).” Subsection (2) contains the provision that entitles the worker to compensation “ in an amount equal to eighty-five percent of the estimated loss of earnings.” JDI calls this proposition the entitlement

section of s. 38.11(9), and submits that the balance of s. 38.11(9) is therefore triggered once qualification is established by application of the qualification

section and the entitlement section. [17] In its dissection of s. 38.11(9), JDI calls the remainder of the provision the operative

section . This is the part of the provision that says what happens once a worker qualifies and becomes entitled to benefits.

It provides as follows: […] there shall be payable to the worker only that portion of compensation which, when combined with the amount of any remuneration received by the worker from the employer or any income replacement or supplement benefit received by the worker from the employer or from an employment-related source, does not exceed eighty-five percent of the worker’s pre-accident net earnings calculated for the same period of time as that during which compensation is paid. [18] JDI points to the similarity in language between the qualification and the operative sections of s. 38.11(9) and especially highlights the absence of the qualifier “in respect of the injury” in the operative section.

It follows, the argument goes, that while the income replacement or supplement benefit that might disqualify a worker from becoming entitled to workers’ compensation had to be monies available “in respect of the injury”, once the worker qualifies and becomes entitled, the calculation of the compensation payable to the worker must include any remuneration, income replacement or supplement benefit , whether or not it is received as a result of the incurred injury. [19] In its decision in the present case, the Appeals Tribunal read into the operative

section the qualifier “in respect of the injury or recurrence of the injury” ; words that are clearly not in the third

section of s. 38.11(9). JDI argues the Appeals Tribunal therefore erred in law. According to JDI, CPP retirement benefits constitute a supplement benefit from an employment-related source that must be deducted regardless of the fact these benefits are not triggered by any injury. JDI submits CPP retirement benefits so qualify because in order to receive them one must have been employed. Thus, they are “employment-related.” JDI points to dictionary

definitions of “benefit”, which includes “a public assistance program” , and

“supplement”, which means “ something added to complete a thing or make up a deficiency ” , and then argues employment-related CPP retirement benefits must therefore be a supplement benefit because they are part of a public assistance program and are “designed to supplement existing income, retirement savings plans or other legislated social assistance plans.” [20] JDI supports its position with a historical analysis of workers’ compensation legislation, including Committee studies that formed the basis for many of the current provisions in the Act .

According to JDI, the purpose of s. 38.11(9) is to allow “for the full integration of insurance benefits and social security benefits available to the injured worker with the Workers’ Compensation benefits received by that worker.” This ensures, so the argument goes, that an injured worker will not receive any greater income while injured than he or she would have received had he or she been working. [21] With regard to the second ground of appeal, JDI submits the Appeals Tribunal erred in concluding that s. 38.11(9) cannot be meant to apply to CPP retirement benefits because the legislation has made specific provision for CPP disability benefits but none for retirement benefits.

Recall that s. 38.91(1) specifically provides for a reduction of compensation “by the same proportion of the amount the worker receives under the Canada Pension Plan with respect to the injury or recurrence of the injury . ” JDI suggests the Appeals Tribunal effectively applied the maxim expressio unius est exclusio alterius in finding that the required deduction of CPP disability benefits precludes deduction of CPP retirement benefits , but submits this to have been an error because of the provisions of s. 38.11(9) that require deduction of supplement benefits. [22] As for the third ground of appeal, JDI says the Appeals Tribunal was bound by and required to apply Policy 21-215.

The Policy is said to have a “rule-based character” that was binding on the Appeals Tribunal and, therefore, required it to uphold the Commission’s decision to deduct CPP retirement benefits. At the very least, JDI argues, the Commission’s

interpretation of s. 38.11(9) was owed deference. B. The Workplace Health, Safety and Compensation Commission [23] The Commission’s arguments essentially echo those of JDI. The Commission argues s. 38.11(9) has two basic purposes: (1) to establish a worker’s

qualification to receive compensation; and (2) to impose a cap on compensation equalto 85% of the worker’s pre-accident net earnings. According to the Commission, thiscap is calculated by taking into account monies the worker may receive in the form ofremuneration from his employer, any income replacement payments from either theemployer or an employment-related source, or any supplement benefit from eitherthe employer or an employment-related source. In the Commission’s view, CPPretirement benefits fall in this last category, which is why they were included in Policy21-215.

The Commission points to s. 34(1) of the Workers’ Compensation Act andclaims to have “exclusive jurisdiction to examine into, hear and determine all mattersand questions arising under [Part I]” of the Act, which includes the determination ofcompensation and the establishment of policy interpreting its enabling legislation. C. Wayne Douthwright [24] Mr. Douthwright frames the appeal in somewhat differentterms than the other two parties.

