2012 NBCA 86, 2012 NBCA 86

COURT OF APPEAL OF NEW BRUNSWICK 159-11-CA KEITH GRAHAM SANFORD APPELLANT KEITH GRAHAM SANFORD APPELANT - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL INTIMÉE Sanford v. Workplace Health, Safety and Compensation Commission, 2012 NBCA 86 Sanford c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2012 NBCA 86 CORAM: The Honourable Justice Robertson The Honourable Justice Bell The Honourable Justice Green CORAM : L’honorable juge Robertson L’honorable juge Bell L’honorable juge Green Appeal from a decision of the Appeals Tribunal of the Workplace Health, Safety and Compensation Commission: June 22, 2011 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 22 juin 2011 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: February 22, 2012 Appel entendu : Le 22 février 2012 Judgment rendered: October 18, 2012 Jugement rendu : Le 18 octobre 2012 Reasons for judgment by: The Honourable Justice Green Motifs de jugement : L’honorable juge Green

Concurred in by: The Honourable Justice Robertson The Honourable Justice Bell Souscrivent aux motifs : L’honorable juge Robertson L’honorable juge Bell Counsel at hearing: For the appellant: Daniel P.L. Leger For the respondent: David G. O’Brien, Q.C. Avocats à l’audience : Pour l’appelant : Daniel P.L. Leger Pour l’intimée : David G. O’Brien, c.r. THE COURT The appeal is dismissed. LA COUR L’appel est rejeté. The judgment of the Court was delivered by GREEN J.A. I.

Introduction [ 1 ] The appellant suffered a workplace injury in January 2007, and was approved for benefits under the Workers’ Compensation Act , R.S.N.B. 1973, c. W-13 (the Act ). Two subsequent decisions of the Workplace Health, Safety and Compensation Commission formed the basis of his appeal to the Appeals Tribunal constituted under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14. The Tribunal denied his appeal, and Mr. Sanford then appealed that decision to this Court. At the conclusion of the hearing, we dismissed Mr. Sanford’s appeal with reasons to follow.

Here are my reasons. II. Background [ 2 ] The appellant was employed by Canada Post in Moncton, New Brunswick, as a letter carrier. He resided in Miramichi, New Brunswick. The two cities are located approximately 150 kilometres apart. [ 3 ] On January 26, 2007, the appellant slipped and fell on ice while working.

He was approved for benefits, under the Act , with respect to his workplace injury on March 15, 2007. [ 4 ] The appellant reported that following the workplace injury, he began experiencing problems with his bowels. [ 5 ] On February 21, 2008, the appellant underwent spinal surgery with respect to the workplace injury.

[ 6 ] In June 2009, a plan calling for the appellant to return to work on modified duties was arranged. The appellant was to be involved in the sorting of mail and related tasks at a facility in Moncton between the hours of midnight and 8:00 am. The appellant did not participate in this plan, citing health problems related to his workplace injury. [ 7 ] In a letter dated July 23, 2009, the Commission advised the appellant his benefits would cease as of July 27, 2009. The following reasons were provided: […] [Y]ou indicated that you would not continue to participate in your gradual return to work program.

Worksafe NB has offered you lodging in Moncton to minimize driving in order to help you continue with your rehabilitation plan. The information supplied by your family physician [confirms] that “part of the problem is the fact that he has to drive back and forth each day to Moncton”[.] [H]e also indicated that if you didn’t have the driving, that you could complete the return to work program. [ 8 ] The decisions of the Commission underlying this matter are as follows: 1.

On July 23, 2009, the Commission determined the appellant’s compensation coverage ceased, as he did not wish to participate in the appropriate return-to-work program. That decision was upheld on October 7, 2009. 2. On October 25, 2009, the Commission determined bouts of diarrhea experienced by the appellant were not related to his compensable injury and subsequent surgery. That decision was upheld on November 8, 2009. III.

