Duffek v Alberta (Appeals Commission for Alberta Workers' Compensation), 2023 ABKB 18

Court of King’s Bench of Alberta Citation: Duffek v Alberta (Appeals Commission for Alberta Workers' Compensation), 2023 ABKB 18 Date: 20230111 Docket: 2103 16508 Registry: Edmonton Between: Vincent Duffek Plaintiff/Applicant - and - The Appeals Commission for Alberta Workers' Compensation Board and The Workers' Compensation Board Defendants/Respondents _______________________________________________________ Decision of the Honourable Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] This is an appeal by Vincent Duffek from the decision of the Appeals Commission of the Workers’ Compensation Board (the “Commission”) which upheld the decision of the WCB’s Dispute Resolution and Decision Review Body (“DRDRB”) which in turn had upheld the decision of Mr. Duffek’s case worker to reduce Mr. Duffek’s benefits because he had reached retirement age.

Background [ 2 ] Mr. Duffek was injured in a workplace incident on September 22, 2012. Mr. Duffek was working as a sheet metal worker and injured his left shoulder. At the time of the incident, Mr. Duffek was 62 years old. Because of his injuries, Mr. Duffek has never returned to work and has been on compensation ever since. [ 3 ] Mr. Duffek was before the Commission on two previous occasions. In 2016, the Commission accepted responsibility for several left shoulder injuries and sent the claim back to the WCB to determine if Mr. Duffek could return to his pre-injury duties.

In 2019 the WBC accepted responsibility for a further shoulder injury related to the initial 2012 incident. Mr. Duffek received a large retroactive award. The WCB identified that Mr. Duffek had permanent work restrictions and referred the claim back to the WCB for further investigation, assessment, and re-adjudication. [ 4 ] The Mr. Duffek’s case worker, Jason Sidhu, determined that Mr. Duffek was able to return to work as an order desk clerk and based compensation on that position. Mr. Sidhu accepted Mr.

Duffek’s submissions that he had intended to work past age 65 and in a letter dated April 5, 2019 identified his “retirement date” to April 30, 2020. [ 5 ] After the April 20, 2020 “retirement date”, Mr. Sidhu communicated with Mr. Duffek about the planned reduction in his benefits resulting from his reaching that retirement age. Mr. Duffek wanted his full benefits to continue indefinitely and represented that he intended to work past age 70. [ 6 ] The “retirement date” was extended to August 31, 2020, which was Mr. Duffek’s 70th birthday. That change was documented in a letter to Mr.

Duffek dated August 28, 2020, which also indicated that Mr. Duffek’s benefits would be reduced after that date. [ 7 ] Mr. Duffek disagreed with that decision and made further submissions to Mr. Sidhu, but Mr. Sidhu confirmed his decision by letter to Mr. Duffek dated September 23, 2020. [ 8 ] Mr. Duffek appealed that decision to the DRBRB, which confirmed Mr. Sidhu’s decision of September 23. Mr. Duffek then appealed to the Commission, which dismissed his appeal in a decision dated June 10, 2021. [ 9 ] The Commission’s decision has now been appealed to the Court.

Preliminary Jurisdiction Issue [ 10 ] An appeal to the Court of King’s Bench is prescribed by

section 13.4 of the Workers’ Compensation Act , RSA 2000, c W-15 (the “ Act ”): 13.4(1) The Board and any person who has a direct interest in a decision of the Appeals Commission made pursuant to

section 13.2 may appeal the decision to the Court of Queen’s Bench on a question of law or jurisdiction. [ 11 ] Other grounds of appeal may be reviewed on a judicial review application under Rule 3.15: 3.15(1) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review: (

a) an order in the nature of mandamus, prohibition, certiorari, quo warranto or habeas corpus; (

b) a declaration or injunction.

(2) Subject to rule 3.16, an originating application for judicial review to set aside a decision or act of a person or body must be filed and served within 6 months after the date of the decision or act, and rule 13.5 does not apply to this time period.

(3) An originating application for judicial review must be served on (

a) the person or body in respect of whose act or omission a remedy is sought, (

b) the Minister of Justice or the Attorney General for Canada, or both, as the circumstances require, and (

c) every person or body directly affected by the application.

(4) The Court may require an originating application for judicial review to be served on any person or body not otherwise required to be served.

(5) An affidavit or other evidence to be used to support the originating application for judicial review, other than an originating application for an order in the nature of habeas corpus, must be filed and served on every other party one month or more before the date scheduled for hearing the application. [ 12 ] This Rule specifies the procedural requirements for an applicant to invoke the inherent power of a superior court to review decisions of administrative bodies irrespective of statutory appeals and statutory privative clauses. [ 13 ] Counsel for the Workers’ Compensation Board (the “WCB”) notes that statutory appeals are limited to questions of law and

jurisdiction. Both counsel agree that the last word on the standards of review is found in Canada (Minister of Citizenship andImmigration) v Vavilov, 2019 SCC 65 (“Vavilov”). [14] Vavilov is fundamental to understanding the difference between statutory appeals and applications for judicial review.

Para 52states: [52] Third, we would note that statutory appeal rights are often circumscribed, as their scope might be limited with reference to the typesof questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that maybe appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party orparties that may bring an appeal.

However, the existence of a circumscribed right of appeal in a statutory scheme does not on its ownpreclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or byindividuals who have no right of appeal.

But any such application for judicial review is distinct from an appeal, and the presumption ofreasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [15] Questions of law are described by the Supreme Court of Canada in Canada (Director of Investigation & Research) vSoutham Inc, [1997] 1 SCR 748, at para 35: …Briefly stated, questions of law are questions about what the correct legal test is; questions of fact are questions about what actuallytook place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

Asimple example will illustrate these concepts. In the law of tort, the question what “negligence” means is a question of fact. And, once ithas been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standardof care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law andfact on the other is difficult.

On occasion, what appears to be mixed law and fact turns out to be law, or vice versa. [16] Questions of jurisdiction are discussed in Canada (Canadian Human Rights Commission) v Canada (Attorney General),2018 SCC 31 , [2018] 2 SCR 230, at para 31: [31] True questions of vires have been described as a narrow and exceptional category of correctness review (Alberta Teachers, at para.39), confined to instances where the decision maker must determine whether it has the authority to enter into the inquiry before it(Dunsmuir, at para. 59; Guérin, at para. 32).

In this sense, “true” questions of jurisdiction involve a far narrower meaning of“jurisdiction” than the one ordinarily employed. This narrow sense of jurisdiction was emphasized by Dickson J. (as he then was) inCanadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227(“CUPE”), where he warned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, thatwhich may be doubtfully so” (p. 233).