According to him, the three grounds of appealessentially raise but one main question, which is whether CPP retirement benefits are“supplement benefits” within the meaning of that term in s. 38.11(9) of the Workers’Compensation Act. If so, he says the appeal then raises the secondary question ofhow CPP retirements benefits are “to be equitably apportioned for the benefit of theinjured worker and the employer fund.” [25] Mr. Douthwright invokes principles of statutoryinterpretation that the other parties do not consider.

Pointing to Rizzo & Rizzo Shoes,he emphasizes the following: It is a well established principle of statutory

interpretation that the legislature does not intend to produce absurd consequences.According to Côté, supra, an

interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremelyunreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of thelegislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to

interpretationswhich defeat the purpose of a statute or render some aspect of it pointless or futile (Sullivan, Construction of Statutes, supra, at p. 88). [para. 27] [26] Reference is also made to Canada (Attorney General) v.Consolidated Canadian Contractors Inc., (FCA), [1998] F.C.J. No.1394 (C.A.) (QL), in which Robertson J.A. (now with this Court) noted that “the‘golden rule’ which directs that the grammatical and ordinary sense of words neednot be adhered to if their meaning leads to a ‘repugnance’ or ‘inconsistency’ with therest of the instrument, or to an ‘absurdity’” (para. 27). [27] On the question of interpretive principles, Mr. Douthwright

adds that statutes must be “construed purpos ive ly in their entire context and in light of the scheme of the Act as a whole with a view to ascertaining the Legislature’s true intent” and that the words of a statute are to be read “harmoniously with the scheme of the Act , the object of the Act , and the intention of [the Legislature]”. In support, he invokes Nanaimo (City) v. Rascal Trucking Ltd. , 2000 SCC 13 , [2000] 1 S.C.R. 342 and Beaulieu v. Province of New Brunswick , 2003 NBCA 92 , 266 N.B.R. (2d) 338 . [28] Mr.

Douthwright’s argument then turns to the Canada Pension Plan , on the premise that, to properly interpret s. 38.11(9) of the Workers’ Compensation Act , it is important to understand the nature of CPP benefits. Mr. Douthwright notes that the Canada Pension Plan has been administered by the Federal Government since 1964, but that it is controlled by the provinces, which must approve all significant amendment s to the legislation. If there was to be full integration in the manner JDI and the Commission call for, then, according to Mr. Douthwright, mention of it should be made in both statutes.

However, there is no mention of this as a public policy objective. [29] There is, however, an exception with respect to CPP disability benefits. It is found in s. 80.1 of the Canada Pension Plan , which contemplates reaching agreements for apportionment of payments between CPP disability benefits and other benefits paid through a federal or provincial government program “ that provides for periodic payments to persons in respect of accidents, injuries, illnesses and occupational diseases ” , such as workers’ compensation benefits.

Such an agreement to apportion CPP disability and workers’ compensation benefits would avoid what is called “double-dipping” and would be fair to both the pension plan and the compensation regime. A policy decision to apportion CPP disability benefits and workers’ compensation benefits would ensure that one plan is not effectively used to fund the other. However, New Brunswick is not a party to any such agreement. Mr.

Douthwright emphasizes that there is no similar provision with respect to apportionment between CPP retirement benefits and other government regimes. [30] According to JDI, workers’ compensation benefits are secondary to any other illness or disability benefits available to the worker and these other benefits must be exhausted before a worker becomes entitled to compensation (i.e., the qualification section). The sources of these other benefits , according to JDI’s

interpretation, include “any income replacement or supplement benefit from […] an employment-related source in respect of the injury or recurrence of the injury.” Mr. Douthwright answers this argument by asking the following question: If CPP benefits of any kind were meant to be captured by this language, would not all injured employees be required to make application for and, if accepted, exhaust CPP disability benefits before becoming entitled to workers’ compensation? One would think so. Yet, there is no such pre-requisite.

