Grant Hart Applicant And: Mohamed Boodhun First Respondent And: Workplace Health, Safety v. Compensation Commission (wORKPLACEnl), 2020 NLSC 146

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hart v. Boodhun , 2020 NLSC 146 Date : November 27, 2020 Docket : 202005G0158 Between: Grant Hart Applicant And: Mohamed Boodhun First Respondent And: Workplace Health, Safety and Compensation Commission (wORKPLACEnl) Second Respondent Before: Justice Glen L.C. Noel On Judicial Review From: A Decision of Workplace Health, Safety and Compensation Commission (WorkplaceNL), dated 4th day of November, 2019. Place of Hearing: Gander, Newfoundland and Labrador Date of Hearing: November 12, 2020

Summary:

Grant Hart applied for judicial review of a Third Party Determination by WorkplaceNL prohibiting his medical negligence action, orcertain aspects of it, against Dr. Mohamed Boodhun. The WorkplaceNL Decision was held to meet the reasonableness standard. The Application was dismissed with no order as to costs. Appearances: Grant Hart Appearing on his own behalf Shane R. Belbin Appearing on behalf of the First Respondent Stephanie M. Sheppard Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: A.T.A. v.

Alberta (Information & Privacy Commissioner), 2011 SCC 61; Reference re Workers’ CompensationAct, 1983 (Nfld.) (1987), (NL CA), 67 Nfld. & P.E.I.R. 16, 206 A.P.R. 16 (Nfld. C.A.); Reference re Reference re:Workers’ Compensation Act, 1983 (Nfld.), (SCC), [1989] 1 S.C.R. 922; Pasiechnyk v. Saskatchewan (Workers’Compensation Board), (SCC), [1997] 2 S.C.R. 890; Warford v. Weir’s Construction Ltd., 2012 NLCA 79; Canada(Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65; Kovach, Re, 2000 SCC 3; Lindsay v. Saskatchewan (Workers’Compensation Board), 2000 SCC 4; Keddy v.

New Brunswick (Workplace Health, Safety & Compensation Commission), 2002 NBCA 24 STATUTES CONSIDERED: Workplace Health, Safety and Compensation Act, R.S.N.L. 1990, c. W-11; Canadian Charter of Rightsand Freedoms,

Part I of the Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11; Judicature Act,R.S.N.L. 1990, c. J-4; Medical Act, S.N.L. 2011, c. M-4.02 REASONS FOR JUDGMENT Noel, J.: INTRODUCTION [1] The Applicant, Grant Hart[1] has applied for judicial review of a Third Party Determination (the “Decision”) by WorkplaceHealth, Safety and Compensation Commission (“WorkplaceNL”) prohibiting his medical negligence action, or certain aspects of it,against Dr.

Mohamed Boodhun (the “Civil Action”)[2]. [2] Boodhun, at all material times, was licensed to practice medicine in the Province of Newfoundland and Labrador as aspecialist in the field of neurology, and a fee-for-service physician with privileges at Central Newfoundland Regional Health Centre inGrand Falls-Windsor. [3] WorkplaceNL is a statutory corporation constituted under the Workplace Health, Safety and Compensation Act, R.S.N.L.1990, c.

W-11 (the “Act”) with a board of directors responsible for administration of the Act and regulations and the establishment ofpolicies and programs consistent with the Act and regulations.[3] background

[ 4 ] The allegations as pleaded in the Statement of Claim in the Civil Action, and the background material in Hart’s WorkplaceNL file, form the factual basis of the WorkplaceNL Decision. The Civil Action alleges that Boodhun negligently delayed diagnosing Mr. Hart with C5-C6 cervical cord impingement. Because of the alleged delay in diagnosis, Hart claims to have suffered personal injury. [ 5 ] In November 2013, Hart fell from one

section of his roof to another while putting up Christmas lights on his split-level home. At the end of January 2014, he saw his family doctor for weak eversion (turning outwards) [4] of his right foot, which was affecting his mobility. His family doctor referred him to Boodhun. [ 6 ] Boodhun first saw Hart on March 11, 2014. Boodhun noted weakness in the right foot and atrophy (decrease in size) of the anterolateral compartment of the right (lower) leg.