Decision of the Appeals Tribunal [ 9 ] The following two excerpts from the decision of the Appeals Tribunal concisely summarize its findings and decision with respect to the appellant: After review of all the information on file and presented at the hearing, the Appeals Panel concluded that the appellant’s bowel problems were not related to his compensable back problems. Secondly the Panel found that the appellant chose to live in another part of the province where his job was not located; therefore, he would have to drive a great distance to his job location, thus causing him pain.

In addition, he was not able to work the night shift which he was responsible to do for the employer. The appellant used these two reasons for not being able to participate in a gradual return-to-work program. The Panel did not find there was objective medical evidence to support his non-participation and could not accept either reason given by the appellant. […] After review of all the evidence, the Appeals Panel determined that there was sufficient medical evidence to conclude that the appellant’s bowel situation is not the result of the compensable injury.

Secondly there is no objective evidence to indicate the appellant could not participate in some form of a gradual return to work. The appellant’s work is at the same location as it was prior to that accident. The travel issue is a non-issue as there are methods to use to be able to accommodate this, such as overnight accommodation in the city where his work is to be completed or car-pooling. [pp. 3 and 7] IV. Issues

[10] The appellant relies upon five grounds of appeal, and attributes the following errors to theAppeals Tribunal: 1. misapprehending the duty to accommodate; 2. determining travel from the appellant’s “home area to his place of employment” was not a matter relevant to the appellant’sworkplace injury; 3. accepting there were “absolutely no reasons why the Appellant could not participate in a gradual return-to-work program”; 4. concluding there was “no objective evidence to indicate the appellant could not participate in some form of gradual return to work”;and 5. ignoring the evidence of the appellant’s physician that his diarrhea was a compensable injury.

V. Law & Analysis A. Standard of Review [11] The standard of review in workers’ compensation cases is well established. Writing for the Court in Canada PostCorporation v. Carroll and Workplace Health, Safety and Compensation Commission of New Brunswick, 2012 NBCA 18, 383 N.B.R.(2d) 326, Robertson J.A. provided a comprehensive explanation of the applicable law: With the statutory adoption of the workplace insurance scheme in 1918, the decisions of the Workmen's Compensation Board involvingquestions of law and jurisdiction were reviewed on the correctness standard.

Under the Workmen's Compensation Act, S.N.B.1918, c. 37, s. 33(1) and s. 35, the New Brunswick legislature declared the Board's rulings involving questions of law and fact to be "finaland conclusive", subject only to direct right of appeal to the Court of Appeal, with leave of a judge of the Court of Queen's Bench, on aquestion of law or the Board's jurisdiction.

Under the legislation in force in 1973, the decisions of the Board (now Commission) wereexpressly deemed to be final and immune from judicial review, subject to a statutory right of appeal to this Court on questions of law andjurisdiction: see Workmen's Compensation Act, R.S.N.B. 1973, c. W-13, ss. 34(1) and 36(2). The Appeals Tribunal was established in1989 (S.N.B. 1989, c. 65, s. 5). The amending legislation declared decisions of the Appeals Tribunal to be final, subject only to an appealto this Court on a question of law or jurisdiction.

In 1994, further amending legislation clothed the Appeals Tribunal with the status of anindependent adjudicative tribunal. Section 21(1) of the current WHSCC Act establishes a "final right of appeal" to the Tribunal from adecision of the Commission. Section 21(12) of that Act also states that all decisions of the Appeals Tribunal are final, subject to anappeal to this Court on a question of law or jurisdiction. The New Brunswick jurisprudence supports the general understanding that this Court has, from the outset, applied the correctnessstandard to questions of law and jurisdiction.

Indeed, some of the earlier cases predate the articulation of the modern deference doctrine.In Lanteigne v. Workmen's Compensation Board (N.B.) (1973), (NB CA), 7 N.B.R. (2d) 36, [1973] N.B.J. No. 112(S.C.A.D.) (QL) and Crothers and Sussex Farm & Garden Ltd. v. Martin and Ascon Ltd. and Workers' Compensation Board(N.B.)(1982), (NB CA), 44 N.B.R. (2d) 59, [1982] N.B.J. No. 392 (C.A.) (QL), this Court assumed that correctnesswas the proper review standard for questions of law. Admittedly, it was not until 1994 that the standard of review issue was expresslyraised in this Court in Spellman v.

