IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR TRIAL DIVISION ( GENERAL ) Citation : Hamilton v. Newfoundland and Labrador (Workplace Health, Safety and Compensation Review Division , 2010 NLTD(G) 191 Date : 201012 10 Docket : 200903T0128 BETWEEN: ALEXANDER HAMILTON APPLICANT AND: WORKPLACE HEALTH, SAFETY AND COMPENSATION REVIEW DIVISION FIRST RESPONDENT AND: WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION SECOND RESPONDENT ___________________________________________________________________ Before: The Honourable Mr. Justice Raymond P. Whalen ___________________________________________________________________ Place of Hearing: Gander, Newfoundland and Labrador Date(

s) of Hearing: June 15, 2010 On Judicial Review From: A decision of a Workplace Health, Safety and Compensation Review Division Commissioner, Alex Harrold LL.B. dated the 19th day of January, 2009.

Summary: The Court showed deference to the finding by the Review Commission that the Second Respondent’s offset of the Applicant’s CPP disability benefits from the Applicant’s Workers’ Compensation benefits was in accordance with and approved by statute. It was held that the First Respondent reasonably interpreted the evidence. Certiorari was not granted. Appearances:

Tony St. George Counsel for the Applicant Krista Gillam Counsel for the First Respondent Chris King Counsel for the Second Respondent Authorities Cited: CASES CONSIDERED: Newfoundland (Workers’ Compensation Commission) v. Ezekiel (1996), 1996 CanLII 11551 (NL SC) , 148 Nfld. & P.E.I.R. 169; Newfoundland (Workplace Health, Safety and Compensation Commission) v. Manning , [1999] N.J. No. 195 ; Newfoundland and Labrador (Workplace Health Safety and Compensation Commission) v. Mount Pearl (City) , 2008 NLCA 69 ; Dunsmuir v.

New Brunswick , 2008 SCC 9 (CanLII) , [2008] 1 S.C.R. 190; Newfoundland and Labrador Assn. of Public and Private Employees v. Newfoundland and Labrador (Treasury Board) , 2007 NLCA 48 ; Canada (Director of Investigation and Research, Competition Act ) v. Southam Inc. , 1997 CanLII 385 (SCC) , [1997] 1 S.C.R. 748; Law Society of New Brunswick v. Ryan , 2003 SCC 20 ; Newfoundland (Workplace Health, Safety & Compensation Commission) v. Burridge , 2001 NFCA 48 STATUTES CONSIDERED: Workplace Health, Safety and Compensation Act , 1990, R.S.N.L. 1990 c. W-11 REASONS FOR JUDGMENT Whalen, J. : INTRODUCTION [ 1 ] Mr.

Hamilton seeks an order in the nature of certiorari to quash a decision of the Workplace Health, Safety and Compensation Review Division. Review Commissioner Harrold upheld a decision of the Workplace Health, Safety Compensation Commission (“WHSCC”) to offset the Applicant’s Canada Pension Program (“CPP”) disability benefits from the Applicant’s entitlement to Extended Earnings Loss (“EEL”) benefits, pursuant to the Workplace Health, Safety and Compensation Act , 1990, R.S.N.L. 1990 c.

W-11 (the “Act” ), effective as of January 12, 2006. facts [ 2 ] The Applicant’s claim for benefits straddles three decades. [ 3 ] A claim was accepted by the WHSCC (then the “Workers’ Compensation Commission”) for a 1980 injury and effective January 24, 1992 Mr. Hamilton was approved by the WHSCC as qualifying for partial EEL benefits and Permanent Partial Disability benefits. It was held by the WHSCC’s internal review specialist that Mr. Hamilton was capable of part-time work and thus his claim “status” was established. [ 4 ] Mr.

Hamilton was approved for CPP benefits effective April, 1991. [ 5 ] While not related to the point now in issue, prior to January 1, 1993 WHSCC would offset CPP disability benefits against the worker’s EEL benefit on a gross from gross basis. Following the legislative change that occurred January 1, 1993, the offset was calculated on a net from net basis. Mr. Hamilton’s Worker’s Compensation benefits were first calculated according to the post January 1, 1993 regime. The position of WHSCC on this issue changed as a result of this Court’s decision in Newfoundland (Workers’ Compensation Commission) v.

