2017 QCCA 469, 2017 QCCA 469

Lloyd c. Douglas Hospital Institute 2017 QCCA 469 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-026533-166 (500-17-089903-150) MINUTES OF THE HEARING DATE: March 20, 2017 CORAM: THE HONOURABLE nicholas kasirer , J.A. claude c. gagnon , J.A. geneviève marcotte , J.A. APPLICANT MAXWELL LLOYD IN PERSON RESPONDENT COUNSEL DOUGLAS HOSPITAL INSTITUTE Mtre MARC MANCINI (CIUSSS de l’Ouest-de-l’île de Montréal) IMPLEADED PARTIES COMMISSION DES LÉSIONS PROFESSIONNELLES COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL DU QUÉBEC

DESCRIPTION : Application for leave to appeal after the expiry of the time limits from a judgment rendered on October 7 th , 2016 by the Honourable Danielle Turcotte of the Superior Court, District of Montreal (Article 363 C.C.P .) Clerk: Robert Osadchuck Courtroom: Pierre-Basile-Mignault HEARING 11:28 Commencement of the hearing. 11:28 Justice Kasirer addresses to Mr. Lloyd. 11:31 Submissions by Mr. Lloyd. 11:42 Mr. Lloyd asks to file a document from the Jewish General Hospital dated February 15, 2017. 11:42 The filing of the document is taken under reserve. 11:57 Submissions by Mtre Mancini. 12:02 Reply by Mr.

Lloyd. 12:04 By the Court: Judgement will be rendered during the course of the day and sent to the parties by e- mail. Robert Osadchuck Clerk BY THE COURT JUDGMENT [ 1 ] Maxwell Lloyd seeks an extension of time to bring an application for leave to appeal pursuant to

article 363 C.C.P. He asks to appeal a judgment of the Superior Court, District of Montreal, (the Honourable Madame Justice Danielle Turcotte), rendered on October 7, 2016, (with written reasons transcribed on February 7, 2017), which dismissed his application for judicial review from a decision of the Commission des lésions professionnelles. [ 2 ] The dispute between the parties is a longstanding one. In essence, Mr Lloyd says that prior to a workplace accident that occurred in 1997, he never suffered from back pains. While his condition did improve, he was left with a 2% permanent disability.

He states that further accidents aggravated his initial injury. He developed a depression that was caused, he says, by his workplace injury and the on-going pain he suffers. [ 3 ] The petitioner made several claims for “relapse, recurrence or aggravation” of his workplace injury before the CSST, including one that is the basis for the current dispute.

That body dismissed the relevant claim on November 5, 2013, because, it wrote, “there is no objective deterioration of your health in regards to your initial injury occurring on October 15, 1997”. [1] The CSST also decided that there was no other type of industrial injury that would justify his claim.

[ 4 ] The CLP dismissed Mr Lloyd’s application to review the decision of the CSST. After examining the evidence, the CLP decided to reject the medical report submitted by Mr Lloyd that indicated that his depression was caused by his workplace accident. The CLP was of the view that the consequences of that accident were consolidated in 1998. Mr Lloyd was fit as early as 1999 but he did not return to work.

The CLP specifically noted that the medical follow-up in the file (“le suivi médical au dossier”) was insufficient to establish a connection between the petitioner’s depression and the initial accident (para. [34]) of the decision. [ 5 ] The judge of the Superior Court held that the decision of the CLP was a reasonable one and dismissed his application for judicial review.

She noted that Mr Lloyd had not produced the transcripts of the hearing before the CLP. [ 6 ] The judge observed that the CLP considered the evidence and concluded that Mr Lloyd’s psychological condition was not connected to the workplace accident. She wrote in paragraphs [18] to [21] that the CLP took account of the evidence of the connection between the accident and the depression but, referring to the follow-up, declined to give it sufficient weight.

The judge explained that the CLP had determined that the basis upon which the doctor found a link between the accident and Mr Lloyd’s depression was unclear and that it had taken into account, in particular, the long period of time that had passed since the consolidation of his injuries. [ 7 ] Applying the reasonableness standard for judicial review, the judge dismissed the application.

She concluded that the CLP’s decision was reasonable and intelligible, and that the decision fell within a range of possible, acceptable outcomes which are defensible in respect of the relevant facts and law . *** [ 8 ] Mr Lloyd, who is not represented by counsel, states that he was late in filing his application for leave because he did not have a copy of the transcribed reasons for judgment within the time limit. The Court notes that he was represented by counsel at the hearing for judicial review and that the judge rendered her judgment orally in the presence of the parties.

