Paul Creelman Appellant v. Nova Scotia Workers ’ Compensation Appeals Tribunal, the Workers ’ Compensation Board of Nova Scotia, the Attorney General for the Province of Nova Scotia, v. the Department of National Defence, 2012 NSCA 26

NOVA SCOTIA COURT OF APPEAL Citation: Creelman v. Nova Scotia (Workers ’ Compensation Appeals Tribunal), 2012 NSCA 26 Date: 20120308 Docket: CA 336665 Registry: Halifax Between: Paul Creelman Appellant v. Nova Scotia Workers ’ Compensation Appeals Tribunal, the Workers ’ Compensation Board of Nova Scotia, the Attorney General for the Province of Nova Scotia, and the Department of National Defence Respondents Judge: The Honourable Justice Peter M. S. Bryson Appeal Heard: January 31, 2012 Subject: Suspension of temporary earning replacement benefits ( “ TERB ” ) under s. 78(1) of the Workers ’ Compensation Act , S.N.S. 1994-95 c. 10, as amended, while appellant, Mr. Creelman was incarcerated.

Summary: Mr. Creelman was receiving TERB for a back injury. He was incarcerated for eight months during which time his TERB was suspended. His appeal to a hearing officer was dismissed. At his appeal before the Workers ’ Compensation Appeals Tribunal ( “ WCAT ” ), he led evidence that he had a co-dependant common law spouse. He argued that his benefits should have been re- directed to her instead of suspended. Mr. Creelman was given leave to appeal on whether WCAT erred in law in not considering redirection of TERB.

Issue: Did WCAT err in law in not considering whether TERB benefits should have been redirected to a common law spouse? Result: Appeal dismissed. WCAT made no error of law. WCAT heard evidence of a dependant spouse. No finding of dependant spouse was made. Section 78(1) allowed suspension of TERB while Mr. Creelman was incarcerated. There was a discretion under s. 78(1) (

c) to redirect benefits to a dependant. WCAT considered the evidence. It made no order that the claim be reconsidered.

WCAT gave reasons why discretion should not be exercised. WCAT ’ s

interpretation of s. 78(1)(

c) in light of the evidence had an intelligible basis and resulted in a reasonable outcome. This information sheet does not form part of the court ’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 9 pages. NOVA SCOTIA COURT OF APPEAL Citation: Creelman v. Nova Scotia (Workers ’ Compensation Appeals Tribunal), 2012 NSCA 26 Date: 20120308 Docket: CA 336665 Registry: Halifax Between: Paul Creelman Appellant v.

Nova Scotia Workers ’ Compensation Appeals Tribunal, the Workers ’ Compensation Board of Nova Scotia, the Attorney General for the Province of Nova Scotia, and the Department of National Defence Respondents Judges: Oland, Fichaud and Bryson, JJ.A. Appeal Heard: January 31, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A.; Oland and Fichaud, JJ.A. concurring Counsel: Kenneth H. LeBlanc and Vanessa Nicholson, for the appellant

Alexander MacIntosh, for the Respondent, Nova Scotia Workers ’ Compensation Appeals Tribunal Madeleine F. Hearns, for the respondent, Workers ’ Compensation Board of Nova Scotia Melissa Chan, for the respondent, the Attorney General of Canada Edward A. Gores, Q.C., for the respondent, the Attorney General of Nova Scotia, not participating Reasons for judgment : [ 1 ] Paul Creelman has suffered a number of work-related back injuries. The most significant occurred on March 24, 1991. He was then working for the Department of National Defence. The Workers ’ Compensation Board ( “ WCB ” ) has paid Mr.

Creelman Temporary Earnings Replacement Benefits ( “ TERB ” ) arising from his back injury. [ 2 ] Between August 2006 and April 2007 Mr. Creelman was incarcerated following a criminal conviction. [ 3 ] By decision of October 30, 2009, a WCB case worker determined that Mr. Creelman ’ s TERB should be suspended during the period he was incarcerated, in accordance with s. 78(1) of the Workers ’ Compensation Act , S.N.S. 1994-95, c. 10, as amended (the “ Act ” ). The case manager noted that there was no evidence that Mr. Creelman had any dependants during this time. Mr. Creelman retained legal counsel and appealed.

