2012 NBCA 49, 2012 NBCA 49

COURT OF APPEAL OF NEW BRUNSWICK 162-10-CA ROGER LEBLANC APPELLANT ROGER LEBLANC 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 - and - - et - XSTRATA CANADA CORPORATION, XSTRATA ZINC DIVISION – BRUNSWICK MINE INTERVENOR XSTRATA CANADA CORPORATION, XSTRATA ZINC DIVISION – BRUNSWICK MINE INTERVENANTE LeBlanc v. Workplace Health, Safety and Compensation Commission and Xstrata Canada Corporation, 2012 NBCA 49 LeBlanc c.

Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail et Xstrata Canada Corporation, 2012 NBCA 49 CORAM: The Honourable Chief Justice Drapeau The Honourable Justice Larlee The Honourable Justice Richard CORAM : L’honorable juge en chef Drapeau L’honorable juge Larlee L’honorable juge Richard Appeals Tribunal established under the Workplace Health, Safety and Compensation Commission Act : August 13, 2010 Appel d’une décision du Tribunal d’appel établi en vertu de la

Loi sur la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Le 13 août 2010

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: March 26, 2012 Appel entendu : Le 26 mars 2012 Judgment rendered: June 7, 2012 Jugement re ndu : Le 7 juin 2012 Counsel at hearing: For the appellant: Roger LeBlanc appeared in person with the assistance of Inka Milewski For the respondent Workplace Health, Safety and Compensation Commission: Charles A. LeBlond, Q.C.

For the respondent Xstrata Canada Corporation, Xstrata Zinc Division – Brunswick Mine: Matthew Letson and David M. Brown Avocats à l’audience : Pour l’appelant : Roger LeBlanc a comparu en personne avec l’aide d’Inka Milewski. Pour l’intimée la Commission de la santé, de la sécurité et de l’indemnisation des accidents au travail : Charles A. LeBlond, c.r. Pour l’intervenante Xstrata Canada Corporation, Xstrata Zinc Division – Brunswick Mine : Matthew Letson et David M. Brown THE COURT The appeal is allowed without costs.

The decision of the Appeals Tribunal is set aside and a new hearing is ordered before a differently constituted panel. LA COUR L’appel est accueilli sans dépens. La décision du Tribunal d’appel est annulée et il est ordonné à un comité différemment constitué de tenir une nouvelle audience. The following is the judgment delivered by

THE COURT I. Introduction [ 1 ] From 1979 to 1996, Roger LeBlanc, now 68, was employed with the mining operations of Xstrata Canada Corporation, Xstrata Zinc Division – Brunswick Mine. Certain health issues caused him to leave his employment and he has not returned to work. In 2006, blood tests revealed heavy metals in Mr. LeBlanc’s body and, as a result, he underwent chelation treatments, first in Ontario and then in New Brunswick. Mr. LeBlanc contends he is afflicted with heavy metal toxicity and that this condition is related to his employment with Xstrata.

His application to the Workplace Health, Safety and Compensation Commission for reimbursement of all chelation-related outlays was rejected on the ground the level of lead in his system did not amount to an industrial disease. [ 2 ] Mr. LeBlanc appealed the Commission’s rejection of his claim to the Appeals Tribunal. Unable to secure the services of a lawyer to represent him at the hearing, Mr.

LeBlanc asked that a friend with expertise on the subject of lead poisoning be allowed to question the medical expert upon whose opinion the Commission relied for its contention that he was not suffering from lead poisoning. Xstrata objected, and the request was effectively denied. Ultimately, the Appeals Tribunal dismissed Mr. LeBlanc’s appeal. The denial of cross-examination by the friend mentioned above is central to Mr. LeBlanc’s appeal to this Court and, for the reasons that follow, is the sole ground we need to address.

In our view, the underlying complaint is well founded and suffices to set aside the Appeals Tribunal’s decision and to order a new hearing. II. Background, Analysis and Decision [ 3 ] In the proceedings before the Appeals Tribunal, Mr. LeBlanc was represented by a workers’ advocate. In pre- hearing discussions, she indicated that Inka Milewski, the Science Advisor and Director of Health Watch for the Conservation Council of New Brunswick, who was helping Mr. LeBlanc in her personal capacity, would be assisting in the cross-examination of the Commission’s medical expert, Dr. Sidney Siu.