[31] Mr. Douthwright also notes that the Workers’ Compensation Act makes specific reference to the CPP in matters of: (1) employee contribution (s. 38.11(12), s. 38.11(13), s. 38.2(4), s. 38.2 (4.3) , s. 38.52(2), s. 38.52(3), s. 38.6(3) and s. 38.6(4)); (2) guaranteed supplement following age 65 as compensation for no contribution to CPP while on long-term disability (s. 38.21(1)); (3) alternative to guaranteed supplement following age 65 as compensation for no contributions to CPP while on long-term disability (s. 38.22(14), s. 38.54(10) and s. 38.7(6)); (4) burial expenses (s. 38.5);

(5) CPP disability (s. 38.91(1), s. 38.91(1.01) and s. 38.91(1.1) ) ; and (6) upgrading of pensions (s. 48(2)). However, nowhere is there any mention of set-off of CPP retirement benefits in the manner JDI and the Commission propose. [32] In its arguments, JDI submits that the operative

section of s. 38.11(9) allows for the full integration of insurance benefits and social security benefits available to the injured worker with the workers’ compensation benefits. Mr. Douthwright replies that s. 38.11(9) relates to “employment related sources” not to “social security benefits.” He points to the decision of this Court in Roussel- Landry v.

Workplace Health, Safety and Compensation Commission , 2005 NBCA 83 , 289 N.B.R. (2d) 94 , in which Deschênes J.A. stated as follows: The obvious intent in subsection 38.11(9) is to make sure that the amount of compensation payable by the Commission for a given period of time, combined with all other remuneration received from the employer for the same period, does not exceed 85% of the worker's net earnings before his or her accident. [para. 12] [33] Mr. Douthwright emphasizes the Court’s qualification of all other remuneration as having been received “from the employer”.

So clearly, CPP retirement benefits would not fall into that category. It follows that, unless they can be characterized as being “any income replacement or supplement benefit […] from an employment-related source ” , these benefits could simply not have been contemplated in s. 38.11(9). On this point, Mr. Douthwright refers to Wilson J.’s reasons in Clarke. v. Clarke , supra , where, in the context of the division of marital property, the Court had to address the nature of pension benefits.

The Court held a pension was a marital asset and characterized it as analogous to a savings account as it consists of “funds comprising income diverted from the date on which it was earned” (para. 39). The pension in question in Clarke was one under the Canadian Forces Superannuation Act , R.S.C. 1970 c. C-9, which required mandatory contributions from the employee, which the employer then matched. Ruling as it did, the Court specifically held as follows: Pension benefits are not "income" in the traditional sense, i.e. payments for present work, nor are they income to be earned in the future.

They are benefits earned throughout the period of the pension. By the time of maturation the earning period is in the past. Hart J.A. stated it this way in Lawrence -- pensions "are in reality schemes for saving which divert present income to future use in times of peril or when the ability to earn income has passed" (p. 143). A pension is created by earlier savings which give rise to future benefits. In this sense it is like an insurance plan or any other savings scheme, structured or otherwise, which would be considered matrimonial property.

Thus, to characterize the pension benefits in this case as income is to disregard the nature of pensions and place form ahead of substance with resultant unfairness. [para. 60] [34] Mr. Douthwright continues his argument by highlighting that there is no universal requirement to commence drawing CPP retirement benefits until age 65 (when the case was argued the legislation was expected to change to provide for an even later age). A contributor to the CPP can elect to draw benefits before age 65, although the benefits are reduced by 0 .5% for every month before age 65.

Thus, a person who elects to draw CPP retirement benefits at age 60 will receive an amount that is reduced by 30%. Surely, if there was legislative intent to fully integrate CPP retirement with workers’ compensation, there would be a requirement for all recipients of workers’ compensation benefits to draw CPP retirement benefits.

Without such a requirement, the result creates unfairness and absurdity. [35] The effect of interpreting s. 38.11(9) as proposed in Policy 21- 215 would effectively discriminate between compensation-qualifying workers aged 60 to 65 on the basis of whether or not they have elected to collect CPP retirement benefits before age 65. Those who have not would lose nothing. But those who have will lose their CPP retirement benefits between the moment they elect and the time they reach age 65, when compensation payments end. In that interval, they will be directly contributing to the compensation fund.

This result, according to Mr. Douthwright, flies in the face of the intent of the workers compensation regime, which is that it be employer - funded. Mr. Douthwright rhetorically asks: where is the logic in a “large and liberal construction and

interpretation” of s. 38.11(9) that would impact only a sub-section of individuals? [36] Mr. Douthwright’s next argument focuses on the equities of the situation. The workers’ compensation regime is not one designed out of “employer benevolence or gratuity for employees.” It is a regime that modified the common law in a manner that employees gave up their right to pursue civil remedies and the potential for full indemnity in exchange for administrative ease and labour harmony associated with a system based on partial indemnity.

