2012 NLCA 14, 2012 NLCA 14

Date: 20120228 Docket: 11/36 Citation: Alberta (Workers’ Compensation Board) v. House, 2012 NLCA 14 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN : WORKERS’ COMPENSATION BOARD of ALBERTA and DEBBIE ATHERTON APPELLANTS AND : JASON DARRELL HOUSE RESPONDENT Coram: Mercer, White and Harrington JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (General) 200904T0028 Appeal Heard: November 18, 2011 Judgment Rendered: February 28, 2012 Reasons for Judgment by Mercer J.A. Concurred in by White and Harrington J.A. Counsel for the Appellants: Daniel M. Boone and Jonathan Dale Counsel for the Respondent: T. James Bennett

Mercer J. A .: [ 1 ] This appeal concerns jurisdictional issues arising in a claim brought by a resident of this province against the Workers’ Compensation Board of Alberta and one of its employees. BACKGROUND [ 2 ] The appellant Workers’ Compensation Board of Alberta (the Board) is a statutory body governed by the Workers’ Compensation Act , RSA 2000, c. W-15 (the Act ), with its headquarters in Edmonton and its board of directors appointed by the Lieutenant-Governor of Alberta in Council.

The Act is applicable to all workers in all industries in Alberta and confers on the Board exclusive jurisdiction to exercise, inquire into, hear and determine all matters and questions arising under the Act . The appellant Debbie Atherton (Atherton) was at all material times an employee of the Board and the case manager responsible for the review of the respondent’s claim under the Act . [ 3 ] The respondent (House) was employed and residing in Alberta when he sustained a workplace injury on February 26, 2005. He fell from a roof resulting in fractures to his skull, back and shoulder.

His claim to the Board for benefits was accepted on the basis of a temporary disability. [ 4 ] A few months after the above-noted injury, House returned to his home at Cow Head in this province, and he has resided in this province since then. In February 2006, while convalescing at home, House fell during a dizzy spell and fractured his left hip. He requested that the Board accept that injury as resulting from his continuing compensable condition. The Board denied that request.

On December 13, 2006 the Board deemed House was fit for employment and terminated his temporary total disability benefits with effect from November 9, 2006. House requested a review of the two foregoing decisions through the appeal procedure established by the Act . The first level of review upheld the Board’s decision, but ultimately, on March 12, 2008, the Appeals Commission determined that the second injury of February 2006 was related to the workplace injury of February 2005 and directed the Board to accept responsibility for the second injury.

With respect to House’s entitlement to benefits after November 9, 2006, the Appeals Commission concluded that the issue required further functional and medical reviews, which recognized that the secondary injury was an accepted condition under House’s claim. The Board was directed to undertake the necessary review and to make a new adjudicative decision on House’s entitlement to benefits beyond November 9, 2006. [ 5 ] The review conducted by the Board did not conclude quickly or without dispute between House and the Board.

Before its completion House commenced modified employment in the offshore oil sector in the summer of 2008 on a probationary basis, which became permanent in November 2008. On February 24, 2009, the Board advised House that he was approved for a wage-loss payment, as his compensable injuries had resulted in medically confirmed permanent work restrictions. LEGAL ACTION [ 6 ] Prior to the decision of the Board in February 2009, House commenced the legal action now before this Court on January 22, 2009, and the statement of claim had been served on the Board on February 2, 2009.

A brief review of the statement of claim will be of assistance: - In paragraphs 2 and 3 service upon the Board and Atherton is stated to be pursuant to the rule permitting service ex juris as the proceeding “is founded upon a tort committed within the province”. - Paragraphs 4–12 outline the events described above up to and including the decision of the Appeals Commission on March 12, 2008. - Paragraphs 13 and 14 then plead the commission of the tort as follows: 13.

In spite of the favourable ruling by the Appeals Commission, the Defendants have steadfastly refused to pay benefits to which the Plaintiff is entitled. The Plaintiff pleads that the refusal by the Defendants to respect the decision of the Appeals Commission constitutes misfeasance in a public office, constitutes an abuse of a public office , and he seeks to recover damages from both Defendants. 14. The refusal of the Defendants to recognize the decision of the Appeals Commission is only one example of the misfeasance and abuse of office of the Defendants.