This was met with vehement opposition on the part of Xstrata, as is evidenced by the following portion of its counsel’s letter dated July 29, 2009: Also, during our discussions with the Appeal Panel, [the workers’ advocate] indicated that Mrs. Milewski would be “cross-examining” Dr. Sidney Siu. We cannot emphasize strongly enough that such conduct would be inappropriate and prejudicial, and that we have no intention of allowing Dr.

Siu to be questioned by [the workers’ advocate’s] witness. [Emphasis added] [ 4 ] The letter does not explain how Xstrata would, in any way, be prejudiced by having someone with relevant scientific knowledge question Dr. Siu. Strangely, he was seen by the Commission as an “independent expert” and it belies comprehension how Xstrata would have any control over who might be entitled to cross-examine him. It should go without saying that it is the Appeals Tribunal, not counsel for the employer, which is invested with the power to determine process. At one point, Mr.

LeBlanc took issue with the Commission’s position that Dr. Siu was an “independent expert”, as indicated in a letter dated October 5, 2009. Xstrata’s assertion that it had “no intention of allowing Dr. Siu to be questioned” by Ms. Milewski, certainly added fuel to that argument. [ 5 ] On November 23, 2009, the workers’ advocate wrote to the Appeals Tribunal advising that Ms. Milewski would be attending as a “witness” for Mr. LeBlanc at the upcoming hearing. The letter specifically outlines Ms.

Milewski’s role: “to monitor the medical/scientific information which will be provided by the employer and its witnesses, ask questions of expert witnesses and provide any answers or clarification the panel members may request.” Evidently, Ms. Milewski was not being called as a “witness” in the traditional sense of the word. Rather, the expectation was that she would provide assistance as an advocate. This is evident from the letter’s description of her role. [ 6 ] On December 9, 2009, the employer reiterated its opposition to Ms. Milewski’s participation in the hearing.

In a letter to the Appeals Tribunal, Xstrata’s counsel wrote: We also note [the workers’ advocate’s] statement that a witness, namely Ms. Milewski, will “ask questions of expert witnesses”. We wish to advise that we will object to any such proposed questioning by Ms. Milewski as she is not a party to the Appeal.

[ 7 ] The letter does not explain why it would be necessary for one to be a party to an appeal in order to act as an advocate. Moreover, no policy or procedure of the Appeals Tribunal has been produced that would purport to limit who may be heard as a party’s representative. To the contrary, the March 2010 Appeals Tribunal Guidelines specifically state that “a party to an appeal may be represented by an advocate or an agent” (s. 17(1)(a)). Xstrata had indicated that its counsel would cross-examine any witness called to testify on behalf of Mr. LeBlanc. Yet, Xstrata purported to deny Mr.

LeBlanc the opportunity to have someone with an understanding of the underlying science question the medical expert on whose evidence the Appeals Tribunal was invited to base its rejection of the claim. [ 8 ] The hearing before the Appeals Tribunal was held on April 16, 2010. The workers’ advocate appeared on Mr. LeBlanc’s behalf, but made plain at the outset she had no “background to interpret all the medical documents” in the file.

This acknowledgement of inadequacy was repeated before the Appeals Tribunal and became obvious as the hearing progressed. [ 9 ] The Appeals Tribunal hearing was loosely structured. “Witnesses” were not sworn and their “testimony” was not required to follow the format one traditionally sees in a court of law. At the hearing in this Court, counsel for the Commission recognized this and invited us to give procedural guidance to the Appeals Tribunal. However, the informal procedure the Appeals Tribunal adopted in this case is not the basis of Mr. LeBlanc’s appeal.

Moreover, that procedure’s conformity with the law was not fully debated before us. We therefore decline to address that issue in these reasons. Mr. LeBlanc’s first ground of appeal targets what he sees as the unfairness of a process that did not allow him to be represented by an advocate of his choice. [ 10 ] At one point in the hearing, Ms. Milewski was asked to make a statement to the panel members, but it is unclear whether she was intending to testify or to simply make arguments on behalf of Mr. LeBlanc. In any event, she was certainly unable to proceed as she had hoped.