He diagnosed Hart with deep peroneal neuropathy (damage or dysfunction to peroneal nerve) secondary to trauma, and advised him to obtain a dorsi (ankle) strap to help him walk. Boodhun saw Hart again on April 9, 2014, for nerve conduction studies, and diagnosed him with neurapraxia (temporary loss of motor and sensory function due to blockage of nerve conduction). [ 7 ] On July 7, 2014, Hart while at work fell and further injured himself when attempting to get up from a seated position. At the time, he was employed as an office manager with Notre Dame Industries. [ 8 ] Mr.

Hart went back to see Boodhun on July 25, 2014. Boodhun noted weakness in Mr. Hart’s triceps muscles and ulnar innervated (forearm) muscles. Boodhun attributed this to involvement of the nerves in the lower brachial plexus as a result of the use of crutches and the July 7, 2014 fall. Boodhun recommended that Hart undergo physiotherapy. [ 9 ] Hart has alleged in the Statement of Claim that he continued to experience issues with his right arm, right hand, and right leg as well as progressive right upper and lower limb weakness. His family doctor referred him to Dr.

Danielle Hussey, a neurologist, who ordered an urgent MRI. [ 10 ] This MRI revealed cervical cord impingement at the C5-C6 with significant cord edema (swelling). Dr. Hussey sent an urgent referral to Dr. Roger Avery, a neurosurgeon. Dr. Avery performed a C5-C6 anterior decompression and fusion with discectomy on October 27, 2014. [ 11 ] Hart applied for, received, and continues to receive benefits from WorkplaceNL in connection with his July 7, 2014, workplace injury.

The claim was accepted as an aggravation of a pre-existing condition of the right upper extremity and neck issues. [ 12 ] Boodhun was the sole director and principal of Dr. M. S. Boodhun PMC. Inc., an incorporated company registered with WorkplaceNL and invoiced for assessment premiums. [ 13 ] Boodhun, through his legal counsel, applied to WorkplaceNL for a determination under

section 46 of the Act that the Civil Action was statute-barred pursuant to

section 44 of the Act . [ 14 ] Despite numerous requests and time extensions by WorkplaceNL, Hart did not make a submission to WorkplaceNL with regard to the merits of the determination. He emailed WorkplaceNL to state he did not recognize WorkplaceNL as having authority over the matter, and that he would only be making submissions to the Supreme Court of Newfoundland and Labrador. [ 15 ] The evidence and submissions were reviewed by the Internal Review Specialist, and in her Decision she determined and certified as follows: 1) Hart was a “worker” within the meaning of

section 2 (

z) of the Act ; 2) Boodhun was an “employer” under

section 2 (

j) of the Act ; 3) Hart’s injuries arose out of and in the course of employment; and 4) The Civil Action “for injuries resulting from medical treatment and/or assessment on or after July 7, 2014 for the aggravation of the right [upper] extremity and neck issues is prohibited by the Act .” POSITIONS OF THE PARTIES [ 16 ] In his Application Hart submitted WorkplaceNL has no constitutional jurisdiction to interfere and determine whether his Civil Action is prohibited, and it is a breach of his Charter of Rights and Freedoms [5] for WorkplaceNL to have any such authority rather than the authority being vested in the Court. [6] He asserts WorkplaceNL has no authority to make determinations respecting physicians.

He further maintains the Decision was unreasonable, and the Court should overturn the Decision and allow his Civil Action to proceed. [ 17 ] Counsel for Boodhun seeks dismissal of the Application on the basis that WorkplaceNL had exclusive jurisdiction to determine whether the Civil Action is barred, and the detailed reasoning demonstrated by the Internal Review Specialist meets fully with the standard of reasonableness. [ 18 ] Counsel for WorkplaceNL confirmed her role is to ensure the completeness of the Record as filed with the Court and to take a neutral position on the merits of the Decision.

Her written Brief focused on the role and jurisdiction of WorkplaceNL; the standard of review to be applied to the Decision and how it is to be applied; and the appropriate form of relief. [ 19 ] Counsel for WorkplaceNL in oral submissions clarified for the Court the Decision is limited to the specific wording of the determination and the stated injuries and symptoms on or after July 7, 2014. Following the submissions of counsel for WorkplaceNL,

and in a surprising twist given his written and earlier submissions, Hart stated to the Court he is not looking for compensation in the CivilAction for what has been determined to be statute-barred. Counsel for Boodhun, however, takes the position that the effect of theDecision is to bar the entire Civil Action. Issues [20] The issues for my consideration are: 1) Did WorkplaceNL have jurisdiction to determine whether the Civil Action, or what aspect of it, was prohibited under the Act? 2) Does the Decision meet the applicable standard of review? 3) What is the effect of the Decision on the Civil Action?