This Court reaffirmed the narrow approach to jurisdiction in Dunsmuir when it explicitly rejecteda return to the jurisdiction/preliminary question doctrine that had “plagued the jurisprudence” (para. 59; see also Halifax (RegionalMunicipality) v Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 34). A departure from thisconstrained understanding of jurisdiction would only risk resurrecting long-buried debates. [17] Appeals on question of fact findings are generally not capable of being appealed or considered on judicial review.

Appeals onquestions of fact generally only arise where there are no limits on the scope of review by the reviewing court such as where the appeal istreated as a hearing de novo.

This goes back to Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 (“Housen”) at para 10: [10] The standard of review for findings of fact is that such findings are not to be reversed unless it can be established that the trial judgemade a “palpable and overriding error”: Stein v The Ship “Kathy K”, (SCC), [1976] 2 S.C.R. 802, at p. 808; Ingles vTutkaluk Construction Ltd., [2000] 1 S.C.R. 298, 2000 SCC 12, at para. 42; Ryan v Victoria (City), (SCC), [1999] 1S.C.R. 201, at para. 57. While this standard is often cited, the principles underlying this high degree of deference rarely receivemention.

We find it useful, for the purposes of this appeal, to review briefly the various policy reasons for employing a high level ofappellate deference to findings of fact. [18] True questions of jurisdiction do not arise frequently. Appeals on questions of fact alone are doomed to failure absentlegislation mandating hearings de novo on appeal or permitting appeals on questions of fact and law. Where statutory appeals allowappeals on questions of fact, the standard of review is “palpable and overriding error”.

This is recognized in Housen and Vavilov. [19] Questions of procedural fairness are treated as questions of law or questions of mixed fact and law, going back to Baker vCanada (Minister of Citizenship and Immigration), (SCC) (“Baker”). Those are described in Alberta (Workers’Compensation Board) v Alberta (Workers’ Compensation Board Appeals Commission), 2005 ABCA 276 at paras 22, 27 and 28: [22] The Supreme Court confirmed this distinction in Housen v Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at paras 27-31.

In thatcase the Court noted that questions of mixed fact and law involve the application of a legal standard to a set of facts; conversely, errors oflaw involve an incorrect statement of the legal standard, or a flawed application of the legal test. An example of the latter occurs when adecision-maker only considers factors A, B, and C, but the test also requires factor D to be considered.

The Court also acknowledged anexception to the distinction between questions of law and questions of mixed fact and law, when it is possible to extricate a pure legalquestion from what appears to be a question of mixed fact and law: at para 34. [27] Consequently, this Court has frequently interpreted the words “law or jurisdiction.” In doing so, we have consistently refused toconsider questions of mixed fact and law under the rubric of questions of law or jurisdiction. The words “law or jurisdiction” have beenconfined to their ordinary and grammatical meaning.

See Pachanga Energy Inc. v Mobil Canada Energy Inc. (1993), 1993 ABCA 372, 149 A.R. 73 at para. 4 (C.A.); R. v Wells (2004), 361 A.R. 256, 2004 ABCA 371 at paras. 2-4; R. v Seath (1999), 48 M.V.R.(3d) 11, 1999 ABCA 347. In ATCO Gas v Alberta Energy and Utilities Board, 2005 ABCA 122 at para. 55, this Court held that whenthe governing legislation grants a right of appeal on questions of law or jurisdiction, questions of mixed fact and law are not appealableunless there is an extricable legal question. This

interpretation is consistent with Housen, supra. [28] The Legislature’s choice of the words “law or jurisdiction” in s. 13.4(1), and the well-recognized distinction between questions oflaw and questions of mixed fact and law, lead to the logical conclusion that the Legislature did not intend to provide a statutory right of

appeal for questions of mixed fact and law. The only exception is when a pure legal question can be extricated from a question of mixed fact and law. Even then, only the pure legal question will be considered. [ 20 ] Ironically, in that case it was the WCB that argued that the Court should treat questions of “mixed fact and law” as being synonymous with questions of law for the purposes of the Court’s jurisdiction on a statutory appeal. [ 21 ] The WCB lost that argument, and the Alberta Court of Appeal drew a clear distinction between questions of mixed fact and law and questions of either law or jurisdiction.

Questions of mixed fact and law could no longer be considered to be questions of law and could not be reviewed on a statutory appeal under the Act . [ 22 ] That has been the law in Alberta governing statutory appeals from decisions of the Commission since 2005. [ 23 ] As a result, a person wishing to challenge a decision of the Commission has two separate ways of proceedings: a statutory appeal or an application for judicial review. A statutory appeal alone only permits reviews on the basis of law or jurisdiction. It does not include any review on questions of fact or on questions of mixed fact and law.

The latter are solely for judicial review applications. [ 24 ] The Alberta Court of Appeal recognized that in Patras v Alberta (Workers’ Compensation Board) , 2014 ABCA 117 at paras 26 and 27 : [26] Since the introduction of the statutory right of appeal in

section 13.4 of the WCA in 2002, courts have generally insisted on properly characterizing an application as a judicial appeal or judicial review: see Alberta (Workers’ Compensation Board) v Appeals Commission , 2005 ABCA 276 , 371 AR 318 at para 18 ; and Sarcee Gravel Products Inc v Alberta (Workers’ Compensation Board) , 2006 ABQB 56 , 394 AR 74 at paras 9-12 . There is good reason for this.

For example, the form of originating application and service requirements are somewhat different for statutory appeals and judicial review applications: an application for judicial review requires service on the Attorney General while there is no similar requirement for a statutory appeal under the WCA. In considering a statutory appeal, the reviewing court must also be wary of issues of fact or mixed fact and law that have been dressed up as issues of law: Shuchuk at para 21.

Nevertheless, this court’s statement at paragraph 14 of Alberta (Workers' Compensation Board) v Buckley , 2007 ABCA 7 , 401 AR 231 is determinative in these circumstances: …where the right of appeal and the application for judicial review would both be to the same tribunal (the Court of Queen’s Bench), [...] there is no reason why judicial review on a question of law or jurisdiction should not be available notwithstanding the right of appeal. The standard of review will be the same whether the matter is brought forward by judicial review, or by way of appeal: Dr.

Q. v College of Physicians and Surgeons of British Columbia , [2003] 1 S.C.R. 226, 2003 SCC 19 , at para. 21 . Therefore, in these circumstances it is not always necessary for the court to recast the proceedings under Rule 753.16 [now Rule 3.2(6)], although that rule confirms that the form of the application is no impediment to the relief applied for.

Thus the form of the application before the Court of Queen’s Bench is not of any significance in this matter. [27] The appeal judge in this case stated in obiter that he would have invoked the saving provision in rule 3.2(6) had he found a technical defect in the proceedings and that, in any event, he would have come to the same conclusion on judicial review as he did on the appeal. As such, the form of commencement is not relevant now. No one was prejudiced by the fact the proceedings were commenced as an appeal.