Counsel for Xstrata repeatedly interrupted Ms. Milewski’s representations, challenging her credentials and her role in the proceeding. In the course of one of these interruptions, counsel for Xstrata argued Mr. LeBlanc could only have one advocate: You can’t have your cake and eat it too. You have one advocate. The company has one advocate […] Not surprisingly, no rule of law or procedure was cited in support of the proposition that Mr. LeBlanc was entitled to only one advocate at the hearing. No such rule was cited because it is simply not so. As it turns out, Ms.

Milewski did effectively “testify”, although not under oath, and she was cross-examined by counsel for Xstrata. [ 11 ] Once the case was presented on behalf of Mr. LeBlanc, counsel for Xstrata made an opening statement. It is one that is littered with assertions of fact and one might well question, as Mr. LeBlanc does, whether counsel was herself testifying. [ 12 ] Dr. Siu’s testimony followed the opening statement. He was first questioned by Xstrata’s counsel. Following this, the workers’ advocate was asked if she had any questions and, after a short break, she declined the opportunity to ask any.

At this point, Mr. LeBlanc was asked if he had any questions. He went on to ask a few disjointed questions that clearly betrayed his inability to suitably confront the witness. Dr. Siu’s testimony was highly technical and, evidently, beyond the comprehension of someone with Mr. LeBlanc’s level of education and working background. In our judgment, it should have been apparent to the Appeals Tribunal that Mr. LeBlanc had no grasp of the issues and was utterly incapable of properly challenging Dr. Siu’s testimony. [ 13 ] The Chair of the panel then asked Dr.

Siu a few questions, but the transcript again reveals repeated interventions by counsel for Xstrata. In some instances, one is left to wonder who was in fact testifying. Indeed, in one intervention, counsel for Xstrata actually instructs Dr. Siu to respond to a particular question posed by the Tribunal and, in another, she suggests the answer. [ 14 ] On August 13, 2010, the Appeals Tribunal rendered a decision dismissing Mr. LeBlanc’s appeal and upholding the Commission’s denial of the benefits sought. It is that decision which is the subject of the present appeal.

[ 15 ] Among his grounds of appeal, Mr. LeBlanc contends he was denied a fair hearing. We agree with that submission, having regard to the particular circumstances of the case at hand . In our respectful judgment, this was a case where the Appeals Tribunal should have allowed Ms. Milewski to question Dr. Siu, who testified that Mr. LeBlanc had never suffered from lead poisoning and had wasted time and money in following the recommendations of the doctors he had consulted by taking chelation treatments. While it is true Mr.

LeBlanc was accompanied by a workers’ advocate, it is plain that she was overwhelmed by the technical/scientific evidence offered by the Commission and Xstrata to justify the rejection of Mr. LeBlanc’s claim. Plainly, the playing field was anything but level. While it might have been prudent for Mr. LeBlanc or the workers’ advocate to renew, at the hearing, the request to allow Ms. Milewski to cross-examine Dr. Siu, that request had been previously made to the Appeals Tribunal and it was never formally ruled upon. In fact, the Appeals Tribunal invited cross-examination by the workers’ advocate and Mr.

LeBlanc, but did not extend that opportunity to Ms. Milewski. It should have been abundantly clear to the Appeals Tribunal that Dr. Siu’s testimony was potentially determinative of the issues, and that neither Mr. LeBlanc nor the workers’ advocate was capable of mounting any serious challenge to its reliability. [ 16 ] Justice must not only be done, it must also appear to be done. The Appeals Tribunal is required to decide cases on the merits.

It is also required to conduct its hearings in a manner that leaves no reasonable doubt in the fair-minded observer’s assessment that neither side has the upper hand for reasons unrelated to the merits. This is even more so where the case involves an unrepresented and unsophisticated claimant litigating against both the Commission and the employer, the latter being represented by experienced counsel. All in all, we are satisfied Mr. LeBlanc is entitled to a new hearing before a differently constituted panel of the Appeals Tribunal. III. Disposition [ 17 ] For these reasons, the appeal is allowed.

The Appeals Tribunal’s decision is set aside and we order a new hearing before a differently constituted panel. There is no order of costs. ___________________________________ J. ERNEST DRAPEAU, CHIEF JUSTICE OF NEW BRUNSWICK ____________________________________ M.E.L. LARLEE, J.A. __________________________________ J.C. MARC RICHARD, J.A.