There are numerous other examples. (Underlining added.) - Paragraphs 15–24 make various factual assertions respecting the dealings between House and the Board, presumably being the other examples of misfeasance and abuse of office.

These paragraphs include reference to his retention of counsel in this jurisdiction and his examination by numerous medical specialists in Ontario and Nova Scotia and by one psychologist in this jurisdiction. - Paragraph 25 states that the Board used surveillance information obtained in this jurisdiction. - Paragraph 27 states that House was denied benefits to which he was legally entitled, resulting in his bankruptcy filing and his receipt of social assistance and thereby causing him unnecessary stress and embarrassment. - House claims an award of compensatory damages of $1.5 million, special damages, and aggravated, exemplary and punitive damages of $1 million. [ 7 ] As indicated by the foregoing

summary House is not seeking any benefits under the Act in this legal action. [ 8 ] On December 8, 2009, the appellants applied for an order staying the action on the primary ground that the superior court of this province lacked jurisdiction and on the alternative ground that the court should decline to exercise jurisdiction as there was a more

convenient forum to determine the matter. DECISION OF THE CHAMBERS JUDGE – DATED FEBRUARY 16, 2011 – 2011 NLTD 25 , 2011 NLTD(G) 25, 304Nfld. & P.E.I.R. 255 (CHAMBERS DECISION) [9] The chambers judge first addressed the issue of territorial jurisdiction. He reviewed the applicable principles and factors asdiscussed in recent cases including Van Breda v. Village Resorts Ltd., 2010 ONCA 84, 98 O.R. (3d) 721; Fewer v. Ellis, 2010 NLTD 35, 2010 NLTD(G) 35, 295 Nfld. & P.E.I.R. 32 (Fewer TD); and Cougar Helicopters Inc. v. Sikorsky Aircraft Corp., 2010NLTD(G) 213, 304 Nfld. & P.E.I.R. 60. The chambers judge followed the

summary of principles stated at paragraph 58 of Fewer TDwhich included the following: … 3. The constitutional limitation of “in the province” and the constitutional imperative of fairness to a non-resident defendant arerespected and satisfied when territorial jurisdiction is exercised only over those proceedings where the forum jurisdiction has a real andsubstantial connection to the subject matter of the proceeding or to the defendant. 4. The “subject matter of the proceeding” refers to the factual context of the primary elements of the event in question.

In a tort casethese would include, for example, the location of the negligent event and the location in which the damages were suffered and perhapstreated. 5. A real and substantial connection to a proceeding may exist in more than one jurisdiction. If so, the issue of the relativeconvenience of proceeding in either jurisdiction will arise for determination. 6.

Consideration of fairness to the plaintiff and other considerations of fairness to the defendant(s) (assuming the existence of a realand substantial connection) are relevant only to the consideration of whether one capable forum is more appropriate than another. [10] In assessing whether there existed a real and substantial connection between the forum jurisdiction and either the subject matterof the proceeding or the defendant the chambers judge stated: 26 … An assessment of the real and substantial connection should focus on the facts as pleaded.

A procedural rule allowing serviceex juris does not, on its own, confer territorial jurisdiction. However, the commission of a tort within this province (one of the basis onwhich Rule 6.07 allows service ex juris) is part of the assessment of any real and substantial connection. 27 The subject matter of the claim as set forth in the pleadings is the alleged wrongful actions of the Defendants, misfeasance andabuse in a public office.

Paragraph 13 of the Statement of Claim implies that the primary complaint of the Plaintiff is the Defendants’refusal to pay benefits for the secondary injury, even after a favorable ruling from the Appeals Commission.

