Marc Heney Applicant - v. -, 2023 ABKB 256

Court of King’s Bench of Alberta Citation: Heney v Alberta (Workers’ Compensation Board, Appeals Commission), 2023 ABKB 256 Date: 20230428 Docket: 2203 08332 Registry: Edmonton Between: Marc Heney Applicant - and - The Appeals Commission for Alberta and Workers’ Compensation Board Respondents _______________________________________________________ Memorandum of Decision of the Honourable Justice W.P. Sullivan _______________________________________________________ [ 1 ] This is an application for judicial review of a decision of the Appeals Commission for Alberta Workers’ Compensation.

Marc Heney, the Applicant, seeks review of a decision of the Appeals Commission for Alberta Workers’ Compensation (the “Appeals Commission”) upholding a decision of the Dispute Resolution and Decision Review Body (the “DRDRB”). Background [ 2 ] Mr. Heney suffered an injury to his back on June 25, 2013, during the course of his employment. The Workers’

Compensation Board of Alberta (the “WCB”) accepted responsibility for this injury and set the rate for compensation and disability status. Mr. Heney was determined to be totally unemployable and was entitled to receive a Zero Based Earnings Loss Payment (the “ELP”) until the age of 65. This would be the equivalent of 90% of his net monthly earnings until the age of 65. [ 3 ] Mr. Heney applied pursuant to Policy 04-04

Part II, Application 8 (the “Policy”) to have these payments commuted to a lump sum payment. This application was denied and this decision was upheld by the DRDRB. Mr. Heney then appealed this decision within the statutory framework of the Workers’ Compensation Act , RSA 2000, c W-15 , and the Appeals Commission once again upheld this decision. Mr. Heney now seeks a judicial review of this decision before this Court. [ 4 ] Mr. Heney seeks a declaration that the

interpretation of the Policy by the Appeals Commission was incorrect and a declaration that he has satisfied the conditions of the Policy and is entitled to a lump sum payment. Legislative Framework [ 5 ] Mr. Heney has been receiving payments subject to

section 56 of the Workers’ Compensation Act and the power for the Board to commute to a lump sum periodic payments is outlined at

section 47. [ 6 ] The actual process by which someone who receives periodic payments per the Workers’ Compensation Act is through the Policy which sets out the conditions which must be considered to commute the payments to a lump sum. Standard of Review [ 7 ] Following the landmark decision of Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 , [“ Vavilov ”] there is now a presumption of reasonableness in judicial review: Vavilov at para 23 .

This presumption can be rebutted if the legislature has explicitly legislated a standard of review for certain questions or if there exist statutory appeal mechanisms. This is the case here as the Workers’ Compensation Act has legislated at

section 13.4(1) that decisions of the Appeals Commission may be appealed to the Court of King’s Bench on a question of law or jurisdiction. As outlined by the Court in Vavilov at paragraph 37 , where such a statutory appeal mechanism has been established, the court hearing the appeal of the administrative decision would apply the standards set out in Housen v Nikolaisen , 2002 SCC 33 . [ 8 ] In the present case, the question of the

interpretation of the Policy is a question of statutory

interpretation and thus would be under the standard of correctness: Vavilov at paragraph 37 . [ 9 ] The question of whether the Appeals Commission erred in its application of the Policy regarding Mr. Heney is outside of the scope of the statutory appeal mechanism within the Workers’ Compensation Act and thus remains subject to the presumptive standard of reasonableness set out in Vavilov . Positions of the Parties [ 10 ] Mr. Heney argues that the decision by the Appeals Commission was both incorrect and unreasonable. He raises two main issues with the decision.

The first is that the asterisk in Question 2, which states that the WCB will not consider a commutation if regularly scheduled reviews are still required, only applies in cases where the ELP is no more than 10% of the worker’s annual net earnings at the time of the accident. As such, Mr. Heney argues that Question 3 is separated from this asterisk and thus this did not apply in his case so the Appeals Commission erred in dismissing his appeal. [ 11 ] The second is that Mr.

Heney argues that although the Policy requires independent financial advice on his financial situation and enumerates in the asterisk of Condition (b) (iii) of Question 3 the professional designations that would be considered, he had gone to see a Certified Financial Planner (CFP) at the Royal Bank of Canada. Although acknowledging that this professional designation is not included in the list of those who would be considered, Mr.

Heney argues that a CFP is very similar to a CFA and thus should fit the qualifications required. [ 12 ] The Respondents on the other hand defend the position by emphasising that the Appeals Commission properly understood its statutory framework and interpreted the Policy correctly while achieving a reasonable result. The Respondents also highlight that even if this Court were to allow the appeal, the matter would have to be returned to the Appeals Commission to consider the matter again and that the Court could not give the Applicant the remedy he seeks. Analysis [ 13 ] Mr.