Notably, the limitation period for both judicial review and an appeal under the WCA is the same. [ 25 ] A similar approach to questions of mixed fact and law has been confirmed in Ontario in Tall Ships Development Inc v Brockville (City) , 2022 ONCA 861 . There, the chambers judge dealt with a statutory appeal from three arbitration decisions. The Ontario Arbitration Act permitted appeals on questions of law only unless otherwise agreed by the parties. The chambers judge held that questions of mixed fact and law were questions of law for the purposes of the Arbitration Act .

She had also characterized the same questions as breaches of procedural fairness. She ultimately quashed the three arbitration awards. [ 26 ] The Ontario Court of Appeal overturned the chambers judge’s decision and restored the arbitration awards. The parties’ arbitration agreement limited appeals to questions of law. In dealing with the chambers judge’s characterization of the grounds of appeal, the Ontario Court of Appeal noted at para 40: [40] Against this context is the standard of review applicable to the

interpretation of contracts. In commenting upon the role of appellate courts in reviewing the proposed grounds of appeal from a commercial arbitration award, the Supreme Court cautioned in Sattva , at para. 54: [C]ourts should be cautious in identifying extricable questions of law in disputes over contractual

interpretation. Given the statutory requirement to identify a question of law in a leave application pursuant to s. 31(2) of the AA, the applicant for leave and its counsel will seek to frame any alleged errors as questions of law. The legislature has sought to restrict such appeals, however, and courts must be careful to ensure that the proposed ground of appeal has been properly characterized. [ 27 ] When asked for his comments on the WCB’s procedural challenge, Mr.

Quraishi advised that he stood by his Notice of Appeal and he did not make any applications for amendments to it or to specifically add an application for juridical review. [ 28 ] Why all of this is important is that the law in Alberta relating to judicial reviews and statutory appeals requires that each ground of appeal be characterized as to whether it is an error of law, an error of jurisdiction, or a question of mixed fact and law. If it is an error of law or jurisdiction, the standard of review is correctness.

Denials of procedural fairness are errors of law ( Baker and Vavilov ). [ 29 ] Since Vavilov, errors of

interpretation of the tribunal’s home statute are subject to a reasonableness review and are not considered to be errors of law for the purpose of determining the standard to be applied. That presumption is rebuttable in limited, specified circumstances. If the error is a question of mixed fact and law, the standard of review is reasonableness. [ 30 ] Essentially, the correctness standard is one that frees the reviewing court from any deference to the board or tribunal appealed from. That becomes extremely important when the alleged error is a question of

interpretation of the home statute. The reasonableness

standard is a standard requiring deference and is a more onerous standard to meet. [ 31 ] By way of example, the reviewing court may conclude that the board or tribunal erred in its

interpretation of its home statute, but absent several exceptions, the reviewing court can only interfere with the tribunal’s

interpretation if it finds the

interpretation to be unjustifiable. [ 32 ] Errors of mixed fact and law and errors of

interpretation of the tribunal’s home statute are reviewed using the reasonableness standard. The reasonableness standard has not changed significantly since Dunsmuir v New Brunswick , 2008 SCC 9 . In that case, the Supreme Court described reasonableness at para 47: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 33 ] At para 15 of Vavilov , 11 years later the reasonableness standard was described again: [15] In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified.

What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. [ 34 ] Vavilov also makes it clear (at para 23) that there is a presumption of the use of the reasonableness standard with respect to decisions from boards and tribunals.

The onus of proving unreasonableness is on the appellant. [ 35 ] To determine if there are any procedural deficiencies affecting this appeal, the first step is to determine the nature of each ground of appeal. If all of the issues raised are to be reviewed on the correctness standard, then there would be no concern that only a statutory appeal was filed. If, however, any of the issues may only be reviewed for reasonableness, then the absence of an application for judicial review is problematic. [ 36 ] Mr. Duffek argues that there are three issues: 1. Did the Commission err in the

interpretation and application of Section 24(1), Section 24(4), Section 56(11) and (12) of the Act , WCB policy 04-04 and relevant provisions and policies; 2. Was the Commission decision procedurally unfair?; and 3. Did the Commission fail to comply with the rules of natural justice by not giving proper weight to the medical evidence presented before them? [ 37 ] Mr. Quraishi, for Mr. Duffek, describes the application as a Statutory Appeal/Judicial Review Application and argues that the appropriate standard of review for the case is correctness. [ 38 ] His arguments, however, focus on reasonableness.

I can understand the WCB’s concern that Mr. Duffek’s statutory appeal does not allow for any application of the reasonable standard of review. Questions of law and questions of jurisdiction are only reviewable on the correctness standard. [ 39 ] The thrust of Mr. Quraishi’s argument relates to the

interpretation of the Act , WCB Policy 04-04 and other WCB policies and procedures. Since these form part of the Commission’s home legislation, the presumptive standard is reasonableness. [ 40 ] To get to the correctness standard and avoid deference to the Commission, one of the exceptions described at para 17 of Vavilov must be proved: The first (exception) is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review.

It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied.

This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. [ 41 ] The burden of proof to rebut the presumption of reasonableness is on the party seeking to rebut the presumption. Here, Mr. Duffek has not done so. [ 42 ] Firstly, has the legislature prescribed a different standard of review in the Act ? The answer is, no. The legislature has prescribed no standard to apply.

The Act speaks of errors of law and jurisdiction but says nothing about the standard of review. The

default thus is to see what the Supreme Court of Canada or the Alberta Court of Appeal have said on the subject. That is presumptively reasonableness. [ 43 ] Secondly, does the “rule of law” requires that the correctness standard apply? That exception has categories: (

a) Constitutional questions; (

b) General questions of law of central importance to the legal system as a whole; and (

c) Questions of jurisdiction between two or more administrative bodies. [ 44 ] The Supreme Court did not intend the exceptions to be finite (see para 69). They recognized that some circumstances may warrant a new exception where “failure to apply correctness review would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described in these reasons.” ( Vavilov at para 70 ). [ 45 ] The answer to these questions is, there are no Constitutional questions raised here.

There are no general questions of law of central importance to the legal system as a whole. This appeal concerns the treatment of Mr. Duffek’s claim under the provisions of the Act . The Commission interpreted the Act , WCB policy and WCB procedures. No general questions of law were engaged by them or are engaged on this appeal. And there are no jurisdictional conflicts or issues. [ 46 ] As to the “new” ground, there is nothing in the Commission’s decision or about this appeal or Mr.