Components of the allegedwrongful conduct, as set out in the pleadings, are decisions of the Defendants taken in Alberta, but many other aspects of the pleadingssuggest a real and substantial connection between this jurisdiction and the subject matter of the claim: ▪ The action is based on a tort said to have been committed in Newfoundland (para. 3); ▪ The secondary injury, which appears to be the flash point for this action, occurred in Newfoundland (para. 7); ▪ All the wrongful deeds alleged against the Defendants occurred while the Plaintiff was residing in Newfoundland (paras. 9, 13, 14,17, 19, 20, 22, 23, 24, 25, and 27); ▪ All the consequences of the alleged wrongs were suffered in Newfoundland (para. 27 -- bankruptcy, stress and embarrassment); ▪ Some of the Plaintiff’s medical and psychological treatments occurred in Newfoundland (para. 22); ▪ At least two of the examples of allegedly abusive conduct occurred in Newfoundland (para. 25 use of private surveillance and para.22 termination of retainer for psychologist). 28 I find that at least part of this claim is founded on a tort committed in Newfoundland, and I find that other aspects of the pleadingsestablish a real and substantial connection between this jurisdiction and the subject matter of the claim.

Accordingly, the first issue isresolved by my finding that this Court does have sufficient territorial jurisdiction to try this action. [11] The chambers judge then addressed whether the Court should decline jurisdiction in the exercise of its discretion pursuant tothe doctrine of forum non conveniens. He cited Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321in which McLachlin C.J.C. indicated at paragraph 14 that the following factors were relevant in determining whether the court shouldaccept a forum non conveniens claim: (

a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or inany alternative forum, (

b) the law to be applied to issues in the proceeding, (

c) the desirability of avoiding multiplicity of legal proceedings, (

d) the desirability of avoiding conflicting decisions in different courts, (

e) the enforcement of an eventual judgment, and (

f) the fair and efficient working of the Canadian legal system as a whole.

[12] In the consideration of those factors in the context of this action the chambers judge concluded that: - considering the likely witnesses there would be expense and inconvenience to either party whatever forum was chosen; - as the action alleges commission of the tort “committed (at least in part) in this province” the Board’s submission that the Act haddetermined the law and forum applicable to the action was rejected. “The law of this particular tort, generic across the country, appliesto these proceedings”: Chambers Decision, paragraph 36; - factors (b) (

c) and (

e) were not in play as there was only one legal proceeding, this was an interprovincial legal proceeding andenforcement of a judgment in Alberta would not be a problem; - factor (

f) was neutral in this case; - while both provinces have equal claims to jurisdiction the domestic forum prevails as the onus was on the Board to establish thatAlberta was the more convenient forum. Chambers Decision, paragraphs 29, 30, 39. [13] The chambers judge, having found that the court had territorial jurisdiction and that jurisdiction should not be declined on thebasis of the forum non conveniens doctrine, dismissed the stay application. ISSUES AND ANALYSIS (

a) Leave [14] The appellants sought leave to appeal the interlocutory decision of the chambers judge. [15] Leave was sought both to appeal the finding of territorial jurisdiction and to appeal the finding that this Court was not a forumnon conveniens. As was explained by Cameron J.A. in Universal Helicopters Newfoundland Ltd. v. Rolls-Royce Corp., 2009 NLCA 58,290 Nfld. & P.E.I.R. 204 at paras. 22–25, the determination whether a superior court has jurisdiction over a matter is a question of lawwhich is reviewable on appeal on the standard of correctness: [25] … Jurisdiction simplicitor is a question of law.

This Court can substitute its own view for that of the Trial Division judge. Wherethe law calls for a weighing of factors, this Court is free to substitute its own opinion. The finding of the chambers judge respecting forum non conveniens involves the exercise of judicial discretion and is reviewable onappeal on the deferential standard set forth in Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (NFCA)as follows: [33] … The court will therefore only interfere with a discretionary order where the judge who made it has exceeded his or herjurisdiction or has failed to apply or has misapplied an applicable principle or made a palpable and overriding error in his or herapplication of the facts, or the failure to interfere would otherwise cause a manifest injustice.

