Maillet v Alberta (Appeals Commission for Alberta Workers' Compensation), 2022 ABKB 776

Court of King’s Bench of Alberta Citation: Maillet v Alberta (Appeals Commission for Alberta Workers' Compensation), 2022 ABKB 776 Date: 20221123 Docket: 2103 11825 Registry: Edmonton Between: Travis Maillet Plaintiff/Appellant - and - THE APPEALS COMMISSION FOR ALBERTA WORKERS’ COMPENSATION BOARD OF ALBERTA AND THE WORKERS’ COMPENSATION BOARD OF ALBERTA Defendants/Respondents _______________________________________________________ Decision of the Honourable Justice G.D.B. Kendell _______________________________________________________ Introduction [ 1 ] Mr.

Maillet appeals, or seeks judicial review of, a decision by the Appeals Commission for the Alberta Workers’ Compensation Board (the Appeals Commission) concluding that it did not have authority to grant the remedy he was seeking – a referral for a traumatic brain injury (TBI) assessment. Under the Workers’ Compensation Policy 03-01 (Policy 03-01), made pursuant to the Workers Compensation Act , RSA 2000, c W-15 (the WCA ), a referral is only possible if the relationship between the current symptoms and the compensable injury is unclear.

The Workers’ Compensation Board (WCB) had, several years before the request for a TBI

referral, held there was no relationship between Mr. Maillet’s neurological symptoms and the initial compensable injury; that decision was upheld by the Dispute Resolution and Decision Review Board (DRDRB) and further confirmed in two subsequent WCB decisions. Under the WCA , a worker must appeal a decision within one year, and Mr. Maillet did not appeal the DRDRB decision or either of the two subsequent WCB decisions. [ 2 ] As a result, the Appeals Commission concluded that it did not have authority to refer Mr.

Maillet to the TBI assessment because to do so, it would have to re-visit the un-appealed finding that there was no relationship between the neurological symptoms and the compensable injury. Issues [ 3 ] The issues, as set out by Mr. Maillet, are: 1. What is the standard of review? 2. Did the Appeals Commission err in the

interpretation and application of

Section 13.1, Section 78(1), and Section 46(3) of the WCA , Policy 03-01, and relevant provision and policies of the Workers’ Compensation Board? 3. Was the Appeals Commission procedurally unfair? and 4. Did the Appeals Commission fail to comply with the rules of natural justice by not giving proper weight to the medical evidence presented before them? [ 4 ] The WCB sets out the issues a little differently: 1. What is the standard of review? 2. Did the Appeals Commission meet the applicable standard of review? 3. Was the hearing procedurally fair? [ 5 ] The Appeals Commission sets out two issues: 1.

What is the applicable standard of review? 2. Did the Decision meet the standard? [ 6 ] In my view, the issues raised are more complex. There are several sub-issues about the applicable standard of review. The issues include: Issue 1: Standard of Review (

a) Is this a judicial review and/or statutory appeal? To answer this, one must ask whether the issues are questions of law or jurisdiction (statutory appeal) or questions of fact or mixed fact and law (judicial review). (

b) If there is a question of jurisdiction, the appellate standard of review applies, requiring an answer to whether a question of jurisdiction is a question of law. (

c) Are there any questions of law? (

i) Does an allegation of breach of procedural fairness raise a question of law? (ii) Does failing to apply appropriate weight to evidence constitute a breach of natural justice or raise a question of law? (iii) Does an allegation that the Appeals Commission misinterpreted and misapplied the WCA and the WCB Policies raise a question of law or question of mixed fact and law? (

d) If there are questions of fact and mixed fact and law, does the judicial review presumptive standard of reasonableness apply? Issue 2: Statutory Appeal (

e) If this is a statutory appeal on jurisdiction, was the Appeal Commission’s decision that it did not have jurisdiction correct? (

f) If this is a statutory appeal of the Appeal Commission’s

interpretation of the WCA and the WCB Policy, was the Decision correct? (

g) If breach of the duty to be fair is a question of law, was there any procedural unfairness? (

h) If the question of appropriate weight to evidence is a question of law, did the Appeals Commission correctly give sufficient weight to Mr. Maillet’s medical evidence?