Duffek’s underlying claim that could undermine the rule of law depending on the outcome of this appeal. [ 47 ] For statutory and policy

interpretation issues, the standard of review is thus reasonableness. The reasonableness standard applies to questions of mixed fact and law as discussed above. [ 48 ] Procedural fairness issues and issues over the rules of natural justice would be reviewed on the correctness standard. [ 49 ] Thus, on the pleadings as they stand, Mr. Quraishi’s arguments as to correctness cannot be entertained on a statutory appeal. They are “reasonableness” issues are only raised in judicial review applications under Rule 3.14. [ 50 ] Mr.

Quraishi’s Originating Application was styled “Notice of Appeal/Reference under an Enactment.” It references Form 5 and Rule 3.2. That properly engages the statutory appeal, but as discussed above permitted issues will not attract a reasonableness standard for review unless one of the exceptions discussed above applies. None applies. [ 51 ] To be able to argue reasonableness, Mr. Duffek needed to file an originating application under Rule 3.14 requires the use of Form 7. [ 52 ] The WCB is correct in arguing that the Applicant’s pleadings are deficient.

Procedurally, there is nothing before the Court that would allow him to argue that the decision of the Commission was unreasonable. [ 53 ] This stated, since Chauvet in 2007, the failure to file appropriate pleadings for appeals from the Commission has been routinely ignored or cured as there is rarely any prejudice that results from adherence to the requirements of Rule 3.14. [ 54 ] Most recently, Zarooben v Workers’ Compensation Board , 2021 ABQB 232 considered the different remedies available by way of statutory appeal and judicial review.

There, the appellant only filed a notice of statutory appeal and did not expressly seek judicical review (as is the case here). At para 29, Loparco J referenced Chauvet v Alberta ( Workers’ Compensation Board , Appeals Commission) , 2007 ABCA 155 : … the failure to seek both remedies is uncommon and invariably inadvertent. [ 55 ] The WCB does not raise any prejudice here and I see none.

The appropriate remedy in a situation like this is to deal with the procedural irregularity when dealing with costs. [ 56 ] I will proceed to deal with the Appeal/Reference as though it included a proper application for judicial review. Grounds of Appeal/Review 1. Did the Commission err in the

interpretation and application of Section 24(1), Section 24(4), Section 56(11) and (12) of the Act , WCB policy 04-04 and relevant provisions and policies? [ 57 ] This ground is to be reviewed on standard of reasonableness.

The Applicant has not satisfied the onus of demonstrating that any of the exceptions under Vavilov apply. [ 58 ] To the extent that this ground involves questions of mixed fact and law (the application of the law to the facts), those issues too are to be reviewed on the standard of reasonableness. [ 59 ] At the outset, the WCB emphasized the point that an appeal from the DRDRB operates as a hearing de novo before the Commission. The Commission is not required to give any deference to the decision of the DRDRB or indeed the decision from the WCB Officer that led to the appeal to the DRDRB.

The Commission may receive new evidence or information regardless of whether it could

have been presented to the Officer or the DRDRB. Sections 13.1(1) and 13.2 of the Act and

section 4.1 of the Commission’s Rules make that clear. [ 60 ] The WCB is entitled to make policies and procedures consistent with the objections of the Act (

section 6 ). Of key importance is WCB policy 04-04, which deals with permanent disability benefits.

Section 10 is the WCB’s policy as to “what is considered sufficient and satisfactory evidence that a worker would have continued to work past age 65?” [ 61 ] It states: As with any adjudicative issue, the decision will be made on the balance of probabilities.

Workers are not required to provide absolute proof, however, there must be some independent evidence that the worker intended to work after age 65, and would have done so if not for the compensable injury. [ 62 ] The policy gives examples of what might be satisfactory independent evidence including: • Confirmation from the worker’s accident employer, union, or other independent employment source that the worker had planned to continue after age 65 and employment was available; • Continued employment post-age 65 at the same level and earnings as pre-age 65… • Continued employment post-age 65 at reduced earnings… • WCB will consider any other relevant factors such as the normal retirement age for workers in the same pre-accident occupation. [ 63 ] The Record establishes that when Mr.

Duffek succeeded in his appeal from earlier denials of his claim that the additional shoulder injury was related to the original claim, he received compensation retroactive to the date of the incident in 2013.

Commission decision 2018-0404 determined that the WCB had responsibility for a left shoulder problem under the original claim and sent that issue back to his Officer for further investigation, assessment and re-adjudication. [ 64 ] On April 5, 2019, the Officer issued the Applicant an Economic Loss Supplement (“ELS”) (sometimes referred to by the Commission and the WCB as an “ELP”) for the period March 1,2013 to December 18, 2018, and extended it to Mr. Duffek’s anticipated retirement date of April 30, 2020. The letter noted that the ELS would be reduced as of that date.

In that decision, the Officer was influenced by mortgage debt information provided to him by Mr. Duffek. That decision was not appealed. [ 65 ] In 2020, the Officer and Mr. Duffek communicated about the looming reduction in ELS benefits and the information the Officer needed to consider a later retirement date. Mr. Duffek and the Officer had been corresponding about information from Mr. Duffek’s union which had not yet arrived. [ 66 ] An August 5 email from the Officer to Mr. Duffek says “please follow up with the union as we will need more information from them to support the ongoing ELP past 70.

If they can provide us with information that there are several sheet metal workers working past age 70 then this would be exactly the type of information to support your ongoing ELP.” [ 67 ] Mr. Duffek notified the Officer on August 27, 2020 that he needed some time to provide information supporting a later retirement date. [ 68 ] On August 28, 2020, the Officer notified Mr. Duffek that his ELS benefit would be reduced on August 31, 2020. The Officer noted that Mr. Duffek turned 70 on August 22, 2020. [ 69 ] The letter from Mr. Duffek’s Union was sent to the Officer on September 3, 2020. [ 70 ] By a letter to Mr.

Duffek dated September 23, 2020, the Officer confirmed his decision to reduce the ELS benefit effective August 31, 2020. [ 71 ] Mr. Duffek then requested that the Officer’s decision be reviewed. It was reviewed by the DRDRB, which confirmed the Officer’s decision. He then appealed that decision to the Commission. This is the appeal of the Commission’s decision on their appeal from the DRDRB. [ 72 ] Mr.

Quraishi takes issue with the Commission’s decision that there was “no satisfactory independent evidence to support the Applicant’s own evidence that he would have worked past age 70 had the accident not occurred.” [ 73 ] He argues that all the Commission did was provide some details in its decision, but the decision was not based on reasoning that was both rational and logical. [ 74 ] Mr. Quraishi notes that the underlying injury occurred when Mr. Duffek was 62 years old. He had never indicated to anyone that he intended to retire at age 65.

Accordingly, “it naturally follows that the Applicant did not intend to retire at or beyond age 70”. [ 75 ] Mr. Quraishi argues that it was unfair to Mr. Duffek that the Officer did not extend the time for Mr. Duffek to provide evidence to him. Initially, that was acknowledged by the Officer, but he eventually made the decision without waiting for the information from the Union. He submits that was unfair, inequitable, and maladministration. [ 76 ] When the letter from the Union did arrive, Mr Quraishi says it was ignored.