Heney presents a very sympathetic figure. Unfortunately, it is difficult to see how the decision of the Appeals Commission is unreasonable or incorrect. As noted in the Appeals Commission decision, it was not in dispute that “the WCB has determined that reviews of the worker’s ELP are required every five years”: Decision at paragraph 9. Following this finding, the Appeals Commission upheld the DRDRB’s decision by highlighting the following in its analysis: [11.2] [...] In our opinion the most reasonable

interpretation on plain reading of the policy is that Questions 2 and 3 are to be read together. Question 3 flows from Question 2. [11.3] Question 2 sets out generally the circumstances of when the WCB will commute an ELP in the first paragraph.

[11.4] Because Question 2 sets out the general criteria for commutation, the criteria set out after the asterisk in Question 2 (that follows the circumstances set out in the second bullet) would apply to all lump sum commutations of an ELP.

We acknowledge that the asterisk follows the bullet that says the WCB will usually commute an ELP if its less than 10 percent, but we read it as also applying generally to the intent of the first paragraph of Question 2, which sets out the circumstances of when the WCB will commute a permanent disability benefit. [11.5] As a result, we find that Question 2 of the policy says that, in general, WCB will not consider a commutation of an ELP at all unless it has determined that regularly scheduled reviews are not required.

This would apply regardless of whether the ELP was less than or greater than 10 percent of the worker’s annual net earnings, as the 10 percent cut-off only determines when the WCB will usually commute the benefits. [11.6] Question 2 goes on to say that, in the case of an ELP that is more than 10 percent, certain conditions must be met. These conditions are set out in Question 3. [ 14 ] The Appeals Commission therefore upheld the DRDRB’s decision and determined that it was unnecessary to engage with the other issues raised by Mr. Heney as this was conclusive on the issue.

If a commutation to lump sum is not possible while regularly scheduled reviews are required, then it was unnecessary to engage with the follow-up questions within Question 3. [ 15 ] I agree that the Appeals Commission was correct in its

interpretation of the Policy. On a plain reading, the asterisked provision suggests that if regularly scheduled reviews are required this will prevent any consideration of commutation to a lump sum. Although it is first mentioned in the context of an ELP less than 10% of the worker’s annual net earnings at the time of the accident, it follows that this would cut off consideration as well for larger ELPs such as the one in issue.

It would be only if the regularly scheduled reviews are not required and the ELP is more than 10% that the WCB would then move on to consider the conditions outlined in Question 3 of the Policy. This plain reading is bolstered by the minutes of a meeting of the board of directors of the WCB on June 24, 2003, where it is clear that the intention of the

section was for the regularly scheduled reviews to not be a requirement in all cases involving consideration of a lump sum commutation. I find that the

interpretation by the Appeals Commission was correct. [ 16 ] As noted by the Court in Vavilov , the burden is on the party challenging the decision to show that it is unreasonable: paragraph 100. Mr. Heney has not satisfied me that the application of the Policy to him was unreasonable. The reasoning of the Appeals Commission in this case was internally coherent as well as justified in light of the legal and factual constraints that bear on the decision. As I have found that the

interpretation of the Policy by the Appeals Commission was correct, it would not be open to consider a lump sum commutation, and this closes the question. Therefore, the application of the Policy by the Appeals Commission was reasonable. [ 17 ] Even if this were not the case, there were other clear conditions that would have to have been met and were not in the present case. Without impugning the abilities of a Certified Financial Planner, Question 3(b)(iii) provides a clearly delineated list of who must offer the independent financial advice required, and a CFP is not included on that list.

Question 3 makes it clear that all of the conditions must be met to consider a lump sum commutation. [ 18 ] Further, even if I am wrong in my

interpretation of the Policy, it would not be possible to provide the remedy sought by Mr. Heney. As stated at section 47(1) of the Act : Commutation of periodic payments 47(1) The Board may commute to a lump sum periodic compensation payments to a worker or dependant, regardless of whether the accident that gave rise to the right to compensation occurred before or after the coming into force of this Act. (Emphasis added) The

section is clear that commutation is not obligatory. Even Question 2 of the Policy recognises it where it highlights that “[t]he WCB will usually commute permanent disability benefits in the following circumstances” (Emphasis added), showing that it remains a discretionary remedy. [ 19 ] The Court in Vavilov also emphasised that the proper approach in a situation wherein a decision of an administrative tribunal is found to be unreasonable on judicial review is to send it back to that body with the benefit of the reviewing court’s reasons: at paragraph 141.

This is not a situation wherein “a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose": Vavilov at paragraph 142 . As mentioned above there were other questions that the Appeals Commission determined it need not answer, and it is not obvious what it would decide on those questions. Disposition [ 20 ] For the above reasons, the application for judicial review of Mr.

Heney is dismissed, having not satisfied me that the decision of the Appeals Commission was either incorrect or unreasonable. [ 21 ] If the parties cannot agree as to costs, they may provide submissions to me within 30 days of this judgment. Heard on the 3 rd day of February, 2023. Dated at the City of Calgary, Alberta this 28 th day of April, 2023.

W.P. Sullivan J.C.K.B.A. Appearances: Harold Hinz for the Applicant Peter E. Moreland-Giraldeau for The Appeals Commission for Alberta Workers’ Compensation Bryanna J. White for The Workers’ Compensation Board