Issue 3: Judicial Review (

i) If questions of the application of the WCA and the WCB Policy are questions of mixed fact and law, was the Appeal Commission’s decision reasonable? (

j) If the question of procedural fairness is a question of mixed fact and law, was there any procedural unfairness? (

k) If the question of appropriate weight to evidence is a question of mixed fact and law, did the Appeals Commission correctly give sufficient weight to Mr. Maillet’s medical evidence? [ 7 ] I note that there may be more than one issue and that one issue may be subject to appeal, while another is subject to judicial review. Facts [ 8 ] Mr. Maillet was injured in a workplace accident in March 2014, and the WCB accepted his claim for lumbar and thoracic strain, concussion, cervical strain/contusion, and sprain/labral tear of right shoulder (the compensable injuries).

In July 2014, the WCB concluded he had made a complete recovery from the cervical/back strain and concussion; the shoulder injury was the subject of subsequent adjudication, but was eventually resolved. [ 9 ] In July 2018, Mr. Maillet was suffering ongoing symptoms and underwent medical and diagnostic investigations. Further medical reports from Mr. Maillet’s doctor and physical therapist recommended a neurological assessment and/or referral to a TBI team to address neurological symptoms (trembling, numbness, and head pain), and Mr.

Maillet applied to WCB to re-open his claim. [ 10 ] On August 3, 2018, the WCB case manager concluded there was no relationship between his current problem and the original injury and refused to accept Mr. Maillet’s claim for recurrence of ongoing symptoms. The letter went on to offer return to work services that met his work restrictions caused by his shoulder injury. In that letter, Mr. Maillet was informed that if he disagreed with the decision, he could request a formal review within 12 months of any decision made. Mr.

Maillet challenged that decision by submission of a Resolution Submission Memo dated August 23, 2018; he did not appeal the decision or request a formal review.

The subsequent DRDRB review, dated January 28, 2019, primarily dealt with claims for temporary total disability and rehabilitation benefits, and it upheld the August 3, 2018 decision, concluding “I find that the medical evidence does not support this total disability stems from compensable reasons” and found the “customer service decision of August 3, 2018 to be reasonable.” [ 11 ] On September 12, 2019, the WCB again refused to re-open the file, reaffirming its August 3, 2018 decision. On December 10, 2019 the WCB again determined there was no evidence to support Mr.

Maillet’s assertion that his ongoing symptoms were the result of the compensable injuries. Further, the letter included copies of the August 3, 2018 decision, the DRDRB letter of January 28, 2019, and the September 12, 2019 letter. Both letters included what appears to be boiler plate language found in all the decision letters: Please note, you have the option of requesting a formal decision review through our dispute resolution and decision review process within 12 months of any decision made.

We have information on our website about this process or I can explain the process at any time, if you prefer. [ 12 ] Mr. Maillet did not request a formal review by the DRDRB of either of these two decisions. [ 13 ] On December 16, 2019, Mr. Maillet’s Appeal Advisor, in a “Resolution Submission Memo”, asked Mr.

Maillet’s WCB Case Manager, to “expedite an assessment to neurology or TBI [traumatic brain injury] team ... to establish the relationship to the compensable accident, as outlined in WCB Policy 03-01.” The Resolution Submission Memo further added that if the Case Manager did not agree with the Resolution Submission, it should then be referred to the DRDRB. By letter dated December 23, 2019, Mr. Maillet’s Case Manager refused to refer Mr. Maillet for a neurological/ TBI assessment immediately, stating that the compensable injuries were confirmed to have been resolved as of June 10, 2014.