Gulf Operators Ltd. et al. (1994), (NB CA), 143 N.B.R. (2d) 382, [1994] N.B.J.No. 27 (C.A.) (QL). Writing for the Court, Chief Justice Hoyt reaffirmed the law as it had been assumed to be in earlier precedents: seealso Martin v. Commission de la santé, de la sécurité et de l'indemnisation des accidents au travail (N.-B.) (1998), (NB CA), 205 N.B.R. (2d) 319, [1998] N.B.J. No. 263 (C.A.) (QL). Subsequently, in Gallant v. Workplace Health, Safety andCompensation Commission (N.B.) (2000), (NB CA), 228 N.B.R. (2d) 98, [2000] N.B.J.

No. 320 (C.A.) (QL), thisCourt, per Drapeau J.A. (as he then was), was called on to reaffirm its earlier precedents. I am not suggesting that the other factors set out in Dunsmuir have been ignored or that a statutory right to appeal a tribunal decisioninvolving a question of law has been viewed determinative of the review standard: see the extensive analysis offered in Keddy v.

Workplace Health, Safety and Compensation Commission, Region 3 Hospital Corporation and Anne Brown, 2002 NBCA 24, 247N.B.R. (2d) 284. For example, when it comes to an appeal on a question of law, one cannot simply ignore the fact that, until recently, nomember of the Appeals Tribunal was trained in the law. Nor has the Tribunal been guided in its legal determinations by the hand ofindependent legal counsel retained by the Appeals Tribunal.

It is within this context that one has to approach the matter of tribunalexpertise and not to be influenced by presumptions based, for example, on the realities of federal tribunals responsible for regulating suchmatters as energy, transportation or communications.

In brief, so long as the analytical framework for identifying the applicable standardof review is premised on the understanding that the search for the proper standard is a search for legislative intent, the New Brunswickjurisprudence remains true to that of the Supreme Court. […] As would be expected, the New Brunswick jurisprudence recognizes that tribunal decisions involving a question of mixed law and fact(the application of an analytical framework to unchallenged primary findings of fact) must be accorded deference on the standard ofreasonableness, as articulated in Dunsmuir.

Questions of fact are reviewable on the standard of palpable and overriding error. The reviewof factual determinations is consistent with the notion that a palpable and overriding error of fact qualifies as an error of law and alsowith s. 21(9) of the WHSCC Act: see generally Brun v. Commission de la santé, de la sécurité et de l'indemnisation des accidents autravail (N.-B.) (1996), (NB CA), 183 N.B.R. (2d) 172, [1996] N.B.J.

No. 507 (C.A.) (QL); VSL Canada Ltd. v.Workplace Health, Safety and Compensation Commission and Duguay et al., 2011 NBCA 76, 376 N.B.R. (2d) 292; Stewart v.Workplace Health, Safety and Compensation Commission, 2008 NBCA 45, 331 N.B.R. (2d) 278; The City of Saint John v. TheWorkplace Health, Safety and Compensation Commission of New Brunswick and Rowe, 2008 NBCA 83, 338 N.B.R. (2d) 213 andNew Brunswick Power Generation Corporation v. Workplace Health, Safety and Compensation Commission and Dashwood, 2011NBCA 47, 374 N.B.R. (2d) 230. [paras. 18-20 and 22] B.

Grounds of Appeal [12] Grounds of appeal two through five allege errors of fact. In order to attract appellate intervention, any such errormust be palpable and overriding. In my opinion, the appellant failed to demonstrate a palpable and overriding error with respect to any ofthe factual findings of the Tribunal; therefore, those four grounds of appeal must be dismissed. In effect, the Court was invited to retrythe issues enumerated by the appellant, assess the evidentiary record, and reach its own conclusions.

Clearly, that is not our role. [13] The first ground of appeal alleges an error of law, specifically that the Appeals Tribunal has misapprehended theduty to accommodate. This ground poses somewhat of a challenge in that the Tribunal’s decision makes no explicit reference to the dutyto accommodate.