Ezekiel (1996), 148 Nfld. & P.E.I.R. Mr. Hamilton was ultimately grandfathered under the method of calculation pre January 1, 1993, which was more financially beneficial. It was found that his entitlement to CPP benefits pre-dated the legislative changes. [ 6 ] In addition, a statutory minimum for worker’s compensation EEL benefits of $200 per week was contained within the legislation. The application of the CPP offset had the effect of reducing Mr. Hamilton’s compensation below this statutory minimum. Following, in part, a decision of Easton, J. ( [1997] N.J. No. 173 ) on a Certiorari application by Mr.

Hamilton, the position of WHSCC also changed on this issue. CPP benefits would not be offset so as to reduce the Applicant’s EEL benefit below the minimum. The worker’s benefits were recalculated. In the first instance and as a result of the Easton decision, a wrong was corrected. [ 7 ] Mr. Hamilton received Correspondence from the Second Respondent, dated 5 August 1997 explaining the recalculation. As the Correspondence forms the central theme of the Applicant’s argument, I believe it necessary to reproduce the full text of this Correspondence.

Highlighted is that part of the text which is most in issue: “5 August 1997

Mr. Alexander Hamilton Apt. 32D 99 Lincoln Road GRAND FALLS-WINDSOR, NF A2A 1P2 Dear Mr. Hamilton: RE: W.C.C. Claim No. 356241 Adjustment of Wage Loss Benefits Your claim has been reviewed again following the decision of Mr. Justice Easton of the Supreme Court of Newfoundland on your application to set aside the Chief Review Commissioner’s decision on your overpayment. A further review was also conducted to determine if you should have been grandfathered in when calculating the minimum benefits while you were receiving temporary earnings loss and rehabilitation benefits.

Following the review, it has been determined that you should have come under the grandfather clause and your benefits have been recalculated to reflect this. As well, the balance of the overpayment has been cancelled and you will be reimbursed for the refund amount. A detailed breakdown of the revised calculations is provided taking into consideration the overpayment established from April 1, 1994 to August 3, 1995 and the rate adjustment from August 4, 1995 to November 1, 1995.

On November 2, 1995, Extended Earnings Loss benefits came into effect and according to the Workers’ Compensation Commission Act the CPP benefit offset does not apply when receiving these E.E.L. benefits .

Temporary earnings loss and rehabilitation benefits overpayment established from April 1, 1994 to August 3, 1995 is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $7,412.58 Overpayment recovery amount to July 29, 1997 . . . . . . . . . . . . . . . . . . . . 2,682.16 Balance of overpayment (Has been cancelled) . . . . . . . . . . . . . . . . . . . . . .4,730.42 Balance owing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0 Revised calculation of weekly rate from August 4, 1995 to November 1, 1995; Adjusted weekly rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $193.80 Original weekly rate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .86.55 Rate adjustment amount . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .107.25 No. of weeks for this period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12.8 Amount owing you for this period . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,372.80

Summary

Refund of overpayment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$2,682.16 Adjusted weekly rate amount from August 2, to November 1, 1995 . . . . . 1,372.80 Total owing you is . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$4,054.96 A cheque for this amount will be issued to your shortly. Interest will be calculated and issued on a separate cheque on or about August 15, 1995. You may request a review of the foregoing through the: Workers’ Compensation Commission Review Division First Floor, Ashley Building 31 Peet Street St.

John’s, NL A1B 3W8 Sincerely, ____________________ Don Andrews Case Manager” [ 8 ] As can be seen, this 1997 letter was in the context of notifying Mr. Hamilton of the adjustment to his benefits resulting from the further review of his claim as directed by Easton, J. and the claim record of the Applicant shows that it was part of ongoing correspondence to the Applicant concerning recalculation of his claim. [ 9 ] In more recent years Mr. Hamilton sought a review of his “status”. Effective January 12, 2006 it was decided by the Second Respondent that Mr.

Hamilton was no longer capable of part-time employment, thus his entitlement to Workers’ Compensation benefits changed, he was granted full rather than partial EEL benefits, resulting in a claw-back, to some degree, of CPP benefits through operation of s. 81(3) of the Act . No evidence was presented by either party, nor does the claim record of the Applicant clearly outline the exact dollar impact on Mr. Hamilton’s worker’s compensation claims.

The Applicant was invited to file affidavit evidence explaining the financial impact of the offset, however nothing was filed with the Court to now address the offset that occurred in more definitive terms. The Applicant objected to the offset and sought review by the First Respondent. The decision of the First Respondent 09017 is now the subject of this Judicial Review. issue [ 10 ] In the Originating Application (Amended) Certiorari, the Applicant lists the following grounds: “1) the Review Commissioner erred in his

interpretation of how the Workplace Health, Safety and Compensation Act in its various amended forms and its Regulations should be applied to the Applicant’s case; 2) the Review Commissioner failed to properly consider previous judicial rulings of this Honourable Court, including, but not limited to, the Decision of Mister Justice Gordon G. Easton of this Honourable Court date 12 June 1997 (1997 No.