The letter dated September 3, 2022 stated that the Union “has 7 members who are 70 years or older still working through the hall.” Mr. Quraishi says that this letter “supports the Applicant’s position that he would still be working past age 70”.

[ 77 ] The Commission’s Decision states at para 22: We note that there is no confirmation from the worker’s union that the worker intended to work after age 70 and would have done so if not for the compensable injury. We acknowledge that in a telephone conversation with a WCB case manager that the worker indicated he still belonged to a union.

However, we find that such is not an independent confirmation from the union that he intended to work past age 70. [ 78 ] The decision continued at para 23: We note that there is no confirmation from another independent employment source that the worker intended to work past age 70, and would have done so if not for the compensable injury. [ 79 ] Mr.

Quraishi argues that these paragraphs in the Decision show that the Commission erred by requiring the Applicant to provide both a letter from his employer and his Union. [ 80 ] He notes that Rule 4.6(2) of the Commission’s Appeal Rules requires the Commission to “consider all relevant evidence submitted by a party that relates to the appeal”. [ 81 ] As a result, he argues that the Commission “failed to recognize this inadequacy” and its consequences such that their decision is unjustified and unreasonable in that it: • Failed to apply facts and law in a rational and reasonable manner; and • Failed to consider all of the relevant evidence in accordance with its Rules. [ 82 ] Mr.

Quraishi notes that at para 32 of the Decision, the Commission stated: When asked at the hearing, the worker confirmed that he has not worked since on or about January 2013. That is, we are satisfied that he has not continued employment post-age 70, or for that matter even to age 65.

Accordingly, this example of satisfactory independent evidence was not met.” [ 83 ] He argues: That analysis is irrational as the Commission failed to consider that the Applicant’s compensable injuries were preventing him from going back to work or securing any type of employment and his disablement was prolonged through no fault of his own.

Accordingly, the Commission erred in applying the standard of review of correctness and reasonableness and its decision lacks rationality internal to the reasoning process is untenable in light of the relevant facts and legal constraints that bear on it and is diametrically opposed to what a reasonable decision should be.” [ 84 ] A further argument is that the Decision is not justifiable as it failed to correctly analyze the evidence before it and ignored the Applicant’s submissions. The Decision does not reflect the gravity of impact on Mr. Duffek.

Where the impact of a decision is severe, the reasons provided to the individual “must reflect the stakes”, quoting Vavilov at par 18 , quoting from Baker . [ 85 ] Mr. Quraishi continues that the Decision is not justifiable as current trends show that more and more people are working past age 65 (citing the 2015 Canadian Census). [ 86 ] Mr.

Quraishi references para 47.4 of the Decision, where the Commission stated: We also note that there is an absence of any other financial planning document generated before the compensable injury, which indicated that the worker intended to work past age 70, and would have done so but for the compensable injury. [ 87 ] That, he says, shows that the Commission failed to consider, interpret, and apply the relevant regulation, legislation, policy, and case law specific to the appeal issues. [ 88 ] Mr.

Quraishi submits that Policy 04-04 does not specify that the intent to work past age 65 must have been expressed prior to the compensable accident. [ 89 ] Ultimately, Mr. Quraishi argues that the Applicant satisfied the requirement of Policy 04-04 by providing a letter from his Union, and that the Commission failed to assign appropriate weight to the letter and the Applicant’s other evidence. [ 90 ] Next, Mr. Quraishi argues that section 56(11) and (12) should be interpreted as requiring compensation “during the worker’s lifetime”.

He argues that these sections were not considered or properly applied by the Commission in its evidentiary findings.

He says that the Commission “failed to apply a plain citation of the statute, which renders its decision unfair and unreasonable.” [ 91 ] He further argues that the Commission “failed to acknowledge that its decision must reflect the expressed, implied spirit and intention of the legislation” and “be in line with the statutory purpose of the workers’ compensation legislation. [ 92 ] Mr Quraishi concludes by arguing that “there is sufficient evidence to demonstrate that the Applicant would have continued to work after the age of 70.” The Commission’s decision was procedurally unfair and did not comply with the rules of natural justice in the failure to consider the evidence, interpret and apply the relevant provisions of the Act , as well as the expressed and implied spirit and intention of the legislation.” [ 93 ] He asks the Court to restore Mr.

Duffek to his former ELS benefits. [ 94 ] Mr. Duffek relies on the following authorities:

Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; Zarooben v Workers’ Compensation Board, 2021 ABQB 232, 2022 ABCA 50; Martin v Alberta (Workers’ Compensation Board), 2012 ABCA 248; McLaughlin v Appeals Commission for Alberta Workers’ Compensation, unreported, August 6, 2020, Edmonton 1603-21044 (ABQB); Elgie v Alberta (Workers’ Compensation, Appeals Commission), 2009 ABCA 277; Pasiechnyk v Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 SCR 890; Dowling v Prince Edward Island (Workers’ Compensation Board), (PEISCAD), 7 CCEL (2d) 157; and Shuchuk v (Alberta Workers’ Compensation Board), 2007 ABCA 213. [95] The WCB response, while lengthy, can be summarized as follows: 1.

Mr. Duffek’s allegation that he was denied natural justice and that there wereprocedural errors is not a true question of law but is rather one of mixed fact and lawand reviewable on the reasonableness standard. [96] They agree that to the extent Mr. Duffek’s complaints that the Commission failed to consider and completely ignored theevidence provided by the Applicant are questions of law, they should be reviewed on the correctness standard. [97] However, the WCB says that Mr.

Duffek’s complaints do not raise a genuine issue of law as the Record and the Decisiondemonstrate that the Commission received and considered all evidence submitted by the Applicant. [98] The WCB argues that Mr. Duffek’s issue is really about how the Commission interpreted or weighed the evidence, which is amatter of substantive fairness and not procedural fairness. That then becomes a question of mixed fact and law and reviewable onlythrough judicial review on the reasonableness standard. [99] They point to the Decision. where all of Mr.

Duffek’s evidence and arguments were dealt with and say they Commission’sDecision on these issues was reasonable. The WCB argues that the Commission satisfied all requirements of procedural fairness as setout in Baker. The Commission followed its own rules of procedure for appeals. 2.

The allegations that the Commission failed to interpret and apply the Act and WCBpolicy and procedures attract the reasonableness standard as the WCB wasinterpreting its home legislation. [100] The WCB argues that the substantive complaints about misinterpretation are really complaints about the application of thelegislative provisions and the weighing of the evidence on those issues (benefits after age 70. A review of the Decision shows that theCommission’s

interpretation and application of the relevant legislation, policy and procedures were reasonable, and that the Applicanthas not met the burden of proof on him to show otherwise. 3.