In denying the appeal, the Hearing Officer again observed that Mr. Creelman had no dependants: With respect to the year 2006, the Worker received benefits from January 1 until August 6, at which time he was incarcerated. Benefits were then suspended to April 2007, when the Worker was released from prison.

Section 78 of the Act states that where a worker entitled to compensation is confined to a prison, the Board may suspend, withhold or redirect to the worker’s dependants, or to a trustee for the defendants approved by the Board, the whole or any part of any compensation payable to the worker. There is no evidence that the Worker had a dependent during the period in question, and no evidence to support the Worker’s Adviser’s argument that the Case Worker exercised her discretion inappropriately in suspending the Worker’s benefits while he was incarcerated during the period from August 2006 until August 2007.

As such, I find he is not entitled to TERB for that period. [ 4 ] Mr. Creelman appealed to the Nova Scotia Workers ’ Compensation Appeals Tribunal ( “ WCAT ” ). For the first time, he led evidence that he had a common law spouse with whom he was “ co-dependant ” until his August 2006 incarceration. The couple resumed living together after Mr. Creelman ’ s release in April 2007. [ 5 ] WCAT denied Mr. Creelman ’ s appeal and confirmed the WCB ’ s suspension of TERB for the period of his incarceration. [ 6 ] Mr. Creelman now appeals to this Court.

Leave was previously granted on the following basis: Whether the Tribunal erred on a question of law in finding that the Worker was not entitled to receive temporary earnings-replacement benefits during his period of incarceration from August 2006 to April 2007 without consideration, pursuant to s. 78(1) (

c) of the Workers ’ Compensation Act , whether those benefits should have been re-directed to a dependant of the Worker or to a trustee for the dependant approved by the Workers’ Compensation Board. [ 7 ] Section 256(1) of the Act permits an appeal to this Court on a question of law or jurisdiction but not a question of fact. [ 8 ] This appeal involves

interpretation of s. 78(1) of the Act : 78

(1) Where a worker entitled to compensation pursuant to this

Part is confined to a psychiatric institution, prison or other institution, the Board may

(

a) suspend; (

b) withhold; or (

c) re-direct to the worker's dependants or to a trustee for the dependants approved by the Board, the whole or any part of any compensation payable to the worker. [ 9 ] The standard of review for a question of law relating to a tribunal ’ s

interpretation of its enabling statute or involving questions of fact, discretion or policy related to the tribunal ’ s expertise, attracts a standard of reasonableness: Dunsmuir v. New Brunswick , 2008 SCC 9 , at para. 54 ; Smith v. Aliance Pipeline Ltd. , 2011 SCC 7 , at paras. 6 , 7, 26, 28, 31, 37; Halifax (Regional Municipality) v. Hoelke , 2011 NSCA 96 , paras. 11-18 . [ 10 ] The reasonableness standard requires the court to (

a) identify an intelligible line of reasoning in WCAT ’ s decision and (

b) consider whether the conclusion reached was within an acceptable range of outcomes ( Hoelke , paras. 40-46 ). Recently, the Supreme Court of Canada has cautioned that these considerations should not be discretely considered, but must blend together: [14] Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses – one for the reasons and a separate one for the result (Donald J. M. Brown and John M.

Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §12:5330 and 12:5510). It is a more organic exercise – the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). [ Newfoundland and Labrador Nurses ’ Union v.

Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 .] [ 11 ] In concluding as it did, WCAT referred to the evidence of Mr. Creelman ’ s common law relationship: The Worker testified that he and the mother of his child lived together since approximately 2002. They chose to stop living together on or about October 2009, when their child was approximately 14 months old. Although they now live separate residences, the Worker indicated they still spend approximately 90 percent of their time together. He drives the child to daycare in the morning, and returns the child at night.