The letter states: “You also have the option of requesting a formal decision review within 12 months of any decision made.” [ 14 ] On February 20, 2020, a Case Manager, in response to the Appeals Advisor’s February 10, 2020 request for a documented response to the Resolution Submission Memo, again denied the request, noting the August 3, 2018 decision to not re-open the claim, and the fact that the one-year time limit to appeal that decision had lapsed. He also indicated that the information submitted did not constitute new evidence sufficient to affect the outcome of the decision, citing Policy 01-08,

part 1,

interpretation 1.0. [ 15 ] That decision was reviewed and affirmed by a WCB supervisor on February 26, 2020, and the matter was then referred to the DRDRB. [ 16 ] By decision dated May 28, 2020, the DRDRB upheld the February 20, 2020 decision. Among the factors the DRDRB considered was the WCB’s August 3, 2018 refusal to re-open the claim because the current symptoms were not a re-occurrence of the compensable injury.

The DRDRB further noted that the Case Manager again denied the request on February 20, 2020 because they determined that the new information provided by the Appeal Advisor did not constitute new evidence and that there was “no further ongoing responsibility for Mr. Maillet’s compensable injuries and ongoing symptoms”. It concluded that a referral for TBI assessment would only be warranted if the relationship between Mr. Maillet’s current condition and the compensable injury was unclear. The DRDRB cited the WCB medical consultant’s opinion that there was “no continuation of Mr.

Maillet’s compensable injuries since the date of the accident” and that the compensable injuries recognized by the WCB “would have resolved by now”, and concluded it was clear that there was no relationship between the current symptoms and the injury. Therefore, the relationship was clear; there was no relationship, and no further assessment or treatment would be necessary. [ 17 ] On June 1, 2020, Mr. Maillet appealed the DRDRB decision to the Appeals Commission. The Appeals Commission released

its decision on March 12, 2021. The Appeals Commission Decision (Decision) [18] The Appeals Commission considered the adjudicative history of the file, and in particular the fact that the August 3, 2018decision was never appealed. It concluded it did not have authority to grant the requested referral, saying: [21.1] The panel notes that the WCB initially determined on August 3, 2018 that the worker’s ongoing symptoms were unrelated to thecompensable accident.

In letters dated December 10, 2019 and February 20, 2020, the WCB appears to reaffirm that determinationfollowing subsequent reviews of the worker’s claim file. [21.2] The panel understands the adjudicative decision regarding the compensability of the worker’s current symptoms took place onAugust 3, 2018 and that the deadline to appeal that decision has since lapsed (as noted by the WCB case manager in the February 20,2020 letter).

As that decision was not appealed, the panel does not have jurisdiction to address it. [21.3] To grant the remedy requested in this appeal, the panel would be required to make a finding that the evidence is insufficient todecide whether a relationship between the worker’s injury (or current symptoms) and compensable accident exists.

However, thedecisions noted above appear to adjudicate that very issue, when the WCB determined the available evidence did not support a causalrelationship existed between the worker’s current symptoms and his 2014 workplace accident. [21.4] The panel therefore, does not have the authority to provide a remedy that would reopen an adjudicative avenue that the worker isstatute barred from pursuing. Standard of Review [19] Mr. Maillet now applies to set aside the Decision. Mr. Maillet characterizes his application as either a statutory appeal orjudicial review.

The Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 held thatdifferent standards of review apply to a statutory appeal than to a judicial review. It is, therefore, essential to determine whether theissues raised by the application are subject to the appellate standard or the judicial review standard, or whether one standard applies tosome of the issues, while the other applies to the other issues. The standard of review of a statutory appeal [20]

Section 13.4 of the WCA provides that the Board and any person with a direct interest in an Appeals Commission decisionmay appeal the decision to the Court of King’s Bench, but only on questions of law or jurisdiction.

The Supreme Court of Canada inVavilov held, at para 37, that a statutory appeal is subject to the appellate standard of review set out in Housen v Nikolaisen, 2002 SCC33. [21] As to the first, a question of law, the Court in Housen held that the appellate standard is correctness (at para 8). [22] As to the second, a question of jurisdiction, the Court must assess whether a question of jurisdiction is a question of law forthe purposes of applying the Housen appellate standard. [23] The Court in Vavilov held, at para 65, that it would “cease to recognize jurisdictional questions as a distinct category attractingcorrectness review” for the purposes of judicial review, concluding that jurisdictional questions of whether a tribunal’s statutory grant ofpower gave it the authority to decide a particular matter can be determined under the reasonableness standard.

