2011 NBCA 47, 2011 NBCA 47

COURT OF APPEAL OF NEW BRUNSWICK 62-10-CA NEW BRUNSWICK POWER GENERATION CORPORATION APPELLANT CORPORATION DE PRODUCTION ÉNERGIE NOUVEAU-BRUNSWICK APPELANTE - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION and RICHARD DASHWOOD RESPONDENTS COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL et RICHARD DASHWOOD INTIMÉS New Brunswick Power Generation Corporation v. Workplace Health, Safety and Compensation Commission and Dashwood, 2011 NBCA 47 Corporation de production Énergie Nouveau- Brunswick c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et Dashwood, 2011 NBCA 47 CORAM: The Honourable Justice Turnbull The Honourable Justice Robertson The Honourable Justice Green CORAM : L’honorable juge Turnbull L’honorable juge Robertson L’honorable juge Green Appeal from a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission: February 6, 2010 Appel d’une décision du Tribunal d’appel de la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 6 février 2010 History of Case: Historique de la cause : Decision under appeal: Unreported Décision frappée d’appel : Inédite Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : S.O.

Appeal heard: October 13, 2010 Appel entendu : Le 13 octobre 2010 Judgment rendered: May 19, 2011 Jugement rendu : Le 19 mai 2011

Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green Concurred in by: The Honourable Justice Turnbull The Honourable Justice Robertson Souscrivent aux motifs : L’honorable juge Turnbull L’honorable juge Robertson Counsel at hearing: For the appellant: John G. Furey For the respondents: Matthew R. Letson, for Workplace Health, Safety and Compensation Commission Norman J. Bossé, Q.C., for Richard Dashwood Avocats à l’audience : Pour l’appelante : John G. Furey Pour les intimés : Matthew R.

Letson, pour la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail Norman J. Bossé, c.r., pour Richard Dashwood THE COURT The appeal is dismissed, the order of the Tribunal is upheld, and the appellant is ordered to pay costs of $2,500 to the respondent Richard Dashwood. LA COUR L’appel est rejeté, l’ordonnance du Tribunal est confirmée, et il est ordonné à l’appelante de payer des dépens de 2 500 $ à l’intimé Richard Dashwood. The judgment of the Court was delivered by GREEN J.A. I.

Introduction [ 1 ] Richard Dashwood is an employee of the New Brunswick Power Generation Corporation. In 2007, Mr. Dashwood filed a claim with the Workplace Health, Safety and Compensation Commission, alleging he was experiencing health problems brought about by his employment. His claim was initially approved, but later disallowed following a reconsideration by the Commission. Mr. Dashwood successfully appealed the Commission’s decision to the Appeals Tribunal. The appellant employer now comes before the Court seeking to have the February 26, 2010 decision of the Tribunal overturned.

For the reasons which follow, I would dismiss the appeal. II. Background [ 2 ] The respondent, Mr. Dashwood, began working for the appellant in the late 1980’s, and for much of his employment worked at an oil-fired generating station. He began experiencing respiratory-related health problems as early as 2005.

[ 3 ] In 2007, Mr. Dashwood filed a Report of Accident or Occupational Disease with the Commission. His claim for medical benefits was approved on January 10, 2008. The appellant then requested a written explanation from the Commission outlining the rationale used to determine that Mr. Dashwood’s symptoms were caused by exposure to Vanadium (a chemical element which, when inhaled, may cause respiratory problems). [ 4 ] In March 2008, the Commission forwarded Mr. Dashwood’s file to a Dr. Sidney Siu for a further opinion. The Tribunal’s decision identifies Dr.

Siu as “an independent expert in occupational and environmental medicine”. Dr. Siu’s findings were not in agreement with the determination that Mr. Dashwood’s medical problems were attributable to Vanadium exposure, and on June 13, 2008, the Commission advised Mr. Dashwood as follows: It is my determination that the preponderance of evidence weighs more heavily toward your not having experienced significant Vanadium exposure in the workplace, and toward your respiratory symptoms not being related to Vanadium exposure.