Analysis 1. Jurisdiction of WorkplaceNL to Make Determination on the Civil Action Statutory and Constitutional Considerations [21] WorkplaceNL has exclusive jurisdiction to examine, hear and determine matters or questions arising under the Act as set out insection 19(1) of the Act. [22] Unless the Act provides otherwise, a worker’s claim against a worker or employer for an injury arising in the course of theworker’s employment is barred by

section 44 of the Act. [23]

Section 46 of the Act states where an action for an injury is brought against an employer by a worker, WorkplaceNL “hasjurisdiction upon the application of a party to the action to adjudicate and determine whether the action is prohibited by the Act.” [24] Counsel for Boodhun submits Hart, despite having ample opportunity to do so, chose not to make any submissions and israising the jurisdictional issue for the first time on the judicial review application.

I accept, as a general rule, a court should not exerciseits discretion on judicial review to consider matters not raised and determined by the decision maker: A.T.A. v. Alberta (Information &Privacy Commissioner), 2011 SCC 61 at para. 23. However, to help Mr. and Mrs.

Hart understand the issue he has raised, I took theopportunity at the hearing to explain why he cannot succeed on the jurisdictional issue, and will briefly reiterate here. [25] The constitutional validity of sections 44 and 46 (previously sections 32 and 34) of the Act was previously considered by ourCourt of Appeal in Reference re Workers’ Compensation Act, 1983 (Nfld.) (1987), (NL CA), 67 Nfld. & P.E.I.R. 16,206 A.P.R. 16 (Nfld. C.A.) ss. 32, 34. The Court of Appeal held the statutory bar provisions of the Act do not infringe s. 15(1) of theCharter of Rights and Freedoms.

The decision was upheld by the Supreme Court of Canada: Reference re Reference re: Workers’Compensation Act, 1983 (Nfld.), (SCC), [1989] 1 S.C.R. 922 ss. 32, 34. [26] The guiding case law is clear that decisions regarding the statutory bar are within the exclusive jurisdiction of WorkplaceNL,and it would undermine the purpose and scheme of the system for courts to assume jurisdiction over that question: Pasiechnyk v.Saskatchewan (Workers’ Compensation Board), (SCC), [1997] 2 S.C.R. 890 at para. 42 and Warford v.

Weir’sConstruction Ltd., 2012 NLCA 79 at paras. 39, 40 and 43. [27] I am bound to follow the authorities on this issue and conclude WorkplaceNL had jurisdiction to make the determination. Regulation of and Jurisdiction over Physicians [28] Hart also raises a jurisdictional challenge on the basis that Boodhun is a federally regulated employee and therefore outside thescope of the Act. [29] Physicians are provincially regulated under the Medical Act, S.N.L. 2011, c.

M-4.02. [30] As a provincially regulated area of employment, there was no error in WorkplaceNL accepting that they had jurisdiction todetermine the matter before them. 2. Applying the Applicable Standard of Review to the Decision The Standard is Reasonableness [31] Decisions of WorkplaceNL on whether an action for a workplace injury is prohibited by the Act are to be reviewed by the

Court upon judicial review on the reasonableness standard. The legislature has not prescribed a standard of review or provided a statutory appeal in the Act . The Act contains a privative clause in section 19(2) , which states a decision of this nature “is final and conclusive and is not open to question or review in a court of law.” The legislative intent is to afford the Decision deference. [ 32 ] The law respecting the standard of review has recently been refined by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 .

The Supreme Court held that a presumptive standard of reasonableness should apply to judicial review applications. Since this case does not fall within one of the exceptions outlined in Vavilov where the reasonableness presumption is rebutted, the reasonableness standard applies to all aspects of the Decision: Vavilov at paras. 25 and 69 . Approach to Reasonableness Review [ 33 ] The focus is on the reasons and the existence of justification for the Decision “within a range of possible, acceptable outcomes which are defensible in respect of the facts and law:” Vavilov at para. 86 . [ 34 ] The burden is on Mr.

Hart to show that the Decision is unreasonable: Vavilov at para. 100 . He can do so by showing the reasoning is not rational and logical, or that the Decision is not justified in light of the relevant facts and law: Vavilov at para 101 . [ 35 ] The Decision applied a 3-step analysis to determine that Hart’s claim was statute-barred.