The granting of leave on either issue would not limit the appellants to submissions related to the ground upon which leave was granted:Universal at para. 28. [16] Leave to appeal an interlocutory decision may be granted where: (

a) There is a conflicting decision of another judge or court upon a question involved in the proposed appeal and, in the opinion ofthe Court, it is desirable that leave to appeal be granted. (

b) the Court doubts the correctness of the order in question, (

c) the Court considers that the appeal involves matters of such importance that leave to appeal should be granted. (

d) the Court considers that the nature of the issue is such that any appeal on that issue following final judgment would be of nopractical effect, or (

e) the Court is of the view that the interests of justice require that leave be granted. (Rule 57.02(4), Rules of the Supreme Court, 1986.) [17] It has been decided by this Court that leave may properly be granted where the determination of jurisdiction, particularlyterritorial jurisdiction, is in issue on the grounds set forth in Rule 57.02(4)(

c) and (d). Cameron J.A. stated as follows in Universal: [25] Determination of jurisdiction, including clarity of approach, is of sufficient importance to warrant the granting of leave to appealprior to trial. … [26] The fourth consideration where leave to appeal may be granted is where the Court considers that the nature of the issue is such thatany appeal on that issue following final judgment would be of no practical effect.

All parties agree that an appeal of the issue followingfinal judgment would be of no practical effect if the Trial Division judge erred in deciding that Newfoundland and Labrador was theforum conveniens. If there was an error in the decision respecting jurisdiction simpliciter, the matter is no less problematic as the wholetrial would have been for nothing and even if the trial judge made no error in the conduct of the trial the decision would have to beoverturned. The trial would have to be repeated in another jurisdiction. …

[27] This Court has said that even where one or more of the criteria in Rule 57.02(4) is established, in the final analysis the granting of leave is discretionary. … In light of the foregoing, particularly the fact that one ground is concerned with jurisdiction simpliciter, the fact that a finding of error of jurisdiction at the end of the trial would make any decision be null and void and the uncertainty evident regarding the proper approach to be taken to jurisdiction in this Province, when coupled with the facts that I was not advised that the trial of this action is imminent and an appeal in this Court can proceed relatively quickly, I am satisfied that this is a case where the interest in having the questions raised resolved immediately outweighs the delay which that process will cause. (See also: United Steel, Paper and Forestry, Rubber Manufacturing, Energy, Allied Industrial and Service Workers International Union USW Local 9508 v.

Vale Inco. Newfoundland and Labrador Limited , 2010 NLCA 74 at paras. 10–12 ; Sikorsky Aircraft Corporation v. Lloyd’s TSB General Leasing (No. 20) Limited, 2011 NLCA 49 , 309 Nfld. & P.E.I.R. 143 at paras. 9–11 ( Cougar )). [ 18 ] Similarly in this case the issue of territorial jurisdiction raised by the appellants is pivotal to the granting of leave. The trial could potentially be lengthy, and if the chambers judge was in error respecting jurisdiction, an appeal following trial could result in setting aside a decision in favour of House, if that were the trial outcome.

I am satisfied that the interests of justice therefore warrant granting leave to appeal. (

b) Appeal [ 19 ] The first issue to be addressed is that of territorial jurisdiction. It has long been established in Canada that the superior courts of a province can only assume jurisdiction over an action where there exists a real and substantial connection between the forum jurisdiction and the subject matter of the action or the defendant. See, for example, Beals v. Saldanha, 2003 SCC 72 , [2003] S.C.R. 416 at para. 23 ; Stanway v. Wyeth Canada Inc., 2009 BCCA 592 , 314 D.L.R. (4th) 618.

The legal principles involved and their application have been discussed at length in two recent decisions of this Court – Fewer v. Ellis , 2011 NLCA 17 , 305 Nfld. & P.E.I.R. 39 ( Fewer CA) and Cougar . In Fewer CA, White J.A. analyzed Van Breda v. Village Resorts Ltd. , in which the Ontario Court of Appeal discussed the factors to be considered in determining real and substantial connection. White J.A. summarized the principles applicable in this jurisdiction as follows: [53] The applicable principles may be summarized:

(1) Jurisdiction can be assumed where there is a real and substantial connection between the jurisdiction and the subject matter of the action or the defendant;

(2) In assessing whether jurisdiction is engaged a real and substantial connection can be demonstrated where the strength, relevance and quality of the connections between the jurisdiction and the subject matter of the action or the defendant make it fair to the defendant to assume jurisdiction;

(3) Fairness to both parties is the goal of the analysis, but it does not form an independent factor which must be considered, nor does it trump weak connecting factors; and

(4) The circumstances listed in Rule 6.07(1) are strong indicia of a real and substantial connection, but do not create a presumption that the test has been satisfied. [ 20 ] Fewer CA also affirmed that the onus is on the plaintiff to establish that the real and substantial connection test is satisfied where the defendant disputes jurisdiction. [ 21 ] In this case the chambers decision pre-dated this Court’s decisions in Fewer CA and Cougar .