The argument is that if there is going to be a deviation from the well-articulated equities of the workers’ compensation regime, it should be one that is expressly contemplated by the Legislature. However, there is no indication that the Legislature ever intended that “ some injured employees would concede thousands of dollars in savings to the employer fund while other similarly injured employees would have their savings shielded.” As Mr.

Douthwright points out, “[i]t is the definition of inconsistent that [he] lives disabled on $766 per month (contributing $547.07 a month to the employer fund and diminishing the CPP he would have received at 65) only to learn that similar ly aged employees with vested interests in the same benefits can shield those savings.” In his view, this “represents an inequitable and absurd

interpretation of legislation that was intended for his benefit.”

[37] Mr. Douthwright says that if it were found that there are in fact two competing sensible

interpretations of s. 38.11(9), the one favouring him must prevail. After all, he says, the Commission has express statutory authority to propose legislative amendments to the Workers’ Compensation Act . [38] Alternatively, Mr.

Douthwright argues that if it were found that CPP retirement benefits are supplement benefits from an employment-related source, these benefits must also be considered in defining “pre-accident earnings.” As he puts it, if CPP retirements benefits come from an “employment-related source for the purpose of set-off, [they] must be an employmen t - related source for the purposes of determining the best representation of the pre-accident earnings of the worker.” He concludes this argument by stating that “if the legislature intended anything with respect to the ‘full-integration’ of CPP [retirement benefits], it intended apportionment between the relevant parties, not the injured employee’s gratuitous supplement to the employer fund.” VI.

Analysis [39] I have extensively set out the arguments made on appeal because credit should be given where credit is due. In this case, I give full credit to Mr. Douthwright for raising compelling arguments supporting the Appeal s Tribunal’s decision. I agree with most of his arguments. I especially agree with his position that the

interpretation both JDI and the Commission propose would produce absurd consequences, would be extremely unreasonable and inequitable, and is simply not consistent with the legislative intent. I also give credit to the Appeals Tribunal for consistently overturning the Commission when CPP retirement benefits have been deducted from workers’ compensation payments.

With respect, I consider wholly untenable the position put forth by JDI and supported by the Commission, which is reflected in the impugned portion of Policy 21-215. [40] Before turning to the first ground of appeal and determining whether CPP retirement benefits should be deducted from compensation payments under the Workers’ Compensation Act , I will address the other two grounds. [41] In the second ground of appeal, JDI alleges the Appeals Tribunal erred in determining that s. 38.91(1) of the Workers’ Compensation Act “bars” the deduction of CPP retirement benefits from workers’ compensation loss of income benefits received by workers.

This ground is without merit, because the Appeals Tribunal made no such determination. The Appeals Tribunal concluded the reach of Policy 21-215 “contradicts the intention of the legislation by attempting to include other sources of income [in particular CPP retirement benefits]” (p. 10). Having reached this conclusion, the Appeals Tribunal merely pointed out that s.

38.91(1) of the Workers’ Compensation Act provides for the deduction of CPPdisability benefits, and that this type of benefit is “for the same period during whichcompensation is paid.” Nowhere in the Appeals Tribunal’s decision does it state thats. 38.91(1) bars the deduction of CPP retirement benefits as alleged in JDI’s secondground of appeal.

The reference to s. 38.91(1) is merely pointing out the obvious: theAct makes specific provision for deduction of CPP disability benefits but makes noreference at all to deducting CPP retirement benefits. [42] Regarding the third ground of appeal, both JDI and theCommission submit the Appeals Tribunal was bound by and required to apply Policy21-215 and both argue that, in any event, the Appeals Tribunal erred in not givingdeference to the Commission’s

interpretation of s. 38.11(9). Both these propositionsblatantly ignore this Court’s unequivocal decisions to the contrary. [43] In D.W. v. New Brunswick, Robertson J.A. could not havemade it much clearer when he stated as follows: […] the law is clear that neither this Court nor the Appeals Tribunal is bound by Commission policies (see Green v. Workplace Health,Safety and Compensation Commission (N.B.) (1998), (NB CA), 201 N.B.R. (2d) 93 (C.A.) at para. 14; Melanson v.Workers' Compensation Board (N.B.) (1994), (NB CA), 146 N.B.R. (2d) 294 (C.A.); Dwyer v.

Workplace Health,Safety and Compensation Commission (N.B.) (1996), (NB CA), 179 N.B.R. (2d) 348 (C.A.) and Myles v. WorkplaceHealth, Safety and Compensation Commission (N.B.) (1996), (NB CA), 181 N.B.R. (2d) 183 (C.A.)). Ultimately, it isthe responsibility of this Court to interpret the provisions of the legislation in a manner that is in keeping with interpretative principles. [Emphasis added.] [para. 34] There is no room for confusion in that statement: the Appeals Tribunal is not boundby Commission policies.