The appellant invited the Court to look instead at the transcript, and argued that it disclosed an inappropriateunderstanding of accommodation principles on the part of the Tribunal. [14] I could find no such lack of understanding by the Tribunal, and in any event, I am satisfied theemployer made reasonable efforts to accommodate.

It is important to note, however, that the rationale for the Tribunal’s decision on thecessation of benefits issue was not grounded in its appraisal of how the employer had responded to the situation, i.e. accommodation, butrather how the appellant had conducted himself with respect to the gradual return-to-work program.

The following excerpts from theTribunal’s decision confirm this understanding: The Appeals Panel noted that both medical and other professionals involved in this case were of the opinion that there [were]absolutely no reasons why the appellant could not participate in a gradual return-to-work program, which the Panel accepts. […] The Appeals Panel accepts the professional multidisciplinary team’s report and agrees that the appellant could participate in a gradualreturn-to-work program. Subsection 41(16) of the Workers’ Compensation Act (the Act) states:

(16) The Commission may also in its discretion diminish the compensation to which a worker is entitled or suspend payment thereof whenever the worker persists in dangerous and unsanitary practices imperiling or retarding his cure, or whenever he refuses to submit to such medical treatment and surgical aid as the Commission may deem necessary for his cure. The Appeals Panel accepts that the Commission has the authority to do such and, since the appellant was not interested in returning to a gradual return to work, then the team was correct in its actions to suspend his benefits. [pp. 6-7] In

summary, I find no merit in the first ground of appeal. Accordingly, it is for these reasons I was prepared to dismiss the appeal. However, there is one further matter that requires consideration. C. Position of the Respondent [ 15 ] The Court heard no argument from the respondent. On instructions from the Commission, counsel for the respondent made no oral submissions before the Court.

The respondent’s position on appeal is succinctly conveyed in the first paragraph of its written submission: The Respondent, Workplace Health, Safety and Compensation Commission of New Brunswick (“WHSCC”), does not intend to either support or oppose the within appeal. Rather, the Respondent will attempt to provide assistance to the Court with the analysis of the applicable law, similar to the role served by amicus curiae . [ 16 ] With respect, I find this position to be problematic.

This is but one in a series of recent cases before our Court in which WHSCC is named as a party, and the concerns I have with the Commission’s position in this matter are not new. I will, however, take this opportunity to articulate my frustration with the situation in the hope it may lead to either a change in approach or a change in the governing legislation. [ 17 ] I begin with an overview of the nature and extent of judicial review of administrative decisions, and again refer to the words of Robertson J.A., in this instance writing for the Court in Smith v.

Province of New Brunswick (Department of Public Safety) and New Brunswick Human Rights Commission , 2012 NBCA 41 , [2012] N.B.J. No. 139 (QL) : There is one other matter which requires mention. At the appeal hearing, we noted the complainant had made the Commission a party to the application for judicial review, even though there is no provision in the Human Rights Code which grants the Commission status to appear as either a party or intervener in judicial review proceedings.

Admittedly, s. 20(4.1) (now s. 23(7)) provides that in cases where the complaint goes to the inquiry stage, the Commission has carriage of the complaint and is a party to the inquiry. It should follow that if the commission is a party to the inquiry, it is a party to any subsequent judicial review proceedings. However, as s. 20(4.1) of the Code is not applicable, we asked whether the Commission had the requisite standing in circumstances where the Commission’s decision was being attacked by the complainant and defended by the employer.

The Commission was kind enough to provide us with a supplementary submission regarding the issue of standing. The Commission’s supplemental brief refers to several cases in which the Commission has been named as a party to a judicial review or appeal proceeding. However, none of the cases raise the issue of tribunal standing. This leaves us to consider this Court’s decision in United Brotherhood of Carpenters and Joiners of America v. Bransen Construction Ltd ., 2002 NBCA 27 , 249 N.B.R. (2d) 93 . In that case, a decision of the Labour and Employment Board had been subjected to judicial review.