However, in respect of the issue of territorial jurisdiction, the appellants, correctly in my view, are not contending that the chambers judge erred in stating the general principles applicable to the determination of real and substantial connection. The contention is that the chambers judge erred in his application of the law. [ 22 ] A real and substantial connection had to be established either between the forum jurisdiction and the subject matter or between the jurisdiction and the defendant. The chambers judge focused on the subject matter of the action.

While the chambers judge acknowledged that “components of the alleged wrongful conduct … are decisions of the (Appellants) taken in Alberta” he concluded that other aspects of the pleadings established a real and substantial connection between this jurisdiction and the subject matter of the claim – Chambers Decision, paragraph 27.

The aspects identified by the chambers judge in that referred paragraph and my comments thereon are as follows: - The action is based on a tort said to have been committed in Newfoundland (para. 3) … With respect the above statement merely repeats the allegation of the respondent (House) and offers no factual or legal support to the allegation. - The secondary injury, which appears to be the flash point for this action, occurred in Newfoundland (para. 7) … The location where the secondary injury occurred is of questionable significance as the action does not seek damages for that injury.

The location of the injury is consequent upon the respondent’s decision to resume residence in this province following his workplace injury in Alberta. - All the wrongful deeds alleged against the Defendants occurred while the Plaintiff was residing in Newfoundland (paras. 9, 13, 14, 17, 19, 20, 22, 23, 24, 25, and 27) … The above statement attaches weight to the respondent’s residence in the province while the appellants allegedly engaged in wrongful conduct.

Most of the paragraphs of the statement of claim cited by the chambers judge referred to allegedly improper decisions of the appellants to deny coverage, refuse benefits or ignore material evidence. There was no basis in the pleadings to conclude that any of the

impugned decisions were made other than in the Province of Alberta (the two instances of allegedly abusive conduct in this province are referenced below). - All the consequences of the alleged wrongs were suffered in Newfoundland (para. 27 – bankruptcy, stress and embarrassment) … This factor is related solely to the residence of the respondent, a matter discussed below. - Some of the Plaintiff’s medical and psychological treatments occurred in Newfoundland (para. 22) … This factor can only be relevant if it is connected “to the predominant factual elements of the claim” – Fewer TD at paragraph 57 .

The weight to be attributed to this factor must be affected by the chambers judge’s earlier statement in the recitation of facts that “[t]he Plaintiff’s initial medical treatment was provided while he was still in Alberta. Subsequent medical assessments and treatments were provided by health professionals in Alberta, Ontario, Newfoundland and Nova Scotia”. - At least two of the examples of allegedly abusive conduct occurred in Newfoundland (para. 25 use of private surveillance and para. 22 termination of retainer for psychologist).

Paragraph 25 of the statement of claim states: The Defendants have engaged Private Investigators who have followed the Plaintiff and filmed him and have since purported to use video tapes from these Private Investigators to overrule objective medical findings by trained Medical Professionals using modern medical equipment, including x-ray machines, CT scans, and MRIs. There is no allegation that the surveillance was illegal. Surveillance evidence is gathered regularly in certain tort cases and barring findings of irrelevance or illegality has been admitted into evidence in court proceedings.

The complaint articulated in paragraph 25 is that the appellants used the surveillance evidence to overrule “objective medical findings”. If that allegation is correct the determination whether certain evidence outweighed other evidence was made by the appellants in Alberta.

The termination of the retainer for the psychologist on its face would be a decision made in Alberta, a decision which would only be wrongful if proven to be negligent or willful, either of which relate to the conduct of the appellants in Alberta. [ 23 ] The respondent’s residence in this province, and the damages consequently suffered here, are not decisive in the analysis. In general, a plaintiff’s residence cannot be a significant factor in determining territorial jurisdiction unless that residence is directly related to the factors on which the action is based.