G.F. 6); 3) such further grounds as this Honourable Court may see as being fit and just.” [ 11 ] It was the position of the Applicant during the hearing of this matter that the first ground of review was without merit. It was acknowledged that the Review Commissioner had applied the correct statutory law to Mr. Hamilton’s appeal, thus this ground for review was abandoned.

The Respondents concurred. [ 12 ] The Applicant stated the remaining issue somewhat differently in his brief and in the legal argument presented during the hearing of this matter from that listed in the Originating Application. [ 13 ] The essence of his submissions is focused on the Correspondence wherein it is stated that the offset of CPP benefits would not

apply when receiving EEL benefits. The Applicant argues that in the circumstances of this case WHSCC confirmed by the Correspondence that CPP benefit offset did not apply to his claim. Also, there was no reference in the Correspondence to the impact that any change in his status as a claimant may have on his benefits.

It is argued that an ambiguity and uncertainty is therefore created by the Correspondence which should be resolved in the Applicant’s favour. [ 14 ] The Applicant submits that the First Respondent did not give due consideration to the ambiguity and confusion that has resulted because of the Correspondence, nor to the Applicant’s reliance upon the Correspondence. [ 15 ] In all, I take the Applicant’s position to mean that Review Commissioner Harrold’s

interpretation of the Correspondence was not reasonable, that the Court should not pay deference to that decision and hold that the offset should not occur. Decision Of The Review Commissioner On This Issue [ 16 ] There were a number of stated issues and arguments before Review Commissioner Harrold. He dealt with the Applicant’s position vis-à-vis the Correspondence as follows: “Additionally, the worker’s [sic] submits that the letter of August 1997, in his mind, entrenched the view that the Commission would not be offsetting his EEL.

The problem with this view is that the Commission has, by omitting certain information, not made it clear that if the worker’s status changed at some point in time, that then he would be subject to the offsetting provisions within the Act . While it may be less than adequate information provided by the Commission, I cannot find that the Commission intended to let the worker know that his status of not having CPP clawed-back was intended to be permanent based on that letter. Clearly, the letter references the worker’s status at that time.

Neither the Commission nor the worker anticipated the worker’s status changing in that letter. The Commission may have been able to avoid a controversy by simply indicating in the letter some reference to whether or not the worker’s status would change to full or total EEL benefits, that then he would be subject some future time to an offset of CPP. However, I find that the omission of that statement does not prejudice the worker. The worker did not challenge it because, as pointed out by his representative, he was satisfied with the benefits at the time.

Neither he nor the Commission anticipated a change in his status, but that does not mean that the Commission cannot alter the manner in which they apply certain sections of the Act when and if an individual’s status changes such that they are not caught by Sections of the Act that they were not caught by before. Consequently, I find no merit in the argument that the letter of August 1997 entrenched in any way, shape or form the fact that the worker’s CPP would ever be offset. That letter as indicated dealt with partial EEL, which was a different form of EEL than the worker is subject to now.

As indicated and referenced by Mr. Martin, the worker is subject to the law at the time of the change of status. In his case, his status changed after the new legislation was in place. Consequently, the worker’s EEL is subject to the offset by the CPP based on the relative legislation in place at the time of change of status.” [ 17 ] Review Commissioner Harrold’s decision was made under the authority of the Act ( ss. 26 , 26.1 and 28 ). The question he addressed was whether the decision of the Commission to offset CPP from Mr.

Hamilton’s benefits was in accordance with the Act , Regulations and stated policy of the Commission. On the narrow issue of the Correspondence, he found no merit in the argument that it entrenched a no offset protection for Mr. Hamilton. law Legislation [ 18 ] Section 19(4) reads: “The decision of the commission shall be upon the real merits and justice of the case and it is not bound to follow strict legal precedent.” [ 19 ] Sections 26 and 26.1 and 28.(1) reads: “26.

(1) Upon receiving an application under subsection 28(1) a review commissioner may review a decision of the commission to determine if the commission, in making that decision, acted in accordance with this Act , the regulations and policy established by the commission under subsection 5(1) as they apply to (

a) compensation benefits; (a.1) rehabilitation and return to work services and benefits;

(

b) an employer's assessment; (

c) the assignment of an employer to a particular class or group; (

d) an employer's merit or demerit rating; and (

e) the obligations of an employer and a worker under

Part VI.