The employer was challenging the decision and the union defending it. The application was allowed and, on appeal to this Court, the Board notified the Registrar that it would be making written submissions and appearing at the scheduled hearing. In the absence of a statutory provision bestowing standing on the Board, this Court rejected the Board’s contention it possessed the inherent right to participate in the proceedings, either in the Court of Queen’s Bench or in this Court, once the originating document issued.

This Court held that the Board may participate in the proceedings, provided the requisite standing was obtained pursuant to either Rule 15.02 or 15.03 of the Rules of Court . Save for s. 20(4.1) , there is no provision of the Human Rights Code which makes the Commission a party to any legal proceedings in which one of its decisions is being reviewed judicially. Nor does the Code give the Commission the general right to participate in review proceedings. This omission is to be contrasted with the legislation governing workers’ compensation claims under the Workers’ Compensation Act , R.S.N.B. 1973, c.

W- 13 and the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14 . Within that framework, the Workers’ Compensation Commission is given the right to participate in appeals to this Court from the Appeals Tribunal: see s. 23(6) of the

Workplace Health, Safety and Compensation Commission Act. There will be cases where the Commission cannot avoid being a named party: see New Brunswick Human Rights Commission v.Province of New Brunswick, where the Commission was named a party in order to avoid the embarrassment of having one governmentMinister suing another. But that is the exceptional case. Hence, the Commission more often than not will need to seek the requisitestanding. But I do not want to leave the impression this Court is unsympathetic or antagonistic to the Commission exercising its legalright to seek standing.

In cases where it is alleged the tribunal breached the fairness duty, the decision to grant status as an intervener or aparty is normally expected, particularly if the allegation relates to post-hearing matters or allegations of actual or perceived bias. Whilestanding has often been granted in cases where the tribunal’s jurisdiction is in issue, the Supreme Court has recently narrowed theconcept of jurisdiction by use of a presumption: see Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association,2011 SCC 61, [2011] 3 S.C.R. 654, in particular, para. 31.

There are also cases where one of the parties lacks the ability to defend atribunal decision, as is true in the case of the self-represented litigant. In such circumstances, the tribunal may be driven by practicalnecessity to obtain the requisite standing. It must be remembered that the lead decision of the Supreme Court with respect to tribunal standing remains Northwestern Utilities Ltd.et al. v. Edmonton.

The precedential significance of that case can be reduced to the proposition that no tribunal is entitled to makesubmissions aimed at bolstering reasons that are otherwise viewed as being materially deficient. Bluntly stated: “bootstrapping” is notpermitted. The long and the short of it is that the Supreme Court held that the ability of a tribunal to make submissions embracing themerits of the case undermines the principle of tribunal impartiality. At the same time, this Court recognized that the subsequentjurisprudence has made room for exceptions.

The law in New Brunswick is summarized in Bransen Construction, in the followingmanner: In

summary, a tribunal seeking intervener status must persuade the court that: the case is of precedential significance; the tribunal cancontribute to the proceedings in a way not reasonably expected of the parties; and the principle of impartiality can and will be respected.Written submissions that address the merits of the decision do not offend this principle, except those intended to bootstrap tribunalreasons that are materially deficient.

Oral submissions that respond only to questions posed by the reviewing court, or are of briefduration, qualify as non-aggressive participation that respect the principle of impartiality. [para. 36] As the Commission was made a party to the proceedings and no one objected to its participation, there is no need to comment furtherwith respect to the standing issue: see generally Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner), (ON CA), [2005] O.J. No. 1426 (C.A.) (QL); B.C.

Teachers’ Federation, Nanaimo District Teachers’ Association et al. v.Information and Privacy Commissioner (B.C.) et al., 2005 BCSC 1562, [2005] B.C.J. No. 2394 (QL) and Leon’s Furniture Limited v.Alberta (Information and Privacy Commissioner), 2011 ABCA 94, [2011] A.J.