The Decision was reasonable. [101] The WCB submits that a review of the Decision when read as a whole satisfies the criteria in Vavilov and meets thereasonableness standard. [102] In support of their arguments, they cite: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, ; Canada (Director of Investigation & Research) v Southam Inc, [1997] 1 SCR 748, ; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; Law Society of Saskatchewan v Abrametz, 2022 SCC 29; Alberta (Workers’ Compensation Board) v Alberta (Workers’ Compensation Board Appeals Commission), 2005 ABCA 276; Edmonton (City of) v Edmonton Police Association, 2020 ABCA 182; Elgie v Alberta (Workers’ Compensation Board Appeals Commission), 2009 ABCA 277; Gezehegn v Alberta (Workers’ Compensation Board), 2021 ABCA 93; Goold v Alberta (Child and Youth Advocate), 2011 ABCA 63;

Johnson v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 345; Medicine Hat (City) v Wilson, 2000 ABCA 247; Michailides v Alberta (WCB), 1999 ABQB 941, aff’d 2003 ABCA 49; Patrus v Alberta (Workers’ Compensation Board), 2014 ABCA 117; Shuchuk v Alberta (Workers’ Compensation Board), 2007 ABCA 213; Thompson Brothers (Construction) Ltd v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 78; Vallette v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 12, leave to SCC denied, (SCC); Georgopoulos v Alberta (Workers’ Compensation Board, Appeals Commission), 2022 ABKB 633; Matys v Alberta (Appeals Commission for Alberta Workers’ Compensation), 2021 ABQB 542; Vo v Alberta (Workers’ Compensation Board, Appeals Commission), 2006 ABQB 899; and Zarooben v Workers’ Compensation Board, 2021 ABQB 232, aff’d 2022 ABCA 50. [103] Counsel for the Commission filed a Brief, which dealt with the Commission’s standing on an appeal or review from a decisionas well as on the appropriate standard of review to be applied to each issue.

They relied on a number of cases, focusing on Vavilov andthe Alberta Court of Appeal decision in Workers’ Compensation Board v Workers’ Compensation Board Appeals Commission. [104] It is not necessary for me to refer to the cases cited by them as their submissions essentially paralleled the submissions of theWCB. Analysis [105] The Applicant’s main procedural complaints are that he was denied a fair hearing because the Commission did not accept hisevidence as to his intention to work past age 80, and that the Commission did not accept his arguments as to the

interpretation of the Actand Policy 04-04. Procedural unfairness by Officer in not waiting for Union letter [106] Mr. Quraishi raised in oral argument that it was procedurally unfair that the Officer did not give Mr. Duffek enough time to geta letter from the Union as suggested by the Officer. Instead of giving additional time, the Officer confirmed his decision to reduce theELS benefits without waiting for the Union’s letter. [107] The record shows that what actually happened was that after the August 28, 2020 decision letter, the Officer received the Unionletter of September 3.

Following that, he confirmed his earlier decision by his letter of September 23. [108] The DRDRB then reviewed the decision on appeal, and the Commission ultimately reviewed and considered the Union letter. [109] As discussed above, the appeal to the Commission is a hearing de novo and not an appeal on the record from the DRDRB. TheApplicant was entitled to bring further evidence and make additional submissions to the Commission. [110] Any procedural unfairness was corrected by the Officer when he reconsidered his August 28 decision on receipt of theSeptember 3 Union letter.

No further information was obtained from the Union for the purposes of the appeal to the Commission, andthe Record shows that the Commission reviewed and considered that evidence. [111] No procedural error has been demonstrated by the Applicant, and no unfairness by the Commission has been shown. Procedural/Natural Justice failure by Officer to change his mind on receipt of Unionletter [112] Mr. Quraishi also complains that Mr. Duffek was denied procedural fairness because the Union letter gave the exactinformation the Officer suggested he get. Essentially, Mr.

Duffek says he did what he was told to do, and the Officer reneged on what hehad told Mr. Duffek earlier. [113] Mr. Duffek might well feel that he was dealt with unfairly.

He may have concluded from the Officer’s email that a letter fromthe Union would be conclusive of his entitlement to an unreduced pension. [114] However, is clear from the Officer’s reconsideration after receipt of the Union letter that the letter did not change the Officer’smind from the decision he had made in late August without the benefit of the letter. [115] I do not see that as a procedural issue but rather one that goes to the reasonableness of the decisions below. It was not expressly

argued that the Officer’s suggestion to Mr. Duffek as to what evidence he might try to present bound the Officer and by extension theWCB to accept that evidence as conclusive of the underlying issue of Mr. Duffek’s intention to work past age 70. [116] This issue was argued on the appeal to the DRDRB and rejected there. [117] The facts do not create any procedural unfairness or denial of natural justice by the Commission as the appeal to theCommission was de novo.

These complaints relate to procedural fairness by the Officer and the DRDRB. [118] In any event, the Applicant’s concern about his treatment by the Officer was noted and dealt with by the Commission in itsdecision at paras 42-45. [119] I agree with the Commission’s conclusion that these issues were not relevant to the appeal to them. In making their conclusionthe Commission was considering its policies and the Act. That decision is reviewed for reasonableness. [120] The Commission identified the issue and the relevant facts, and their conclusion is justified by the reasons they expressed.

Theirpath to their decision is logical and transparent. [121] This ground of appeal/review must fail. Age policy 04-04 does not apply [122] Mr. Duffek relies on section 56(11) and (12) of the Act. Those sections now say:

(11) Compensation for permanent total disability and permanent partial disability is payable to the worker during the worker’s lifetimeand must not be less than (

a) in the case of permanent total disability, $1640.90 per month, and (

b) in the case of permanent partial disability, a proportionate part of $1640.90 per month based on the Board’s estimate of theimpairment of earning capacity from the nature and degree of disability.

(12) Compensation for temporary total disability and temporary partial disability is payable to the worker only as long as the disabilitylasts, and compensation for temporary total disability must be (

a) where the worker’s bi weekly net earnings are greater than the sum referred to in subsection (11)(a), the greater of (

i) the sum referred to in subsection (11)(a), and (ii) the bi weekly equivalent of the amount that the worker would have received under subsection (10) had the worker been permanentlytotally disabled, and (

b) where the worker’s bi weekly net earnings are equal to or less than the sum referred to in subsection (11)(a), 100% of those bi weeklynet earnings. [123] At the time Mr. Duffek’s benefits were reduced, these provisions were subsections 7 and 8, which were essentially identical tothe current wording but for the amount in 11(

b) having been increased to $1640.90 from the amount of $900.00 in 7(b). [124] Mr.