It noted (at para 68): Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore doesnot give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutoryscheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where thereasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory languagewill necessarily limit the number of reasonable

interpretations open to the decision maker — perhaps limiting it to one. [24] The Court did not, however, expressly address the issue of the standard of review for jurisdictional questions in a statutoryappeal. [25] The Supreme Court of Canada has said that ‘...questions of law are questions about what the correct legal test is; questions offact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whetherthe facts satisfy the legal tests. (Canada (Director of Investigation and Research) v.

Southam Inc, (SCC), [1997] 1SCR 748, at para. 35). [26] There are numerous cases describing questions of jurisdiction as questions of law: Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190, para. 50[1]; Toney v. Canada, 2013 FCA 217, [2015] 1 FCR 184 at para 5; Shinder v. Shinder, 2022 ONSC 181,at paras 22-23 and 28[2]; Patel v. Saskatchewan Health Authority, 2021 SKCA 115 at para 151; Catholic Children's Aid Society ofToronto v SKS, 2022 ONCA 228 at para 51; Iyamuremye v. Canada (Minister of Citizenship and Immigration), 2014 FC 494 at para20; Runkle v.

Alberta (Chief Firearms Officer), 2015 ABQB 216 at para 10; Chikonyora v. Chikonyora, 2013 ABCA 320 at para 13;Nammo v. TD Meloche Monnex Insurance Co, 2021 ABCA 245 at para 39. Some of these decisions are judicial review or statutoryappeals and some deal with the jurisdiction of courts. However, I see no meaningful distinction — questions of jurisdiction are questionsabout the correct legal test, not about factual events or the application of those facts to a legal test.

The question is whether thedeliberative body met the jurisdictional requirements to embark upon the inquiry: Newfoundland and Labrador (Attorney General) v.Uashaunnuat (Innu of Uashat and of Mani-Utenam), 2020 SCC 4 at 43; Canadian Assn. of Industrial, Mechanical and Allied

Workers, Local 14 v. Paccar of Canada Ltd, (SCC), [1989] 2 SCR 983 (Paccar) at para 35.[3] [27] I conclude that if any of the issues here raise a question of law or jurisdiction, the application in relation to those issues is astatutory appeal and the standard of review is correctness.

The standard of review in judicial review [28] The Supreme Court of Canada in Vavilov further indicated that where the statutory appeal is limited to specific questions, ashere questions of law and jurisdiction, judicial review is still available on other reviewable questions, and on those questions, thestandard of review will presumptively be reasonableness (Vavilov at para 52 and paras 16-17). The presumption is subject to thefollowing exceptions (at para 17): 1. The legislature expressly sets out the applicable standard of review; 2.

The rule of law requires that the standard of correctness be applied, for example: a. constitutional questions, b. general questions of law of central importance to the legal system as a whole, and c. questions related to the jurisdictional boundaries between two or more administrative bodies. [29] None of these exceptions apply here; the legislation does not set out a standard of review, there are no constitutional questionsor questions of law of central importance to the legal system, and there is no jurisdictional controversy between or among administrativebodies. [30] Therefore, if the issues raised here are questions of fact or mixed fact and law, the application in relation to those issues is anapplication for judicial review and the standard of review on those issues is reasonableness.

Do the issues raise questions of law and/or jurisdiction? [31] The Appeals Commission framed the issue before it as whether it had the authority to grant the referral for an assessment.

Itconcluded it did not have that authority, noting: • A referral is only possible under the WCB Policy 03-01 if the relationship between the current symptoms and the compensableinjury is unclear. • To conclude that a referral should have been granted, would require it to overrule the WCB decision that the available evidencedid not support a causal relationship between the worker’s current symptoms and his 2014 workplace accident. • The time for challenging that decision had passed. • Thus, it concluded it did not have jurisdiction to consider the evidence before it. [32] This issue is a question of jurisdiction and the standard of review on appeal is correctness.