No. 338 (QL), which draws a distinction between casesin which the tribunal is adjudicating over a dispute between two adversaries and those in which it is not. [paras. 20-24] [18] As noted by Robertson J.A. in Smith, the workers’ compensation scheme in New Brunswickimbues the WHSCC with a statutory right to participate in appeals before this Court on decisions of the Appeals Tribunal. Section 23(6)of the Workplace Health Safety and Compensation Commission Act provides as follows: Appeal to Court of Appeal […] 23(6) The Commission is entitled to berepresented by counsel on the hearing of anappeal.

Appel à la Cour d’appel […] 23(6) Lors de l’audition de l’appel, laCommission a le droit d’être représentée parun avocat. Interestingly, the provision does not explicitly state the Commission is a party in such proceedings.

[ 19 ] The Commission regularly appears before this Court in appeals from decisions of the Appeals Tribunal. The challenge for the Court is the lack of consistency as to how the Commission construes its role. I will elaborate. [ 20 ] In some instances, the Commission is named as the sole respondent, as is the situation in the present case. In other instances, the Commission is named as a respondent in addition to the employer, if the appellant is the worker, or in addition to the worker, if the appellant is the employer. The problem lies in how the Commission chooses to participate as respondent. On Mr.

Sanford’s appeal, the Commission takes no position. In some cases, the Commission vigorously defends the impugned decision of the Appeals Tribunal. On occasion, the Commission argues against the decision of the Appeals Tribunal, and adopts a position supportive of the appellant. It is this latter scenario which produces the most troubling results. I cite as a glaring example J.D. Irving, Limited (Sussex Sawmill) v. Wayne Douthwright and Workplace Health, Safety and Compensation Commission , 2012 NBCA 35 , 386 N.B.R. (2d) 241 , in which Richard J.A. wrote: […]

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. 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. [paras. 47-48] [Emphasis in original.] [ 21 ] The remarkable aspect of the Douthwright appeal was having the Commission argue the Appeals Tribunal’s decision was wrong, that it should be set aside, and that the Court should embrace the position of the appellant employer and allow the appeal.

Given the clear wording of s. 21(11) of the Act , the Commission was in effect saying that its own decision was made in error, and that its own decision should be overturned and set aside. [ 22 ] The reason scenarios such as the one which occurred in Douthwright should not be allowed is straightforward: the Commission should not be permitted to seize upon an appeal to this Court as a second chance to make the case it “lost” before its own Appeals Tribunal. [ 23 ] In the case before us, the Court was not afforded the benefit of a fully articulated response to the appellant’s assertions.

That, after all, is what is normally expected of the respondent, and it is this process which best allows for a complete airing of the pertinent issues. [ 24 ] With respect, perhaps the time has come for the Legislature to consider the implications of s. 21(11) . In the alternative or in the meantime, I am of the opinion the Commission should come before this Court adopting a clear, consistent position: the decision of the Appeals Tribunal was correct, and should be upheld.

For greater clarity, it is reasonable to expect the Commission to adhere to the following general framework when participating in appeals before this Court: 1. If the Commission is the sole respondent, or if another named respondent does not appear, or is unrepresented by legal counsel, the Commission is expected to defend the decision of the Appeals Tribunal. An obvious exception to this general principle would be a decision of the Appeals Tribunal which is clearly unsustainable, e.g. a decision of Appeals Tribunal plainly at odds with a decision of this Court or the Supreme Court of Canada. 2.

If another named respondent does appear to support the decision of the Appeals Tribunal, and is represented by legal counsel, the Commission may be expected to respond to questions posed by the Court as would an intervener.

3. In certain circumstances (e.g. an allegation of a breach of the fairness duty), the Commission will be expected to defend the decision of the Appeals Tribunal, even if another named respondent is represented by legal counsel. VI. Disposition [ 25 ] The appeal was dismissed from the bench with reasons to follow. Given the respondent took no position on the appeal, I would award no costs. _______________________________ BRADLEY V. GREEN, J.A. WE CONCUR: _________________________________ J.T. ROBERTSON, J.A. _________________________________ B. RICHARD BELL, J.A.