The Worker indicated his residence is in the country, “in the woods”. At the time of his incarceration, an individual was renting a room in a building on the Worker’s property. Notwithstanding this fact, the Worker’s common law spouse was unnerved by living alone, and she moved to her mother’s residence two to three weeks into the Worker’s incarceration. The Worker testified they were interdependent, and that they relied on each other’s income and assistance. [ 12 ] In rejecting Mr.

Creelman ’ s appeal, WCAT responded to his request for re-direction of TERB to his spouse: The Worker’s Representative argued that neither the Case Manager nor the Hearing Officer were aware of the dependent relationship between the Worker and his spouse. The Workers’ Representative argued that the Worker’s TERB should be paid to the spouse, per section 78(1) of the Act . [ 13 ] In confirming suspension of TERB during the period of Mr. Creelman ’ s incarceration, WCAT said:

In the light of all the circumstances of the situation, I confirm the suspension and denial of TERB during the period of the Worker’s incarceration. At issue is TERB, which is a form of earnings loss benefits. Regardless of the injury, the Worker rendered himself incapable of earning income by choosing to commit a criminal offence which resulted in his incarceration. The Worker’s inability to earn money during this time would exist notwithstanding the effects of any workplace injury.

This is unlike a possible situation where a worker was already in receipt of a permanent impairment benefit for a permanent impairment, which would exist notwithstanding the inability to work due to incarceration. Hence, given the nature of the benefits in issue - that is, TERB - I find the suspension of the Worker’s benefits to be appropriate. [ 14 ] Importantly, WCAT made no findings that Mr. Creelman had any dependants within the meaning of the Act , during the relevant period. Nor did it determine that the case should be remitted to the WCB for reconsideration. [ 15 ] Mr. Creelman argues that: (

a) WCAT ’ s reasons only considered the Worker ’ s blameworthy conduct which broke the “ causal link ” between his work-related injury and his corresponding loss of earnings; (

b) in enacting s. 78(1)(c), the Legislature must have intended to protect the financial interests of dependants by providing for redirection of a worker ’ s compensation in the event of incarceration, notwithstanding worker misconduct; (

c) WCAT wrongly drew a distinction between TERB and permanent impairment benefits when interpreting s. 78(1)(c); (

d) WCAT should have gone on to consider principles or factors applicable to deciding if all or any part of the compensation otherwise payable to the Worker should have been redirected to his spouse. (

a) Causation and (

b) Permanent Impairment Benefits: [ 16 ] These can be conveniently considered together. [ 17 ] With respect to his first argument, Mr. Creelman refers to case law establishing that the common law principle of “ novus actus interveniens ” should not have to be applied in the context of entitlement to benefits under workers ’ compensation legislation. As a general principle that may be but, with respect, that is not what WCAT did here.

The WCAT “ causation ” reasoning was more subtle: For the sake of completeness, one could argue that the true basis of denying TERB in such a situation involves the breaking fo the causal link between the compensable injury and the earnings loss. In this connection, I would note that

section 72 of the Act states that entitlement to TERB can be reviewed at any time. However, even if it were found that an underlying entitlement to TERB continued to exist between August 2006 and April 2007, I believe the appropriate course in such a circumstance would be to suspend benefits per section 78(1) of the Act . [Emphasis added] In other words, even if the worker would have qualified for TERB during his entire period of incarceration – so he could not have worked, even if not incarcerated – TERB should be suspended.

Section 78 clearly contemplates this – otherwise why permit the suspension of benefits when a worker is receiving compensation in the first place? Clearly, inability to work owing to injury does not preclude suspension while incarcerated.

[ 18 ] It was not unreasonable for WCAT to contrast TERB with a permanent impairment benefit ( “ PIB ” ) which might not result in suspension. There is a rational basis for saying that a PIB should continue during incarceration because, unlike TERB, it is payable irrespective of the ability to earn income. [ 19 ] Similarly, it is not unreasonable to suspend TERB when a worker is imprisoned on the basis that the worker ’ s inability to earn money results from his conscious decision to commit a crime.