The Court shall nevertheless assume, for the purposes of discussion here, that the petitioner has proper reasons to explain his lateness. [ 9 ] Once the issue of lateness is put to one side, leave is only granted, pursuant to

article 30, paragraphs 2 (5) and 3 C.C.P., where the petitioner shows that the question raised is one that merits the attention of the Court, in particular where it involves a question of principle, a new issue or question of law that has given rise to a conflict in the decided cases. Even where such a question is raised, the appeal for which leave is sought must have a reasonable prospect of success. *** [ 10 ] The petitioner recognizes that the judge was right to apply the test of reasonableness as the appropriate standard for judicial review of the CLP’s decision. He argues, however, that this standard was misapplied by the judge in that (

i) she applied it in too stringent a manner; (ii) the judge’s comments at the hearing suggested that she “might have created a predetermination in appearance”; (iii) that she failed to discern errors of law and of fact in the evaluation of the evidence by the CSST and the CLP, in particular that there was an “obvious suppression of vital information” before the tribunals, amounting to a “conspiracy” to suppress evidence by which the opposing parties gained an advantage in argument; and (iv) that the evidence suggested that following his workplace accident, he showed signs of depression because the pain was “controlling his life” and that the judge of the Superior Court omitted to consider this evidence properly. *** [ 11 ] Leave should be dismissed.

Even if one were to assume that the motion was presented in a timely manner and that it raised a question of interest, the proposed appeal of the judgment of the Superior Court has no reasonable chance of success. [ 12 ] Firstly, the petitioner raises no serious argument that could ground a finding of real or apparent bias or impeach the judge’s impartiality. It bears recalling that judges benefit, under the law, from a presumption of they act without bias and that this presumption is not overturned lightly. There is nothing to suggest that a reasonable person would apprehend bias here: Wewaykum Indian Band v.

Canada . [2] [ 13 ] Second, the judge made no mistake, pursuant to the applicable reasonableness standard, by showing deference to the treatment of the evidence by the administrative tribunal.

It is a cardinal principle of Canadian public law that the courts should defer to administrative decision-makers who, when acting within their field of expertise, are best placed to understand the evidence and apply it to the statutes that Parliament has charged them with the duty to administer. [ 14 ] Thirdly, the application for judicial review did not include the transcripts of the hearing before the CLP which limited the ability of the petitioner to show that the decision was unreasonable.

It should be added, as the judge properly noted, that the CLP is not bound to explain, in minute detail, all of evidence it considered or that was submitted by the parties. Suffice to say here that no meaningful argument has been advanced to suggest that the decision-makers did not consider “vital information”, much less that such information was “suppressed” by a conspiracy of the parties to undermine Mr Lloyd’s claim. [ 15 ] Fourthly, the petitioner sought to produce a medical report, dated February 15, 2017, from a consultation he had at the Jewish General Hospital in respect of his depression.

This report post-dates the hearing in the Superior Court and would only be admissible on appeal if the petitioner demonstrated that it meets the requirements for new evidence set forth in

article 380 C.C.P. [ 16 ] Assuming without deciding that this report could be considered by the Court, it would not change the outcome of the dispute. It may be recalled that the CLP cited the insufficient medical follow-up to justify the dismissal of the claim. The report is weak proof of such follow-up. The report notes that the petitioner was only treated for depression from 2011. For the period between 1998 and 2011, the doctor only attests that the patient complained of depression and on that basis it was likely that he had been depressed since the initial injury.

With respect, this after-the-fact medical report does not show that the finding of the CLP was unreasonable. [ 17 ] Finally, we take seriously Mr Lloyd’s assertion that he suffers from a psychological condition and that, for him and for some the doctors he consulted, there is a link between this condition and on-going back problem. We agree with the judge, however, that it was

not unreasonable for the CLP to interpret the evidence – specifically the sufficiency thereof – otherwise. In judicial review, the deference owed to the reading of the evidence by the expert administrative decision-maker means that courts cannot substitute their own views for that of the CLP. [ 18 ] Mr Lloyd’s motion has not convinced us that there is a serious argument to suggest that the CLP misread the evidence, or failed to consider evidence, or even failed to draw inferences from the evidence in a manner that would show its decision to be “unreasonable” within the meaning of the Dunsmuir v.

New Brunswick . [3] [ 19 ] FOR THE AFOREMENTIONED REASONS , the Court: [ 20 ] DISMISSES the motion for leave to appeal after the expiry of the time limits, with judicial costs. NICHOLAS KASIRER, J.A. CLAUDE C. GAGNON, J.A. GENEVIÈVE MARCOTTE, J.A.