The rationale for this should be self-evident: a policydirective cannot amend the Workers’ Compensation Act and the Appeals Tribunal isbound to apply the Act. This was made clear in VSL Canada Ltd. v. WorkplaceHealth, Safety and Compensation Commission and Duguay et al., 2011 NBCA 76, 376N.B.R. (2d) 292, where Drapeau C.J.N.B. pointed out as follows: Although there is nothing inherently objectionable about Commission policies, they must be formulated, interpreted and applied in amanner that is harmonious with the WC Act, as interpreted by this Court.

As Mitchell, J.A. observed in Dowling, an administrative bodysuch as the Commission lacks the mandate to alter the WC Act "by its own policy initiative". Commission policies that "advance the aimsof the legislation are permissible but the Commission cannot usurp the function of the Legislature by making policy which has the effectof altering the statute" (para. 7). Those observations fully accord with the views on point expressed in D.W. v.

Workplace Health, Safetyand Compensation Commission and Via Rail Canada Inc. at para. 25, per Robertson J.A. for the Court. [para. 48] [44] As for whether the Appeals Tribunal is required to apply astandard of review that affords deference to the Commission and to its Policy, onewould think that this, too, is answered by the statement in D.W. If the Appeals

Tribunal is not bound by Commission policies, it follows that it is not bound by theCommission’s application of an untenable policy. While it may ultimately be theresponsibility of this Court to interpret the provisions of the legislation, questions oflaw that come to this Court necessarily come through the Appeals Tribunal. The onlyexception would be the rare case when the Commission invokes s. 23(7) of theWorkplace Health, Safety and Compensation Commission Act in order to state a casefor the opinion of the Court.

The usual path, pursuant to which matters come beforethe Court of Appeal through the Appeals Tribunal, would be rendered redundant ifthe Appeals Tribunal did not get to pass judgment on the correctness of aCommission policy. In any event, the Workplace Health, Safety and CompensationCommission Act leaves no doubt on the matter. It gives the Appeals Tribunalextensive powers to render a decision upon the real merits of the case. Moreover theAppeals Tribunal must, upon application of any person that might be affected by thedecision, receive evidence and hear representations. [45] As this Court stated in Gray v.

Workplace Health, Safety andCompensation Commission (N.B.) (1996), (NB CA), 181 N.B.R.(2d) 25, [1996] N.B.J. No. 324 (C.A.) (QL), the Appeals Tribunal “has original powersto determine matters afresh” (para 5). The reason for this is self-evident: theCommission does not generally hold a hearing before making decisions that affectworkers or employers. This case is a prime example. The Commission learned Mr.Douthwright was receiving CPP retirement benefits, applied Policy 21-215, andsubtracted those benefits from the compensation being paid to him. In the letterinforming him of this decision, Mr.

Douthwright is told he can appeal to the AppealsTribunal. Only then is he entitled to call evidence and make representations, if hewishes. Considering the previous decisions of the Appeals Tribunal on the deductionof CPP retirement benefits, it is not surprising that Mr. Douthwright chose to proceedbefore the Appeals Tribunal by what was called a “paper review”. The fact there wasno actual hearing is of no moment.

In my view, it would simply defy logic, not tomention it would also be contrary to the express provision of s. 21(9) of theWorkplace Health, Safety and Compensation Commission Act, if the AppealsTribunal was not required to determine the matter “upon the real merits of the case”and was instead obliged to consider a matter on any standard less than one ofcorrectness. [46] In support of their positions, both JDI and the Commissioninvoke Sciberras v. Workers’ Compensation Board (Man.), 2011 MBCA 30, [2011]M.J. No. 109 (QL). In that case, the Manitoba Court of Appeal, citing its earlierdecision of Winnipeg (City) v.

Manitoba (Workers’ Compensation Board), (MB CA), [1997] M.J. No. 645 (C.A.) (QL), upheld the Board’s right “todetermine as a matter of policy the criteria to be applied in determining whether thedefined circumstances [for providing compensation] have been met” (para. 61). Sciberras involved an apprentice ironworker who suffered a compensable injury thatresulted in permanent disability and who applied for an increase of his benefits based

on loss of probable earning capacity. Relying on a policy, the Workers Compensation Board of Manitoba rejected the application on the grounds that the claimant was not an apprentice in a trade or occupation within the scope of a particular provision of the Workers Compensation Act , C.C.S.M. c. W200. An appeal to the Board’s Appeal Commission was dismissed. However, that decision was set aside on judicial review on the grounds that the policy upon which the decisions of the Board and Commission were based “goes farther […] than the Legislature contemplated or allowed” (para. 24).

