r v. Workplace Health, 2015 NBCA 9

COURT OF APPEAL OF COUR D'APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK JEAN-GUY FOURNIER APPELLANT 108-14-CA JEAN-GUY FOURNIER APPELANT - and - - et - WORKPLACE HEALTH, SAFETY AND COMPENSATION COMMISSION OF NEW BRUNSWICK RESPONDENT COMMISSION DE LA SANTÉ, DE LA SÉCURITÉ ET DE L’INDEMNISATION DES ACCIDENTS AU TRAVAIL INTIMÉE Fournier v. Workplace Health, Safety and Compensation Commission of New Brunswick, 2015 NBCA 9 Fournier c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail, 2015 NBCA 9 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Richard CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Richard Appeal from a decision of the Appeals Tribunal: May 8, 2014 Appel d’une décision du Tribunal d’appel : Le 8 mai 2014 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: N/A Historique de la cause : Décision frappée d’appel : Inédite Procédures préliminaires ou accessoires : S.O.

Appeal heard: January 15, 2015 Judgment rendered: February 12, 2015 Appel entendu : le 15 janvier 2015 Jugement rendu : le 12 février 2015 Reasons for judgment by: The Honourable Justice Richard Motifs de jugement : l’honorable juge Richard Concurred in by: The Honourable Justice Larlee The Honourable Justice Deschênes Souscrivent aux motifs : l’honorable juge Larlee l’honorable juge Deschênes Counsel at hearing: For the appellant: Alcide Léger For the respondent: Renée Fontaine Avocats à l’audience : Pour l’appelant : Alcide Léger Pour l’intimée : Renée Fontaine THE COURT The appeal is dismissed without costs.

LA COUR L’appel est rejeté sans dépens. English version of the decision of the Court delivered by RICHARD J.A. [ 1 ] Jean-Guy Fournier was injured in a workplace accident on October 16, 1984. He has since received workers’ compensation benefits, but, since August 17, 1989, these have been reduced by an amount equivalent to earnings based on the minimum wage prescribed by law in New Brunswick. Mr.

Fournier has continuously disagreed with the Workplace Health, Safety and Compensation Commission’s decision deeming him capable of earning minimum wages and has periodically asked the Commission to reconsider that decision. [ 2 ] Over the years, the Commission considered additional medical reports submitted in support of reconsideration

requests, but these generally confirmed that Mr. Fournier was capable of some sort of light work. Thus, the Commission continuously maintained its decision. [ 3 ] In 2010, Mr. Fournier, again, asked the Commission to reconsider the reduction of his benefits by the equivalent of minimum wage earnings. On June 16, 2010, the Commission ruled that no new information justified any change. This time, Mr. Fournier appealed the Commission’s decision to the Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act , S.N.B. 1994, c. W-14. In support of his appeal, Mr.

Fournier filed with the Appeals Tribunal medical reports authored subsequent to the Commission’s decision of June 16, 2010. The Appeals Tribunal accepted these reports and, in a decision dated June 27, 2012, concluded that, on the whole of the evidence, it was now established that Mr. Fournier suffered from a total disability. In light of this conclusion, the Appeals Tribunal set aside the Commission’s decision and ordered the benefits recalculated retroactive to the date of the Commission’s decision: June 16, 2010. [ 4 ] Mr. Fournier did not agree with the Appeals Tribunal’s decision.

He believed full benefits should have been ordered paid retroactive to August 17, 1989, when he was initially deemed capable of earning minimum wages. Yet, Mr. Fournier did not appeal the Appeals Tribunal’s decision and the time for doing so has long since expired. [ 5 ] On August 22, 2012, Mr. Fournier asked the Appeals Tribunal to reconsider its decision of June 27, 2012. He argued full benefits should have been ordered paid retroactively to 1989. The Appeals Tribunal agreed to hear his request.

In a decision dated May 8, 2014, the Appeals Tribunal confirmed its earlier decision, ruling that no new evidence had been submitted substantially affecting the matter. Mr. Fournier appeals this last decision. For the reasons that follow, I would dismiss his appeal. [ 6 ] Mr. Fournier raises two grounds of appeal. In the first, he contends the Appeals Tribunal erred in deciding there was no “new evidence substantially affecting the matter”.

He maintains that his flagging the issue of what he considered to be a flagrant contradiction between the evidence the Appeals Tribunal reviewed and the relief ordered in the decision of June 27, 2012, constitutes “new evidence”. With respect, this ground is devoid of any merit. An argument is not evidence. It is as simple as that. In my respectful view, Mr. Fournier’s approach to the reconsideration was simply a veiled attempt to circumvent the fact he had not appealed the Appeals Tribunal’s decision rendered on June 27, 2012. There could only be reconsideration if “new evidence” were adduced: Page v.

Workplace Health, Safety and Compensation Commission of New Brunswick , 2006 NBCA 95 , 304 N.B.R. (2d) 128, per Robertson J.A. at para. 68. In this matter, no new evidence was adduced. [ 7 ] Mr. Fournier’s second ground of appeal is that the Appeals Tribunal erred in not applying this Court’s decision in Kelley v. New Brunswick (Workplace Health, Safety and Compensation Commission) , 2009 NBCA 30 , 345 N.B.R. (2d) 35. Frankly, this is an argument that should have been raised if an appeal had been brought against the Appeals Tribunal’s decision of June 27, 2012. In any event, Kelley has no application here.

Kelley was a case where the remedy was inextricably tied to the sole ground raised before the Appeals Tribunal. As Larlee J.A. explained, “[o]nce the Appeals Tribunal accepted the appeal, the normal remedy is the reinstatement of benefits retroactive to the date of the suspension” (para. 17). That is not the situation in Mr. Fournier’s case where the Appeals Tribunal was called upon to reinstate full benefits to the date upon which it was established Mr. Fournier had become totally disabled. There is nothing incongruous in a finding that, for many years, Mr.

Fournier was capable of earning minimum wage but that, at some later point, his situation deteriorated such that he became totally disabled. [ 8 ] For these reasons, I would dismiss Mr. Fournier’s appeal. I would make no order of costs. ________________________ J.C. Marc Richard, j.c.a. ____________________________ M.E.L. Larlee, j.c.a.

____________________________ Alexandre Deschênes, j.c.a.