Quraishi references the opening words of subsection 11: “Compensation for permanent total disability and permanentpartial disability is payable to the worker during the worker’s lifetime”. [125] He argues that once it has been determined that a worker has a permanent total or permanent partial disability they are entitledto full compensation, without reduction. [126] The Commission rejected that argument on the basis that the worker is receiving an ELP or ELS payment for his lifetime, basedon Policy 04-04. [127] As with the concerns over the actions of the Officer, the Commission identified the issue, noted the specific legislation andinterpreted the legislation and their policy (which they were bound to follow). [128] Their conclusion that a lifetime pension as referenced in the Act is subject to the provisions of WCB Policy 04-04 is to bereviewed on the reasonableness standard.

Their reasoning is transparent and logical and justified by looking at the underlying legislationand policy, which bound the Commission. [129] Mr.

Quraishi’s argument ignores the rest of subsection 11(7) that provides for minimum compensation, and in the case ofpermanent partial disability, a formula for determining what the minimum payment must be. [130] Treating the formula for a worker suffering from permanent partial disability and the resulting payment to be lifetimecompensation was reasonable. [131] A plain meaning of the wording is that a disabled worker is entitled to something for their lifetime, but the wording does notguarantee that their awards cannot be adjusted in accordance with the rest of the Act or WCB policy made pursuant to the Act. [132] It appears that Mr.

Duffek is trying to reargue Vallette Estate v Alberta (Appeals Commission for Alberta Workers’Compensation), 2012 ABCA 12, leave to SCC denied, (SCC) (“Vallette”).

[ 133 ] In that case, the worker was 62 at the time of his injury. A deemed retirement age of 69 was set, and he received full compensation to that date. As at that date, the WCB administrative process recalculated Mr. Vallette’s ELS on the basis of Policy 04-04. That resulted in a significantly reduced payment. Mr.

Vallette appealed to the Appeals Commission and then he appealed their decision to the Court, claiming that Policy 04-04 was ultra vires and alternatively that the Commission’s decision was unreasonable. [ 134 ] The Court of Appeal held at paras 24-26: [24] The impugned policy in the case at bar clearly relates to compensation policy and is, therefore, prima facie intra vires . In my view, it is not facially inconsistent with the Act . I hold that the policy can indeed be grounded in the enabling statute.

I express no opinion as to its wisdom or appropriateness… [25] The WCB’s discretion to issue impugned Policy 04-04,

Part II, Application 3 to address the method of estimating the compensable impairment of a partially disabled worker’s earning capacity under s. 56 is sustainable. It is important to bear in mind that at the time of the worker’s deemed retirement, the ELP is still based on the compensation rate established in the case at bar at $900 per month. As the Appeals Commission properly noted, “what changes is the worker’s loss of earning capacity arising from the worker’s retirement from employment”.

Moreover, in compliance with the Act , the resulting reduced ELP after the date of deemed retirement continues to be paid “during the course of the worker’s lifetime.” [26] Under the Act , while totally disabled workers are entitled to an unreduced compensation payment at retirement, the fundamental principle is that impairment of earning capacity is compensable if it is brought about by the work related disability.

When a worker elects to retire or is deemed to have retired, the diminution in earning capacity is attributable to a voluntary or imposed cessation of employment unconnected to any work related accident and, as such, is no longer compensable. I accede to the argument of the Respondent Board that to hold otherwise would be to place a partially disabled worker receiving an unreduced ELP beyond age 65 in a better position than a retired worker who was never injured. I agree that such a windfall was not within the contemplation of the legislature.

Nor would such a result accord with the object and purpose of workers’ compensation. Weighing the evidence [ 135 ] There was nothing procedurally unfair about the proceedings. The Commission cannot be said to have ignored the Applicant’s evidence because they addressed it. On each of the key points argued by the Applicant, the Commission gave reasons and an explanation for why they did not accept each point. They did not simply give conclusions. [ 136 ] The thrust of Mr. Quraishi’s arguments really comes down to the submission that the Commission failed to give appropriate weight to Mr.

Duffek’s evidence. [ 137 ] A secondary argument in that regard is that it was unreasonable for the Commission to require evidence from the time of the underlying injury (some 8 years earlier) that the worker intended to work past age 65. [ 138 ] These are issues to be reviewed for reasonableness. [ 139 ] The recent decision in Matys v Alberta (Appeals Commission for Alberta Workers’ Compensation) , 2021 ABQB 542 , also dealt with ELS payments beyond age 65. There, Hayes-Richards dealt with an earlier version of Policy 04-04, although any differences in that Policy and the Policy applicable to Mr.

Duffek are not relevant. [ 140 ] Justice Hayes-Richards summarized the intent of the Policy at para 27: [26] The ELS is payable until the compensable earnings loss ends, or the worker reaches the presumed retirement age of 65, whichever happens first. The ELS ends when the worker reaches age 65 unless there is sufficient and satisfactory evidence to show that the worker would have continued to work past that age if the injury had not occurred: WCP Policy 04-04,

Part II, Application 5, Questions 4 and 5. [27] The presumed retirement age can be rebutted by adducing independent evidence that the worker intended to work past age 65. The decision is made on the balance of probabilities and while workers are not required to provide absolute proof, there must be some independent evidence that the worker intended to work after age 65, and would have done so if not for the compensable injury.

The Policy sets out a non-exhaustive list of examples of satisfactory independent evidence capable of meeting this threshold, including: • Confirmation from the worker’s accident employer, union, or other independent employment source that the worker had planned to continue after age 65 and employment was available • Continued employment post-age 65 at the same level and earnings as pre-age 65 • Continued employment post-age 65 at reduced earnings, when it is clear the reduction in earnings is caused by a deterioration of the compensable work restrictions, rather than a personal choice of semi-retirement [ 141 ] After reviewing the Record and hearing argument, Justice Hayes-Richards concluded at para 43: [43] The Appeals Commission’s Decision was intelligible, transparent and justifiable, and the conclusion reached fell within a range of possible, acceptable outcomes defensible in respect of the facts and law: Vavilov at para 86 . [ 142 ] In this case, I am satisfied from the Decision that the Commission was aware of the Union letter dated September 3, 2020 in summarizing the worker’s representative’s “key submission”: [13.1] The WCB requested that the worker obtain more information from his union to support the ongoing ELP past 70, which was provided to it in the form of a September 3, 2020 letter.

The WCB case manager wrote an email, which indicated that if such information was provided that the worker would receive an unreduced ELP.

[13.2] However, the WCB case manager proceeded to reduce the worker’s ELP without waiting for the information… [ 143 ] No additional evidence or information was sought to be provided to the Commission. Mr. Duffek and his representative were allowed to fully present their evidence and arguments. [ 144 ] Mr.