On appeal to the Manitoba Court of Appeal, the administrative decisions were restored. The Court stated that the Board’s policies should be subject to deference and that a reasonableness standard should apply on the issue of whether a policy is inconsistent with the Act . The reason for this is that the Board has “exclusive jurisdiction to determine the loss of earning capacity resulting from an accident [and, thus] the Policy relating to compensation and how the loss of earning capacity of apprentices is to be determined are subject to the privative clause” (para. 82). [47] Sciberras has no application here.

In that case, the Manitoba Court expressly stated that “if the Policy is inconsistent with the Act , it cannot be a valid policy” (para. 86), and that is the very issue that arises in the present case. Even if deference were owed in this case, one would be required to ask to whom it was owed.

Section 34 of the Workers’ Compensation Act contains a privative clause that gives certain exclusive jurisdiction to the Commission, but the final authority as to the Commission’s decisions rests with the Appeals Tribunal. Section 21(1) of the Workplace Health, Safety and Compensation Commission Act leaves no ambiguity in this regard. It provides a final right of appeal to the Appeals Tribunal, notwithstanding any provision of the Workers’ Compensation Act .

Moreover, s. 21(11) provides as follows: 21(11)Any decision, determination, direction, declaration, order, interim order or ruling of, or any act or thing done by a panel of the Appeals Tribunal shall be a decision, determination, direction, declaration, order, interim order or ruling of, or

an act or thing done by the Commission. 21(11)Toute décision, directive, déclaration, ordonnance, ordonnance provisoire, ordre ou tout jugement d’un comité du Tribunal d’appel ou tout acte ou toute chose qu’il a accompli, constitue une décision, directive, déclaration, ordonnance, ordonnance provisoire ou un jugement de la Commission, ou un acte ou une chose qu’elle a accompli. [48] This provision highlights the absurdity of the Commission’s position in this appeal.

As the final administrative determination of the issue, the decision of the Appeals Tribunal is the “decision [of] the Commission”, yet the Commission supports the Appellant’s position. The Commission is arguing against its own decision.

[49] In

summary, the law in this Province is clear. The Appeals Tribunal is the final administrative decision-maker on the question of the proper remuneration to be paid to Mr. Douthwright and it is not bound by Commission policies. This is determinative of the third ground of appeal. [50] All this brings us to the first ground of appeal: whether the Appeals Tribunal erred in ruling that Mr. Douthwright’s CPP retirement benefits should not be deducted from his compensation benefits.

Note that I frame the question broader than does JDI, which asserts that the Tribunal erred in concluding that CPP retirement benefits do not qualify as supplement benefits. The reason for this is that the characterization of impugned benefits as a supplement benefit is only one of the criteria for deduction under s. 38.11(9) of the Workers’ Compensation Act . [51] This Court has already addressed the intent and scope of s. 38.11(9).

In Roussel-Landry , a worker was owed vacation time and statutory holiday pay that had accumulated under the scheme of a collective agreement during the period the worker was absent from work as a result of a workplace injury and while she was receiving compensation benefits. The worker refused to accept her employers’ payment until after she had returned to work. The question before the Appeals Tribunal, and later before this Court, was whether this amount could nevertheless be deducted from compensation benefits. Both answered in the affirmative.

The Appeals Tribunal ruled as follows: In this case, the appellant 'received' from her employer an employment-related amount for the same period for which she was receiving compensation from the Commission. The fact that she did not accept payment before she returned to work does not prevent subsection 38.11(9) from applying because the provision does not impose a time limit during which the amount should or should not be paid.

All that is required is that the amount be paid, that it be an employment-related benefit and that it be for the same period during which compensation is paid. [Emphasis added.] [para. 7] [52] This decision was upheld on the correctness standard.