Thus, your claim for Vanadium exposure is denied. [Emphasis in original.] [ 5 ] On March 19, 2009, Mr. Dashwood appealed the above, and in a decision dated February 26, 2010, the Appeals Tribunal allowed his appeal. The Tribunal rejected the evidence contained in the expert report relied upon by the Commission, and further held that the test established by this Court in Page v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2006 NBCA 95 , 304 N.B.R. (2d) 128 , had not been met as the expert evidence proffered did not substantially affect the matter to be reconsidered. II.

Issues [ 6 ] The appellant sets out three issues: 1. Did the Appeals Tribunal err in failing to address the issue of whether Mr. Dashwood’s symptoms were caused by exposure to Vanadium in the workplace, or to apply the appropriate legal test of causation? 2. Did the Appeals Tribunal improperly reject the expert evidence of Dr. Siu? 3. Did the Appeals Tribunal err in failing to recognize the right of the Commission to reconsider its original decision of January 10, 2008? III. Law and Analysis A.

Causation [ 7 ] The appellant submits that the Tribunal failed to make a determination with respect to the issue of causation: did the injury arise out of and in the course of Mr. Dashwood’s employment? With respect, the Tribunal did make such a finding. In effect, by allowing the appeal of the reconsideration decision, it chose to accept the Commission’s initial decision of January 10, 2008, as being correct. [ 8 ] In The City of Saint John v.

The Workplace Health, Safety and Compensation Commission of New Brunswick and Rowe , 2008 NBCA 83 , 338 N.B.R. (2d) 213 , Robertson J.A. clearly and succinctly sets out the standard of review to be applied when considering decisions of the Appeals Tribunal:

I begin my analysis with a brief discussion of the relevant principles surrounding the standard of review to be applied to decisions of theAppeals Tribunal. For purposes of deciding this appeal, the significance of the Supreme Court’s recent decision in Dunsmuir v. NewBrunswick, [2008] S.C.J. No. 9 (QL), 2008 SCC 9, may be restricted to the reality that there are only two review standards: correctnessand reasonableness. The third review standard of patent unreasonableness has been eliminated and, hence, in cases where deference isowed, the review standard must be reasonableness.

Applying Dunsmuir, the jurisprudence of this Court is consistent with the followinggeneral framework. With respect to pure questions of law or jurisdiction, decisions of the Appeals Tribunals are owed no deference and,hence, correctness is the applicable review standard. When it comes to allegations of breaches of the fairness duty, the general rule is thatno deference is owed the tribunal’s ruling. The standard of review with respect to questions of fact remains “palpable and overriding”.This applies equally to findings of credibility.

Questions of mixed fact and law are owed deference on the review standard ofreasonableness. In my opinion, the Appeals Tribunal did not breach the fairness duty, nor did it commit a palpable and overriding error indeciding as it did. With respect to the relevant jurisprudence: see Gallant v. Workplace Health, Safety and Compensation Commission(N.B.) (2000), (NB CA), 228 N.B.R. (2d) 98 (C.A.); Keddy v. Workplace Health, Safety and CompensationCommission (N.B.) et al. (2002), 247 N.B.R. (2d) 284, [2002] N.B.J. No. 91 (QL), 2002 NBCA 24, D.W. v.

Workplace Health, Safetyand Compensation Commission (N.B.) et al. (2005), 288 N.B.R. (2d) 26, [2005] N.B.J. No. 282 (QL), 2005 NBCA 70, Fortis PropertiesCorp. et al. v. United Steelworkers of America, Local 1-306 et al. (2007), 312 N.B.R. (2d) 224, [2007] N.B.J. No. 68 (QL), 2007 NBCA16 at para. 6, Housen v. Nikolaisen, [2002] 2 S.C.R. 235, [2002] S.C.J. No. 31 (QL), 2002 SCC 33, H.L. v. Canada (Attorney General),[2005] 1 S.C.R. 401, [2005] S.C.J.