Duffek’s evidence as to working past age 70 was: • His testimony that he planned to work past age 70; • The Union letter saying that it had 7 members over 70 who were “on the list”; and • An undated mortgage statement showing that the principal balance on the mortgage was $200,586.21. [ 145 ] Information provided to the Commission indicated that Mr. Duffek had not worked in any capacity since the injury in 2012. He had been working as a sheet metal worker at the time of his injury, and he had been assessed by the WCB as being capable of working in more sedentary positions, such as a small tool repair worker.

His earnings loss was based on him being able to work in that capacity. Mr. Duffek told Officer on July 24, 2020 that he still belonged to the Union. In August 2020 he told the Officer that he wasn’t interested in looking for sedentary type work because he “is not an office guy”. [ 146 ] On August 27, Mr. Duffek told the Officer that he wasn’t totally disabled but that he wasn’t willing to work at low wages. [ 147 ] Mr.

Duffek confirmed to the Commission at the hearing that he had not worked since the initial injury in 2012. [ 148 ] In background information provided to the Commission, the Commission was aware that Mr. Duffek had told the Officer in a telephone conversation on February 21, 2019 he intended to work to age 70. He told the Officer that he was “hoping to work until 70”. He said then that he was “not sure how else to prove that retiring at 70 was his plan”.

He had tried to get confirmation of this from his employer, but they had nothing on file and the supervisor he communicated with had passed away. [ 149 ] He later told the Officer in a March 19, 2019 phone call that he “would have continued to work for as long as possible and had agreed to this verbally with his employer”. [ 150 ] As noted by the Commission in its decision at para 40, he told a WCB vocational services worker in February 2013 that since he was “near retirement” he was hesitant to pursue any long-term training options. All of this comes from the record which was familiar to Mr.

Duffek. [ 151 ] The Commission considered all of this evidence. [ 152 ] They also considered a number of other factors: • That there was nothing “independent” to corroborate Mr. Duffek’s stated intention to work past age 70; • That the Union letter spoke only of a few other members working past age 70 and said nothing about Mr. Duffek or opportunities for him; • That there was no information from any former employer about Mr. Duffek working past 70 (or 65 for that matter); • That Mr. Duffek had chosen not to work after the injury although he was not totally disabled; • That Mr.

Duffek had not worked past age 65 although he was not totally disabled; • That Mr. Duffek had not actively looked for work and was not actively working for work • That the mortgage statements did not support them being a financial plan of some sort or constitute evidence that Mr. Duffek intended to work past 70; and • That Mr.

Duffek had made contradictory statements about his intentions to the Officer. [ 153 ] The Commission recognized in the Decision that the burden of proof rested with the Applicant and their decision was to be made on a balance of probabilities. [ 154 ] They stated that “there must be some independent evidence that the worker intended to work after age 65 and would have done so if not for the compensable injury”. [ 155 ] That statement reflects the Commission’s

interpretation of sections 9 and 10 from Policy 04-04. Since their decision essentially recites the wording of those sections, it could not be said that their

interpretation was unreasonable or that they wrongly directed themselves as to their task. Relying on that standard cannot be considered unreasonable. [ 156 ] As for the Decision itself, they stated the task before them and described the standards they intended to apply. They reviewed the evidence, including all of the evidence the Applicant put before them. The considered the arguments made to them by the Applicant. They gave reasons for rejecting the Applicant’s arguments.

Their process and decision-making were transparent. [ 157 ] The Commission clearly considered the Applicant’s own evidence that he intended to work past 70 (paras 37-40). [ 158 ] The Commission clearly considered the Applicant’s statement that he continued to be a member of the Union as well as the Union’s September 3 letter (at paras 34-36).

[ 159 ] The Commission clearly considered the Applicant’s mortgage statements and their impact on his intention to work (at paras 24- 29). [ 160 ] They considered and dealt with Mr. Quraishi’s submissions before them and gave reasons as to why they rejected them. [ 161 ] They expressly dealt with Mr. Quraishi’s submissions about considering the Applicant’s financial situation as at the date of the reduction in the ELS at age 70. [ 162 ] The Commission also dealt with Mr. Quraishi’s arguments on legislative intent and the

interpretation of

section 56. [ 163 ] All of this supports the argument that the Commission’s decisions on all of these issues were reasonable. They stated the facts, conducted an analysis, and drew inferences from the facts they found. [ 164 ] Importantly, there is a logical, understandable path to their decision. The onus was on Mr. Duffek. He provided no independent information to corroborate his stated intention to keep working. He had contradicted himself as to his intentions in discussions with the Officer. The Union letter did not address Mr. Duffek’s intentions or opportunities.

The mortgage documents did not satisfy the Commission that Mr. Duffek’s mortgage was a factor that demonstrated an intention to continue working. Commitments at the time of the proposed reduction [ 165 ] As for the Applicant’s submission that the WCB should look at the worker’s financial planning and commitments as at the time of the proposed reduction to the ELP, the Commission dealt with this at para 47. This argument related to Mr. Duffek’s mortgage obligations, which had been considered by the Officer when he accepted that Mr. Duffek intended to work past age 65 and to age 70.

They obviously understood the argument, and stated that commitments undertaken after the injury would not be “independent”, stating at para 47.2: …a worker could incur any debt after the accident, and state that he intended to work past 65 in the case of the example in policy, or 70 in the case at hand, regardless of whether he had formed the intent prior to the compensable accident. Such is not consistent with our

interpretation of WCB Policy 0404… [ 166 ] This statement demonstrates the path the Commission took to its decision. The mortgage statement originally relied on by the Officer was a pre-injury statement that showed a mortgage maturity date in early 2018. They noted that the WCB had paid an unreduced ELS for over two years past the maturity date.

Conclusion [ 167 ] The Commission’s analysis on all issues was logical, transparent and justifiable. [ 168 ] Vavilov at para 102 says: …the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived…” [ 169 ] I am satisfied that this is what the Commission did. [ 170 ] They did not do what Mr. Duffek argues.

The Commission did not “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion”, as warned against later in para 102. [ 171 ] Saying that reasoning was both irrational and illogical is one thing, but proving it is quite another.

The Applicant has failed to demonstrate any irrationality in the Commission’s reasoning, or any lack of logic. [ 172 ] There might have been a path to victory for the Applicant, but the fact that the Commission took a different path and explained why they did so in an intelligible way does not entitle the Court to intervene. [ 173 ] As a result, Mr. Duffek’s application and appeal are dismissed. Heard on the 2 nd day of December, 2022. Dated at the City of Edmonton, Alberta this 11 th day of January, 2023. Robert A. Graesser J.C.K.B.A.

Appearances: Viqar Quraishi, K.C. for the Vincent Duffek Peter Giraldeau for The Appeals Commission for Alberta Workers' Compensation Board Megan Schaub for The Workers' Compensation Board