Giving the Court’s reasons, Deschênes J.A. noted as follows: In short, the Appeals Tribunal was right in ruling that subsection 38.11(9) [TRANSLATION] "does not impose a time limit during which the amount [i.e., the remuneration] should or should not be paid" and that the conditions that must be met to allow the Commission's compensation or benefits to be reduced are the following, namely, that [TRANSLATION] "[remuneration from the employer] be paid ... and that it be for the same period during which compensation is paid ". [Emphasis added.] [para. 13] [53] In reaching that conclusion, this Court stipulated that “[t]he obvious intent in subsection 38.11(9) is to make sure that the amount of compensation payable by the Commission for a given period of time […] does not exceed 85% of the

worker’s net earnings before his or her accident” (para. 12) . ( E mphasis added . ) [54] Although in Roussel-Landry the payment in question was remuneration from the employer, it could well have been income replacement or supplement benefits. The criterion that the payments be “for the same period of time as that during which compensation is paid” is one that is independently set out in s. 38.11(9).

It relates to either remuneration from the employer or to income replacement or supplement benefits from either the employer or an employment- related source. [55] Applying Roussel-Landry , the framework for determining whether amounts are to be deducted under s. 38.11(9) of the Act in order to achieve the section’s intent that the amounts the worker receives do not exceed 85% of the worker’s net earnings before the accident is the following: 1. Is the amount sought to be deducted either:

a) remuneration received from the employer;

b) income replacement received from either the employer or an employment- related source; or,

c) a supplement benefit received from either the employer or an employment- related source ? AND , 2. Was the amount received paid for the same period during which compensation is paid? [56] With respect to CPP retirement benefits, I am of the view that both of these questions would be answered in the negative.

The reason for this is found in the Supreme Court of Canada’s decision in Clarke . [57] Although Clarke was a case involving a pension under the Canadian Forces Superannuation Act that required the Court to determine whether pension payments should be considered marital assets, the Court’s analysis regarding the nature of pension benefits has broader application. The Supreme Court determined that “[p]ension benefits are not ‘income’ in the traditional sense, i.e. payments for present work, nor are they income to be earned in the future. They are

benefits earned throughout the period of the pension […] ‘ […] in reality schemes for saving which divert present income to future use in times of peril or when the ability to earn income has passed’ […]. A pension is created by earlier savings which give rise to future benefits. In this sense it is like an insurance plan or any other savings scheme, structured or otherwise […]” (para. 60). [58] Therein lies the whole answer to this appeal. A pension is like a savings plan.

It is not a supplement, which, according to the definition JDI put forth is “[s]omething added to complete a thing, make up for a deficiency, or extend or strengthen the whole.” CPP retirement benefits are available at age 60 , independent of whether one receives compensation or not and independent of whether one stops working or not.

An individual who qualifies can opt for early benefits at a reduced rate, not to make up for a deficiency in his or her salary, but as of right, whether the salary continues in its entirety, as is the case if the individual continues to work, or not. [59] There is no support for the proposition that when one considers the ordinary meaning of “supplement benefit” in the context of the legislation and the scheme of the Workers’ Compensation Act , one would conclude the Legislature intended for injured workers to deplete their savings before qualifying for compensation.

Our Court has already said in Roussel-Landry that “[t]he obvious intent in subsection 38.11(9) is to make sure that the amount of compensation payable by the Commission for a given period of time […] does not exceed 85% of the worker’s net earnings before his or her accident” (para. 12) (emphasis added) . The intent is to put the worker in the position that the only loss resulting from a workplace accident will be 15% of the worker’s net earnings.

It is not to force a worker to access his or her savings before becoming entitled to the 85% balance. [60] Moreover, the Supreme Court makes it clear that pension benefits are not monies received for the same period during which compensation is paid. A pension is earned before the benefits are drawn. Pension benefits do not constitute income received “for” the same period during which compensation is paid.

They are benefits deriving from a previous period of time when the worker and the employer invested in the pension. [61] JDI and the Commission simply ignored the requirement identified in Roussel-Landry that the amount sought to be deducted has been paid for the same period during which compensation is paid. According to their

interpretation, one would look not at when the income was earned, but rather at when it was paid. This is illustrated by the position they take regarding registered retirement savings plans. In 20105513 (Re) , the worker had accumulated an RRSP by making contributions that were then matched by the employer. The Commission

took the view that the portion contributed by the employer was remuneration received from the employer and it mattered not that it had been earned before the worker was injured. If he drew on the RRSP while receiving compensation, the employer’s portion would have to be deducted. With respect, this position is absurd and flies in the face of the Supreme Court’s logic in Clarke . The RRSP belongs to the worker and the employer’s contributions were part of remuneration for past work.

It defies logic to think that when a worker draws on those funds that are already his or her s , compensation benefits that are meant to provide him or her with 85% pre- accident net earnings will be correspondingly reduced. Fortunately, the Appeals Tribunal reversed the Commission’s decision in 20105513 (Re) .