No. 24 (QL), 2005 SCC 25. [para. 4] [9] This Court has held that a finding of causation under New Brunswick’s workplace compensation scheme isessentially a question of fact: see Doiron v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2003 NBCA82, 265 N.B.R. (2d) 169. In the present case, therefore, we are to determine whether the Tribunal committed palpable and overridingerror in reaching its conclusions on causation. I see none. [10] Mr. Dashwood presented with a set of symptoms consistent with exposure to Vanadium. It is uncontested thatMr.

Dashwood was exposed to Vanadium in the course of his employment. The evidence before the Commission, and subsequently theAppeals Tribunal, established that, generally, the symptoms subside when a person is no longer being exposed to the substance. Mr.Dashwood’s did not. [11] The appellant argues that because Mr. Dashwood’s condition failed to improve, his symptoms were not causedby exposure to Vanadium. They maintain, therefore, his illness was not work related, and his claim was properly denied. In order forthis proposition to stand, the evidence must support only one “possible, reasonable conclusion”.

In the view of the Tribunal, this was notthe case, and I agree. [12] The evidentiary record is sufficient to support a finding of causation. For example, at page 5 of the Tribunal’sdecision, a report on Vanadium prepared by the U.S. Public Health Service is referenced, which states that “chronic effects are notreported with regularity” following exposure. The report does not state that such effects are never reported, but suggests that it is notcommon. Other references, including references to chronic bronchitis, can be found elsewhere in the record before the Tribunal. WhileDr.

Siu, who is relied upon by the appellant, in his report dated May 30, 2008, indicated the effects of exposure “should not last for yearsafter the exposure has ceased”, I note that the words “should not” do not have the same meaning as “cannot”. The test on appellatereview is not to determine whether or not this Court, using the same evidentiary record, would necessarily reach the same conclusion. Inmy opinion, the Tribunal’s conclusion falls within the “range of possible, acceptable outcomes which are defensible in respect of thefacts and law” (Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, para. 47). I see no palpable and overriding error. Applying the reasonableness standard, I would accord deference to the Tribunal, and decline to interfere with their decision. B. Evidence of Dr. Siu [13] The appellant makes the following assertions in its submission: Ultimately, the Appellant submits that the Appeals Tribunal refused to consider the evidence of Dr. Siu on the basis of an erroneousapplication of Section 22(1) of the WHSCC Act and the decision of this Court in Page, supra.

Put simply, the Appeals Tribunal commitsan error of law when it refuses to consider evidence put before it at the hearing, on the basis of a test which applies solely to thejurisdiction of the Commission to reconsider matters it has already decided. […] The Appellant submits that all of the evidence of Dr. Siu is relevant evidence which should have been considered by the

Commission in addressing issues of causation. [Emphasis added.] [ 14 ] The record discloses the Tribunal did consider the evidence of Dr. Siu, but found it lacking. The Tribunal’s decision makes reference to Dr. Siu’s evidence, quotes from it, and reaches the following conclusions: It is the finding of the Appeals Panel that Dr. Siu lacked the samplings for the period of time when the injury occurred, lacked test results for all areas of the workplace, and had not been given the opportunity to conduct a first-hand examination of the appellant.

The expert evidence comes to a different conclusion than the diagnoses of the physicians who did attend the appellant, but did not take into account all of the available information. The Appeals Panel finds that the test as stated in Page v. WHSCC has not been met as the expert evidence by Dr. Siu does not “substantially” affect the matter. [ 15 ] As pointed out by the Commission in its submission, “the Appeals Tribunal decision to reject Dr. Siu’s evidence as a result of what it considered deficiencies in that evidence, does not equate to a ‘refusal’ to consider Dr. Siu’s evidence”.