Hart was a Worker at the Time of Injury [ 36 ] I conclude there is nothing unreasonable about the finding Hart was a “worker” on the date of his workplace fall, and “for injuries resulting from treatment for the aggravation of the right upper extremity and neck issues.” Boodhun was an Employer at the Time of Injury [ 37 ] The Decision properly concluded Boodhun is a registered employer with WorkplaceNL and meets the definition of “employer” under the Act . [ 38 ] Hart argues Boodhun was not “an employer” because he was acting outside the “normal operations” expected of a specialist when the alleged misdiagnosis occurred.

This argument would have merit if the injuries from the misdiagnosis were unconnected to Boodhun’s usual business or industry operations: section 44(2) of the Act . [ 39 ] Boodhun is in the business or industry of providing medical services. Any injury from the provision of his medical services is within the scope of usual operations, even if Boodhun negligently performed the services.

The Injuries were Arising Out of and In the Course of Employment [ 40 ] The primary focus of the Decision was on the issue of whether Hart sustained injuries in the course of employment because of the delay and misdiagnosis of the C5-C6 cervical cord impingement pleaded in the Civil Action. [ 41 ] The Internal Review Specialist determined the issue according to the relevant factual considerations, statutory provisions, WorkplaceNL policy, and case law authorities. [ 42 ] The Decision pointed out through Policy EN-19, WorkplaceNL has extended coverage to situations where a worker is further disabled or a subsequent injury occurs while undergoing treatment for the compensable work-related injury.

Hart was injured at work and was required to seek out, and cooperate in, medical treatment and assessment:

section 54.1 (

b) of the Act . [ 43 ] WorkplaceNL accepted Hart’s claim for compensation for an aggravation of the right upper extremity and neck issues arising from the July 7, 2014, workplace fall. Boodhun saw Hart after the workplace injury, and any further disablement or subsequent injury resulting from Boodhun’s treatment is compensable under the Act rather than by way of a civil claim for monetary damages. [ 44 ]

Section 44 of the Act places the emphasis on whether the injured party was an employee, and whether the potential wrongdoer was an employer or employee. The inquiry does not require an employee-employer relationship between Hart and Boodhun. [ 45 ] The Decision relied on two Supreme Court of Canada cases holding that the consequences of medical treatment of a workplace injury are compensable under the workers’ compensation scheme, even if arising from negligent medical treatment: Kovach, Re , 2000 SCC 3 and Lindsay v. Saskatchewan (Workers’ Compensation Board) , 2000 SCC 4 . It referenced Keddy v.

New Brunswick (Workplace Health, Safety & Compensation Commission) , 2002 NBCA 24 , to demonstrate that this appellate authority is consistent with the WorkplaceNL Policy as stated above. [ 46 ] The Decision meets the reasonableness standard for its internally coherent reasoning and justification on the relevant law and facts. 3.

Effect of the Decision on the Civil Action [ 47 ] The Decision did not determine there was a complete bar to Hart’s Civil Action, but only insofar as subsequent injury arising from medical treatment or assessment after the workplace injury of July 7, 2014, for the aggravation of the right upper extremity and neck issues.

The Internal Review Specialist pointed out, “The difficulty in this case is that the Plaintiff’s claim against the Defendant relates to treatment that he received both before and after the work injury.” [ 48 ] The effect of the Decision on the Civil Action cannot be resolved in Hart’s Application for judicial review. None of the authorities submitted deal with the allegation of negligent treatment and misdiagnosis before a workplace injury and the implications on causation. The issues of standard of care and tort concepts of causation are matters for judicial determination in the Civil Action.

[ 49 ] The parties to the Civil Action have leave of the Court to request a Case Management Meeting to address future conduct of the action and necessary procedural steps. costs [ 50 ] Because of the unusual circumstances and the confusion on the part of Hart and Boodhun on the effect of the WorkplaceNL determination on the Civil Action, I am exercising my discretion to make no order as to costs. [ 51 ] I thank counsel for their valuable submissions and Mr. and Mrs. Hart for the respect they demonstrated to counsel and the Court during the hearing.

CONClusion and Order [ 52 ] The Decision in all respects meets the reasonableness standard. Hart’s Application is dismissed with no order as to costs. _____________________________ Glen L.C. Noel Justice