(2) An order or decision of a review commissioner is final and conclusive and is not open to question or review in a court of law and proceedings by or before a review commissioner shall not be restrained by injunction, prohibition or other process or proceedings in a court of law or be removable by certiorari or otherwise in a court of law.” “26.1 A review commissioner shall be bound by this Act , the regulations and policy.” “28.

(1) A worker, dependent or an employer, either personally or through an agent acting on their behalf with written consent, may apply to the chief review commissioner for the review of a decision as referred to in subsection 26(1), within 30 days of receiving the written decision of the commission.” [ 20 ] Section 81(3) of the Act is a mandatory provision and reads: “81(3) A benefit relative to an injury that a worker is entitled to receive under the Canada Pension Plan or Quebec Pension Plan shall be considered as wages that the worker is capable of earning in calculating the compensation to be paid by the commission for loss of earning capacity.” Standard Of Review [ 21 ] It is trite law to say that the Standard of Review applied, results in differing degrees of deference to be shown administrative decision.

Many cases first require a determination of the proper Standard of Review, however, all counsel correctly acknowledge, I believe, that the applicable Standard of Review for the purpose of this Certiorari application is the test of reasonableness. In the case at bar the First Respondent was acting within his jurisdiction as created by statute. In issue is the Respondent’s

interpretation of the evidence. Without the necessity of going further, I accept that the test of reasonableness applies in these circumstances. See Newfoundland (Workplace Health, Safety and Compensation Commission) v. Manning , [1999] N.J. No. 195 and Newfoundland and Labrador (Workplace Health Safety and Compensation Commission) v. Mount Pearl (City) , 2008 NLCA 69 . [ 22 ] Here the Review Commissioner held that the Correspondence was intended to reference the worker’s status at that time and it did not establish that the Applicant’s CPP would never be offset against his Worker’s Compensation benefits.

Viewing the evidence before the Review Commissioner, was that a reasonable conclusion? [ 23 ] Our starting point is the Supreme Court of Canada definition of reasonableness set out in Dunsmuir v. New Brunswick , 2008 SCC 9 (CanLII) , [2008] 1 S.C.R. 190. [ 24 ] The Supreme Court re-formulated the standard of reasonableness in the context of judicial review, eliminated the standard of patent unreasonableness, while the standard of correctness remained unchanged.

At paragraph 47 of Dunsmuir the majority of the court wrote: “Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” [emphasis added] [ 25 ] In Newfoundland and Labrador Assn. of Public and Private Employees v.

Newfoundland and Labrador (Treasury Board) , 2007 NLCA 48 , it was stated: “The deference comprised in the reasonableness standard is comparable to that applied by the appellate courts in reviewing the factual findings of trial judges ..” [ 26 ] The Court of Appeal quoted from Canada (Director of Investigation and Research, Competition Act ) v. Southam Inc. , 1997 CanLII 385 (SCC) , [1997] 1 S.C.R. 748 as follows:

“… An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence.

An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.” [ 27 ] The Court of Appeal further quoted from Law Society of New Brunswick v. Ryan , 2003 SCC 20 : “This signals that the reasonableness standard requires a reviewing court to stay close to the reasons given by the tribunal and ‘look to see’ whether any of those reasons adequately support the decision. Curial deference involves respectful attention, though not submission, to those reasons … .” [ 28 ] In the Law Society of New Brunswick v.

Ryan the Court affirmed a standard of review on appeal from the Law Society of New Brunswick was reasonableness stating: “This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result.

Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.” Analysis [ 29 ] The Applicant has a long history with the Second Respondent regarding his claim for benefits and as Easton, J. stated, “It is [therefore] easy for one to go up blind alleys and pursue areas of concern that are not germane to the real issue now before this Court.” [ 30 ] The Review Commissioner was, inter alia, called to determine if the Second Respondent’s position to now offset the Applicant’s CPP benefits as against his EEL benefits was in accordance with the Act , Regulations and policy.

Within this mandate he did not interpreted the Correspondence as entrenching a right to the worker that offset of CPP would never occur, as was the position put forward by the Applicant. The Review Commissioner stated that the Correspondence, “dealt with partial EEL” … and “Clearly the letter references the worker’s status at that time.” [ 31 ] As I now understand the Applicant’s argument, he submits that the ambiguity or doubt raised by the Correspondence should have been resolved by the Review Commissioner in favour of the claimant.