That could be distinguished from confinement to a psychiatric institution which, at least in most cases, would not directly flow from the worker ’ s choice. [ 20 ] Then Mr. Creelman objects that the foregoing arguments aren ’ t relevant to an exercise of discretion under s. 78(1)(c), which permits re-direction of benefits to a dependent. But that assumes a factual finding of dependency. None was made here. [ 21 ] WCAT ’ s

interpretation here is reasonable and supported by the language of s. 78(1). Redirecting Benefits: [ 22 ] The second argument advanced by Mr. Creelman can be quickly dispensed with. He says that worker misconduct should not result in suspension of benefits, citing s. 10(3) of the Act : 10

(3) Where a personal injury is attributable wholly or primarily to the serious and wilful misconduct of the worker, the Board shall not pay compensation to the worker unless the personal injury (

a) results in death or serious and permanent impairment; or (

b) is likely, in the opinion of the Board, to result in serious and permanent impairment. [ 23 ] It is true that s. 10(3) of the Act does not suspend benefits for worker misconduct in cases of death or permanent impairment. But because the Legislature provided the option for redirecting benefits in s. 78(1)(

c) does not mean that it must always have intended to do so. Otherwise, there would be no discretion conferred on the WCB. Unlike s. 10(3), the operative verb in s. 78 is “ may ” not “ must ” or “ shall ” . Section 78(1)(

c) does not require re-direction of benefits - that is simply permitted. Other Factors: [ 24 ] In criticizing WCAT ’ s exercise of discretion in this case, Mr. Creelman argued that WCAT should have considered other factors such as: 1. whether a loss of earnings continued if Mr. Creelman had not been incarcerated? For example, was his injury such that he would have been prevented from returning to work even if he had not been incarcerated. 2. whether Mr. Creelman's incarceration stopped or interrupted a WCB sponsored treatment program which mitigated the effects of his work-related injury?

In this context, the question might arise whether Mr. Creelman's incarceration interrupted his rehabilitation or recovery so as to otherwise have reduced the impact of his injury during that period. [ 25 ] Mr. Creelman submits that it is an error of law to fail to consider a relevant factor. When exercising a discretion, a tribunal must weigh all the correct factors. But in this case, the “ factors ” for which Mr. Creelman argues are purely hypothetical. There is no

evidence that any of these factually possible “ factors ” actually exist in this case. [ 26 ] In my view, the real question is not whether WCAT failed to consider other important factors but rather whether WCAT could have reached the decision that it did based on the evidence that it had. In my view, it could. Conclusion: [ 27 ] At the end of the day, this Court must determine, considering these factors together ( per Newfoundland and Labrador Nurses ’ Union , supra , para. 10) whether: (

a) WCAT pursued an intelligible line of reasoning; (

b) the decision falls within a reasonable range of outcomes. [ 28 ] With respect to the first point, there is an obligation to show how the result was arrived at – but not describe every conceivable issue, argument or thought process ( R. v. O ’ Brien , 2011 SCC 29 , at 17) . This Court must look to the “ decision as a whole to determine whether it contains sufficient information to permit review by an appellate court ” ( Hills v. Nova Scotia (Provincial Dental Board) , 2009 NSCA 13 , at para 47 ).

We must consider WCAT ’ s reasoning together with the outcome in determining whether the decision is reasonable. [ 29 ] WCAT has provided reasons which permit an understanding of how it reached its decision. Moreover, the decision is within a range of possible and acceptable outcomes in light of the language of s. 78(1) and the facts before it ( Dunsmuir , at para. 47 ). It is clear that WCAT had a discretion whether or not to redirect TERB under s. 78(1)(c). It chose not to do so and, in coming to this conclusion, was aware of and took into account the evidence from Mr.

Creelman that he had a dependant, common law spouse at the relevant time. That Mr. Creelman was not successful does not render the decision unreasonable. [ 30 ] In the result, I would dismiss the appeal. Bryson, J.A. Concurred in: Oland, J.A. Fichaud, J.A.