I must determine whether theAppeals Commission correctly determined it did not have jurisdiction to grant the relief requested. [33] In the course of deciding whether it had jurisdiction, the Appeals Commission considered, interpreted, and applied the WCA,the WCB policies, and related case law. To the extent that these constitute issues separate from the question of jurisdiction, they arequestions of law.

The issue before the Appeals Commission was whether it could, as a matter of law, hear an issue that had already beenfully litigated and was not appealed (the ongoing symptoms were unrelated to the compensable injuries) in order to decide whether anassessment was required. This analysis did not require the Appeals Commission to apply the WCA, or the policy, or the case law to theevidence raised by Mr.

Maillet, only to interpret it for the purposes of determining its authority to proceed further. [34] The Applicant had one year from the August 3, 2018 decision to appeal the decision; he failed to do so. [35] S. 13.1(1) of the WCA provides as follows: Power of Appeals Commission 13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear anddetermine all matters and questions arising under this Act and the regulations in respect of (

a) appeals from decisions of a review body under

section 9.4, (

b) repealed 2020 c32 s3(8), (

c) appeals from determinations of the Board under section 21(3), and (

d) any other matters assigned to it under this or any other Act or the regulations under this or any other Act,and the

decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court. [ 36 ] Pursuant to s. 13.2(8) of the WCA , the Appeals Commission shall not hear an appeal from a DRDRB decision unless the appeal is commenced within the applicable limitation period. [ 37 ] In Martinson v.

Appeals Commission for the Alberta Workers’ Compensation , 2005 ABQB 545 , the court held that the Appeals Commission has the jurisdiction to determine whether the DRDRB has jurisdiction and to determine its jurisdiction by reference to same. [ 38 ] If an appeal is not brought in time, it is statute barred. [ 39 ] I accept the Respondent’s argument that where a WCB decision is not appealed to the DRDRB in time, the DRDRB will lose jurisdiction to review it, and where the DRDRB’s jurisdiction is lost, the WCB’s exclusive jurisdiction pursuant to s. 17(1) of the WCA to determine the matter will stand, and the decision will be final and conclusive and no longer subject to review.

Thus, where the DRDRB does not have jurisdiction to review a matter, the Appeals Commission will not have jurisdiction. [ 40 ] As the Appeals Commission did not have jurisdiction to grant the referral for assessment, they did not err in their conclusion that they did not have jurisdiction to consider the evidence before them. Do the issues raise questions of fact or mixed fact and law? [ 41 ] Mr.

Maillet argued that the Appeals Commission erred by • Failing to analyze the medical evidence and ignoring the Applicant’s submissions; • Failing to consider, interpret and apply the relevant legislation, policy and case law; • Failing to consider the intention of the WCA ; • Breaching the principles of natural justice and the duty of procedural fairness [ 42 ] The Appeals Commission refused to consider the merits of the appeal, and therefore there is no substantive decision to review.

The Appeals Commission did not consider whether the medical evidence supported the relief requested; it did not seek to interpret WCB Policy 03-01; and its

interpretation of the WCA was limited to assessing its jurisdiction. Therefore, there are no reasons to which the reasonableness standard can be applied. Conclusion [ 43 ] As the Appeals Commission did not err in their conclusion that they did not have jurisdiction, and as there are no issues raised for judicial review, the Application is dismissed. If the parties are unable to agree on costs, they may provide written submissions to me by January 15, 2023. Heard on the 16 th day of June 2022. Dated at the City of Edmonton, Alberta this 23 rd day of November 2022. G.D.B. Kendell J.C.Q.B.A. Appearances: Viqar Quraishi, Q.C. for the Plaintiff/Appellant Megan Schaub

for the Workers’ Compensation Board Jay Williamson for the Appeals Commission