The Applicant relies on the law arising from the Ezekiel decision and the provision of s. 19(4) of the Act that each case should be decided on its own (real) merits. [ 32 ] In Ezekiel Hickman, C.J. stated at paragraph 30: “In interpreting social welfare legislation such as the Workers’ Compensation Act, the Courts have held that where reasonable doubts or ambiguities arise, they are to be resolved in favour of the claimant.” Further at paragraph 34: “In my view it would be unfair in the extreme to permit the Commission to take advantage of any conflict in the legislation or regulation …” [ 33 ] In Newfoundland (Workplace Health, Safety & Compensation Commission) v.

Burridge , 2001 NFCA 48 Cameron, J.A., delivered the judgment of the Court and accepted with approval the rational of the Ezekiel decision. At paragraph 30 she wrote: “When considering the directive that each case be decided in accordance with real merits and justice, in Decision No. 764/91 (1991), 1991 CanLII 4741 (ON WSIAT) , 21 W.C.A.T.R. 348 (Ont.

W.C.A.T.), at § 52, Strachan (Vice-Chari), Rao, Meslin (Members), that Tribunal considered the equivalent provision in the Ontario legislation and concluded: To the extent that there is a fundamental guiding principle enunciated in the Workers’ Compensation Act for Ontario [R.S.O. 1980, c. 539], it is this: that each case shall be decided in accordance with real merits and justice. We interpret that phrase to mean that a case which would normally succeed on its merits shall not be defeated by reason of technical objection or strict application of legal theory.

In a contest between the social policy and technical argument, social policy should prevail.

In our view, that is one of the reasons for the inclusion of the real merits and justice guideline; it is a reason for providing in the Act that strict legal precedent need not be followed; it is a reason for attempting to avoid limitation periods in the compensation process; it is a reason for modifying the usual rules of evidence; and, it is a reason why the Board is endowed with a degree of administrative discretion.” [ 34 ] The Ezekiel decision confirms the proposition that in interpreting social welfare legislation, such as the Workplace Health, Safety and Compensation Act , courts have held that where reasonable doubts or ambiguities arise, they are to be resolved in favour of the claimant.

The Applicant argues that this legal principle should be given a broad

interpretation and apply to ambiguities now contained within the Correspondence. One should note that this argument was not put in the same manner to the Review Commissioner. [ 35 ] Nevertheless, the letter itself is not part of a legislative scheme. It was not an

interpretation by WHSCC of the legislative scheme such that it produces a confusion or inconsistency or undermines the effective operation of the legislation itself. I believe it would be a stretch to broaden the principles laid down in Ezekiel to cover the circumstances in this case. The Review Commissioner obviously relies on the text of Correspondence to put the content in context. He views reference to the no offset as connected to the worker’s status at that time [1997].

[ 36 ] Reading the Correspondence, the author explains the benefits that the worker is entitled to and provides a breakdown of the revised calculation resulting from and following the decision of Easton, J. The Applicant was given good news that a refund would be shortly forthcoming. In the context of the file record the Correspondence is one of a series of letters and ongoing communication with the worker relating to his claim and appeal. [ 37 ] The Applicant argues that the Correspondence entrenched the position that no CPP offset to his EEL benefits would occur at any point in the future.

However, when reviewing the claim history and the Easton, J. decision, the purpose of the Correspondence can only be reasonably viewed as informing the Applicant of the revised calculation of benefits. The Correspondence is captioned “Adjustment of Wage Loss Benefits”. The author references the Easton, J. decision and provides a detailed breakdown of the new calculation.

It is in this context that reference was made “… the CPP benefit offset does not apply when receiving these EEL benefits.” [ 38 ] The letter was silent on any future change in status of the claimant as it was not then a live issue between the parties. I see no obligation on the WHSCC to craft disclaimers to cover future changes in the status of the Applicant and how the legislation may then apply.

To suggest that this was required of the WHSCC, would be impracticable and create an undo onus on the WHSCC to cover all contingent developments throughout the claim. conclusion and disposition [ 39 ] As per the head note in Dunsmuir , The Supreme Court of Canada directs that a reviewing court examine: “… the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” The Review Commissioner considered the Applicant’s argument regarding the Correspondence. In not accepting that position, his reasoning is transparent. To a large degree, he believed the letter spoke for itself. In all, it is a reasonable finding on the evidence and an equally reasonable and defensible

interpretation of the Correspondence, such that deference should be shown to the finding of the Review Commissioner on this issue. The Application to set aside the First Respondent’s decision in this matter is dismissed with costs, on a party and party basis, to the First and Second Respondent. _____________________________ Raymond P. Whalen Justice