Nevertheless, on this appeal, the Commission argued the Appeals Tribunal had erred. [62] I simply cannot conceive how it might have been the intent of the Legislature in enacting s. 38.11(9) to reduce compensation payments when a worker draws on his or her savings, whether it is in the form of money in a savings account, funds held in an RRSP, a vested pension or CPP retirement benefits.

None of any such monies drawn would be meant to supplement the 85% of the pre-accident net earnings the worker is entitled to receive under the Workers’ Compensation Act , and none would constitute monies received for the same period during which compensation is paid. [63] In my view, the Appeals Tribunal was correct to hold that an injured worker should not become “a ‘funder ’ of his/her own workers’ compensation.” This is exactly what would have happened to Mr. Douthwright if the Commission’s decision had not been overturned.

Such an outcome would be contrary to the scheme of the Workers’ Compensation Act pursuant to which benefits are “employer funded.” This construction of s. 38.11(9) does not require any straying from the principles of statutory

interpretation outlined in Rizzo & Rizzo Shoes . In fact, it is the very application of those principles that inescapably leads to this construction. [64] Moreover, this construction of s. 38.11(9) avoids the absurd consequences and the unreasonable or inequitable result that would otherwise prevail.

It is inconceivable that the Legislature intended that one injured worker who elects to collect CPP retirements benefits early, at a reduced rate, would see his or her compensation benefits reduced, while another, in the exact same circumstances, who elects to collect those benefits at the full rate at age 65, would lose nothing. Surely, if there were to be full integration of social benefits in the manner JDI and the Commission call for, there would be a universal requirement for injured workers to opt for early retirement benefits under the Canada Pension Plan .

Yet, no such requirement is found anywhere in the Workers’ Compensation Act . On the other hand, provision is made for CPP disability benefits. This is not surprising because these benefits are not retirement benefits and, when an injured worker qualifies, that

worker is paid for the same period during which compensation is paid. Therefore, the Appeals Tribunal’s

interpretation of s. 38.11(9) is congruous with the provision made for CPP disability benefits. [65] I am in full agreement with Mr. Douthwright’s arguments on the equities of the situation as summarized in paragraph 36 of this decision .

He is quite justified to point out that the workers’ compensation regime is not one designed out of “employer benevolence or gratuity for employees.” As he says, it is a regime that modified the common law in a manner that employees gave up their right to pursue civil remedies and the potential for full indemnity “in exchange for administrative ease and labour harmony associated with a system based on partial indemnity.” I agree with him that if there is to be a deviation from the well- articulated equities of the workers’ compensation regime, it should be one that is expressly stated by the Legislature.

He is correct in stating that there is no indication that the Legislature ever intended that some injured employees would give up thousands of dollars in savings to the employer fund while other similarly injured employees would have their savings shielded. As he points out, it is not logical that he lives disabled on $766 per month, contributing his CPP retirement benefits of $547.07 to the compensation fund and at the same time diminishing the CPP he would have received at 65 had he simply opted not to take the retirement benefits early.

All this while similar ly aged workers with vested interests in the same benefits can shield those savings. That this would result in “an inequitable and absurd

interpretation of legislation that was intended for his benefit” is an understatement.

Add to this that the Commission wants to reduce his compensation benefits by the amount of his CPP retirement benefits , but refuses to consider those benefits as part of his pre-accident earning s , and the proposition certainly transcends the border into the realm of the ridiculous. [66] Even if I could have somehow been convinced that CPP retirement benefits were a “supplement benefit” and that they were amounts paid for the same period during which compensation is paid, I would not necessarily agree that CPP retirement benefits are from an “employment-related source” within the meaning of that term in s. 38.11(9).

Considering my disposition of the appeal on the basis that they are neither a supplement benefit nor paid for the same period during which compensation is paid, I need not pursue that analysis any further. [67] In my view, the Appeals Tribunal was quite correct i n its determination that the compensation payable to Mr. Douthwright under the Workers’ Compensation Act is unaffected by the CPP retirement benefits he receives. VII. Disposition

[68] For these reasons, I would dismiss the appeal. At the hearing, counsel for Mr. Douthwright informed us he was not seeking any extraordinary amount of costs. In light of this, I would award Mr. Douthwright costs in the amount of $3,000.00. Considering the Commission’s position on this appeal, I would make both the Commission and JDI responsible to pay these costs. ____________________________ J.C. MARC RICHARD, J.A. WE CONCUR: ________________________________ WALLACE S. TURNBULL, J.A. ________________________________ BRADLEY V. GREEN, J.A.