LORRIE SITLER Appellant - v. -, 2003 ABQB 277

Sitler v.

Alberta (Workers Compensation Board), 2003 ABQB 277 Date: 2003 03 24 Action No. 0303 03337 IN THE COURT OF QUEEN'S BENCH OF ALBERTA JUDICIAL DISTRICT OF EDMONTON IN THE MATTER OF AN APPEAL OF A DECISION OF THE APPEALS COMMISSION DATED FEBRUARY 3, 2003 PURSUANT TO S. 13.4(1) OF THE ACT BETWEEN: LORRIE SITLER Appellant - and - THE WORKERS COMPENSATION BOARD, THE APPEALS COMMISSION ESTABLISHED PURSUANT TO THE WORKER’S COMPENSATION ACT, THE ESTATE OF DEAN MORRISON AND H & R DRILLING LIMITED PARTNERSHIP Respondents _______________________________________________________ MEMORANDUM OF DECISION of the HONOURABLE MR.

JUSTICE STERLING SANDERMAN _______________________________________________________ APPEARANCES:

G. Brent Gawne for the Appellant Stephan Reinhold for the Estate of Dean Morrison Sandra Hermiston for the Appeals Commission [ 1 ] On March 14, 2003 I heard an appeal from a decision of the Appeals Commission established under the Workers ’ Compensation Act of this province. The Appeals Commission earlier ruled that the estate of Dean Morrison should be given status as an interested party in an appeal brought by Ms. Sitler to the Appeals Commission. She brought her appeal from the Claims Services Review Committee as permitted by the legislation. [ 2 ] She launched this appeal in August of 2002.

In a letter dated September 3, 2002 Mr. Reinhold, counsel for the estate of Dean Morrison, indicated that he would be applying for status to be heard as a party when the Appeals Commission dealt with the matter. In his letter of September 3, 2002 Mr. Reinhold very briefly outlined why he thought his client should be allowed status. His letter did little more than inform the Appeals Commission that he would be making the application. [ 3 ] Mr. Gawne, counsel for Ms.

Sitler, was not notified of this development until November 25, 2002 even though he was in regular correspondence with the Appeals Commission from August onward. He voiced a strenuous objection to granting status to the estate of Dean Morrison. He informed the Appeals Commission of his position in a letter dated December 19, 2002. His letter to the Appeals Commission cannot be taken as a complete argument. He states his position without having an opportunity to develop it. Not having received materials from Mr. Reinhold, counsel for the applicant, one can appreciate why Mr.

Gawne did not develop his argument thoroughly. [ 4 ] On January 13, 2003 Mr. Reinhold sent a letter to the Appeals Commission setting out his position as to why status should be given to his client. No copy of this correspondence was sent to Mr. Gawne. The Appeals Commission did not forward a copy to Mr. Gawne. Instead, the Appeals Commission ruled on this preliminary matter in a decision issued on February 3, 2003. Mr. Reinhold was successful in his application. Somehow, this is not surprising having regard to the fact that Mr. Gawne never saw Mr.

Reinhold ’ s argument nor was he given an opportunity to respond to it. [ 5 ] I found on March 14, 2003 that the Appeals Commission flagrantly breached the rules of natural justice. To only hear argument from the applicant in such a case is inexcusable. No justification for this behaviour can be advanced. [ 6 ] I did not have to decide whether the decision made by the Appeals Commission was correct. It was not necessary to determine the standard of review applicable because of the misconduct of the Appeals Commission.

I did offer an unsolicited opinion that because of a change in legislation their decision was wrong. [ 7 ] Mr. Gawne asked for solicitor and client costs because of the conduct of the Appeals Commission. Mr. Reinhold asked for party and party costs with disbursements. Both asked that these costs be paid by the Appeals Commission because of its misconduct. [ 8 ] Mr. Reinhold shall have his costs. He followed a course of action that he felt was in the best interests of his client. He cannot be faulted for that.

His attendance in Edmonton to argue this matter was required because of the ruling of the Appeals Commission to add him as a party. He shall have his costs for the appearance of the 14th day of March and reasonable disbursements from the Appeals Commission. I still have some difficulty understanding why he did not forward a copy of his letter of January 13, 2003 to Mr. Gawne.

[9] Mr. Gawne raised another argument at the hearing of this matter. He strongly suggested that the way in which the AppealsCommission treated Ms. Sitler would cause any person viewing this matter in a rational and dispassionate fashion to conclude that theAppeals Commission was demonstrating a bias towards her. He argued that the breach of natural justice that I found coupled with thebehaviour of the Appeals Commission which demonstrates a reasonable apprehension of bias creates the special and extraordinarycircumstances that call for solicitor - client costs. [10] Ms.

Hermiston, counsel for the Appeals Commission, acknowledged that Ms. Sitler was treated badly by the AppealsCommission. She conceded that serious mistakes had been made that should not have occurred. She apologized to Ms. Sitler for this inopen court. She is to be commended for that. [11] Ms. Hermiston took the position that the conduct of the Appeals Commission did not approach the scandalous behaviourrequired in order to attract an award of solicitor - client costs. [12] I disagree with this submission.

The Appeals Commission has as its mission statement the following: To provide a timely, fair and independent appeals process consistent with legislation, policy and the principles of natural justice. [13] On four out of the five factors the Appeals Commission has failed. Ms. Sitler wanted an expedited hearing. Her personalcircumstances mandated this approach. She consistently asked to have her appeal processed quickly. Her requests were ignored. Herappeal was not timely. It was not fair or independent as a decision was made to add a party to her appeal who clearly took a positionadverse to her.

This was done without allowing her the opportunity through counsel to make representations in relation to the proprietyof this action. How any adjudicative tribunal could not see how inappropriate this was defies belief. Adjudicative fairness is the goal ofany tribunal in its decision making process. [14] Lastly, I am disturbed by the tone of the brief filed by the Appeals Commission on this appeal. It is adversarial.

It goes farbeyond the function and role that the Appeals Commission should take as envisioned by Justice Slatter in Skyline Roofing Ltd. v.Alberta (Workers Compensation Board) 2001 ABQB 624 , [2001] A.J. No. 985. Justice Slatter reviews the applicablejurisprudence and sets out with clarity the function that should be performed by tribunals appearing on judicial review applications orappeals involving their own decisions. The Appeals Commission did not appear on this matter in order to support its jurisdiction in thenarrow sense of the word.

The case and tone of its brief clearly supported and advanced the position of Mr. Reinhold’s client. Theirarguments were remarkably similar. This is not permissible. Ms. Sitler faced two adversaries in the hearing before me. [15] For the purposes of determining costs, I am comfortable in deciding that the totality of the circumstances leads me to theconclusion that the Appeals Commission behaved in a fashion that has created a reasonable apprehension of bias against Ms. Sitler. Forthat reason she is entitled to solicitor - client costs. HEARD on the 14th day of March, 2003.

DATED at Edmonton, Alberta this 24th day of March, 2003. __________________________ J.C.Q.B.A.