I can state it no more clearly than that. C. Reconsideration [ 16 ] The Tribunal was referred to Robertson J.A.’s decision in Page by the workers’ advocate representing Mr. Dashwood. The fact situation in Page differs from the present case in that it involved the Commission reconsidering a decision of the Appeals Tribunal. However, the Tribunal concluded that this Court’s directions in Page were applicable to Mr. Dashwood’s appeal: The workers’ advocate referred the Panel to the case of Page v. WHSCC .

The counsel for the employer argued that this case could be distinguished from the present appeal for the following reasons. In the Page case, the Commission had an independent expert witness, a decision of the Commission was appealed, and the Commission sought further evidence. Counsel argued that a difference exists between a decision of the Appeal’s Tribunal and a decision of the Commission. Further, he argued that, in the Page case, the Commission did not get “better new evidence”. The Appeals Panel finds that, notwithstanding a factual difference between the two cases, the test as stated in Page v.

WHSCC must be considered. In that case, Justice Robertson, writing on behalf of the Court, with Justice Turnbull partially dissenting, stated as follows: It is clear that the above subsection empowers the Commission to reconsider a matter previously decided by it if two conditions are met. There must be “new evidence” and the evidence must “substantially” affect the matter: see Higgins v. New Brunswick (Workplace Health, Safety and Compensation Commission) (1999), 90 A.C.W.S. (3d) 815 , [1999] N.B.J. No. 322 (C.A.) (QL) .

Thus, it is s. 22(1) that authorizes the Commission to reopen and reconsider a claim that was rejected on the ground that the injury was not work-related. […] […] [The] Page v. WHSCC case effectively creates a two-part test for any possibility of reconsideration by the Commission. In the present claim, the Panel must examine whether there is new evidence and whether the evidence “substantially” affects the matter. The new evidence, as stated by the Commission, and quoted above, entails Dr. Siu’s report.

Amounts of vanadium in the appellant’s blood and the “…length of your symptoms, and the continuation of your symptoms…” [page 335 of the Appeal Record] are not new as the Commission had this information prior to consulting Dr. Siu. Therefore, the only “new” factor is the opinion of Dr. Siu, as to how the results and effects of vanadium should be interpreted.

[…] In Page v. WHSCC , Justice Robertson writes: […] the Commission would be obligated to adduce “new evidence” before that

section could come into play. The only evidence adduced by the Commission was the opinion letter of its expert, Dr. Comper, who disagreed with the findings of another expert, Dr. Boulay, whose evidence had already been accepted by the Appeals tribunal in the earlier proceeding. In my view, this does not constitute new evidence within the meaning of s. 22. Otherwise, there would be no finality with respect to claims on which the Appeals Tribunal has already ruled. It is not terribly difficult to find one expert who is prepared to disagree with another.

This is not to deny that if the subsequent opinion is based, for example, on more recent scientific information that refutes earlier conclusions with respect to the effects of exposure to toxic substances, the Commission would be entitled to claim that this information falls within the category of “new evidence”. [ 17 ] The appellant argues the Tribunal erred in reaching the above conclusions, but again these constitute findings of fact by the Tribunal which attract the reasonableness test. As Richard J.A. stated in Losier v.

Workplace Health, Safety and Compensation Commission , 2008 NBCA 43 , 331 N.B.R. (2d) 237 : Whether or not evidence is new within the meaning of s. 22(1) is not a question of jurisdiction or law. …the applicable standard of review in this case is reasonableness.

This is a deferential standard that, according to Bastarache and LeBel JJ., implies “that courts will give due consideration to the determinations of decision makers”. […] [para. 18] [ 18 ] I am once more inclined to show deference to the Tribunal in the exercise of its mandate, given that I find no palpable and overriding error which would render its decision susceptible to reversal. IV. Conclusion [ 19 ] I would dismiss the appeal, uphold the order of the Tribunal, and order the appellant to pay costs of $2,500 to Mr. Dashwood. _____________________________ BRADLEY V. GREEN, J.A.

WE CONCUR: _______________________________ WALLACE S. TURNBULL, J.A.

_______________________________ J.T. ROBERTSON, J.A.