In Fewer TD Fewer sued defendants for damages arising from an assault in Manitoba while Fewer was employed as a teacher there. Fewer returned to this province where he received certain medical treatment. The pleadings did not address the issue of damages suffered in this jurisdiction. Orsborn C.J.T.D. stated: [83] There is no evidence of continuing physical injury or loss that involves the medical or other treatment facilities of this province. To date, the involvement of the medical resources of this province has been minimal. Unlike the situation in Oakley v.

Barry , the province does not have a “significant financial interest in the well-being” of Fewer (para. 46). [84] The claims for economic loss are of course personal to Fewer. But I do not consider these to have a fixed situs as such, at least for the purpose of determining territorial jurisdiction. Unlike the location where physical injury may be suffered, or the location at which resources may be expended to treat injuries, an individual’s economic loss resides with and moves with that individual.

It would be contrary to the need for clarity and certainty to conclude that territorial jurisdiction could be founded on whatever location a plaintiff claiming economic loss happens to be in at the time the claim is initiated. Such an approach would give paramountcy to the residence of the plaintiff, a factor not considered relevant by the authorities referred to previously.

Those authorities, as noted repeatedly, focus on the location of the subject matter of the action – the predominant factual elements - and on any links between the defendant and the jurisdiction in question. [85] In my view, the only connection that this jurisdiction has with the subject matter of this claim is Fewer’s one visit to an [orthopedic] surgeon. In the circumstances of this case as pleaded, this does not represent a substantial connection to the jurisdiction.

Fewer’s status as a resident of this province, and his claim of personal economic loss are not factors that give to this court the territorial jurisdiction over the subject matter of the action. This was upheld on appeal in Fewer CA at paragraphs 56–58 . See also Marren v. Echo Bay Mines Ltd. , 2003 BCCA 298 , 226 D.L.R. (4th) 622. [ 24 ] In this case the action alleges the tort of misfeasance in public office which is an intentional tort having two distinguishing elements: (

i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff. … [A] plaintiff must also prove the other requirements common to all torts. More specifically the plaintiff must prove that the tortious conduct was the legal cause of his or her injuries and that the injuries suffered are compensable in tort law. ( Odhavji Estate v.

Woodhouse, 2003 SCC 69 , [2003] 3 S.C.R. 263 at para. 32 .) [ 25 ] As stated by the chambers judge the primary complaint of the respondent was the appellants’ refusal to pay benefits even after the ruling from the Appeals Commission – Chambers Decision, paragraph 27.

The chambers judge had earlier observed that “the focus of this claim is on the conduct of the [appellants] in administering [the respondent’s] WCB claim and not on the extent of his injuries” – Chambers Decision, paragraph 7. [ 26 ] I conclude from my review of the statement of claim, the Chambers Decision and the applicable law that at the core of this

action is the conduct of the appellants in Alberta in the administration of a workers’ compensation claim consequential upon an injury suffered in Alberta and made pursuant to the statutory scheme established in that province. In these circumstances it cannot be said that the alleged tort was committed in Newfoundland and Labrador. [ 27 ] The only factors connecting the action with this jurisdiction are the respondent’s current residence and the consequential incurring of economic losses in this jurisdiction.

Considering the factual context of the primary elements of the alleged tort, the strength, relevance and quality of the connection to this jurisdiction do not warrant the conclusion that a real and substantial connection exists between this jurisdiction and the subject matter of this action. The courts of this jurisdiction accordingly do not have territorial jurisdiction to try the respondent’s claim. The appeal should therefore be allowed. [ 28 ] In view of the foregoing conclusion it is unnecessary to consider the issue of forum non conveniens.

CONCLUSION [ 29 ] The chambers judge erred in law in finding territorial jurisdiction. The appeal is allowed. The appellants are entitled to their costs on a party and party basis. ______________________ K.J. Mercer J.A. I concur: ____________________ C.W. White J.A. I concur: _____________________ M.F. Harrington J.A.