Nancy Boddy 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. Xerium Canada Incorporated, 2012 NSCA 73

NOVA SCOTIA COURT OF APPEAL Citation: Boddy v. Nova Scotia (Workers ’ Compensation Appeals Tribunal) , 2012 NSCA 73 Date: 20120710 Docket: CA 342364 Registry: Halifax Between: Nancy Boddy 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 Xerium Canada Incorporated Respondents Judge: MacDonald, C.J.N.S., Farrar and Bryson, JJ.A. Appeal Heard: June 14, 2012, in Halifax, Nova Scotia Held: Appeal dismissed per reasons for judgment of Bryson, J.A.; MacDonald, C.J.N.S. and Farrar, J.A. concurring.

Counsel: Linda L. Zambolin and Vanessa Nicholson, for the appellant John Merrick, Q.C. and Alexander MacIntosh, for the respondent Nova Scotia Workers ’ Compensation Appeals Tribunal Paula Arab, for the respondent Workers ’ Compensation Board of Nova Scotia Edward Gores, Q.C., for the respondent Attorney General of Nova Scotia not participating Reasons for judgment : Introduction

[ 1 ] Nancy Boddy is an injured worker who was awarded a permanent impairment benefit and full extended earnings replacement benefit by the Workers ’ Compensation Board ( “ WCB ” ). She appealed, claiming that the WCB should have used a more generous “ earnings profile ” when establishing the long term rate regarding her earnings replacement benefit. The Nova Scotia Workers ’ Compensation Appeals Tribunal ( “ WCAT ” ) did not decide the issue raised by Ms. Boddy in her appeal. Instead, WCAT referred the case to a hearing officer in order to address whether Ms.

Boddy ’ s impairment partly resulted from a non employment cause and therefore should be apportioned. Ms. Boddy now appeals to this Court arguing that WCAT acted outside its jurisdiction. [ 2 ] This Court previously granted leave to Ms. Boddy to appeal on the following grounds: 1. Did WCAT err in its

interpretation of s. 251 of the Workers ’ Compensation Act , S.N.S. 1994-95, c. 10, in determining that it had the authority to refer the issue of apportionment for the worker ’ s injuries to the Hearing Officer when the issue was raised for the first time before WCAT; 2. Did WCAT err in failing to decide the worker ’ s long term earnings rate, the issue before it on appeal? [ 3 ] For reasons that follow, the appeal should be dismissed. Facts [ 4 ] Ms. Boddy was employed with the respondent, Xerium Canada Incorporated, when she filed a WCB accident report claiming injury.

She was ultimately diagnosed with subacromial impingement syndrome and underwent arthroscopic surgery in November 2008. Ms. Boddy began receiving temporary earnings replacement benefits in May 2008. [ 5 ] In 2010 Ms. Boddy ’ s case manager awarded her a permanent impairment benefit and full earnings replacement benefit. Ms. Boddy appealed, arguing that the case manager erred when selecting the wage profile used to calculate Ms. Boddy ’ s long term benefits. That appeal was dismissed by the Hearing Officer and Ms. Boddy appealed further to WCAT. Xerium was advised of both decisions and of its right to appeal.

Xerium did not appeal either decision. [ 6 ] After the appeal period expired but prior to the hearing of Ms. Boddy ’ s appeal to WCAT, Xerium raised the question of apportionment and urged that WCAT remit the appeal to the Hearing Officer for reconsideration pursuant to s. 251 of the Act . Standard of Review [ 7 ] Section 256(1) of the Act allows an appeal on grounds of jurisdiction or a question of law, but not on a question of fact: 256

(1) Any participant in a final order, ruling or decision of the Appeals Tribunal may appeal to the Nova Scotia Court of Appeal on any question as to the jurisdiction of the Appeals Tribunal or on any question of law but on no question of fact. [ 8 ] Ms. Boddy says that the standard of review should be one of correctness because: (

a) she was denied procedural fairness; (

b) the question of jurisdiction is one of pure law. [ 9 ] Alternatively, if the grounds of appeal are reviewed on a reasonableness standard, Ms. Boddy argues that WCAT ’ s decision is not reasonable.

[ 10 ] While it is true that questions of procedural fairness are reviewed on a correctness standard ( Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , para. 43 ) natural justice or fairness is not engaged in this case. Ms. Boddy was not denied an opportunity to address whether or not her case would be remitted to the Hearing Officer for reconsideration. That issue was raised well before the WCAT hearing by Xerium and was the subject matter of submissions to WCAT. The real question is whether WCAT had jurisdiction to entertain the issue raised by Xerium. That is obvious from Ms. Boddy ’ s own submissions, which are heavily reliant on her statutory

interpretation of the Act . [ 11 ] Whether or not the Act authorizes WCAT to remit the case to a hearing officer is a question of law. But questions of law touching and concerning the expertise of a tribunal usually engage a reasonableness standard of review. In Smith v. Alliance Pipeline Ltd ., 2011 SCC 7 , the Supreme Court summarized the principles: [26] Under Dunsmuir , the identified categories are subject to review for either correctness or reasonableness.

The standard of correctness governs: (1) a constitutional issue; (2) a question of “general law ‘that is both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise’” ( Dunsmuir , at para. 60 citing Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 62 ); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a “true question of jurisdiction or vires ” (paras. 58-61). On the other hand, reasonableness is normally the governing standard where the question: (1) relates to the

interpretation of the tribunal’s enabling (or “home”) statute or “statutes closely connected to its function, with which it will have particular familiarity” (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [ 12 ] In this case, Ms. Boddy argues that the

interpretation of s. 256 is a true question of jurisdiction or vires attracting a correctness standard of review. Ms. Boddy concedes that in Alberta (Information and Privacy Commission) v. Alberta Teachers ’ Association , 2011 SCC 61 , Justice Rothstein (writing for the majority) doubted whether true questions of jurisdiction exist.

Concluding on this point, he said: [42] ...The practical approach is to direct the courts and counsel that at this time, true questions of jurisdiction will be exceptional and, should the occasion arise, to address in a future case whether such a category is indeed helpful or necessary. [ 13 ] When considering the application of a correctness standard to a question of law, Justice Rothstein emphasized: [46] ...In other words, since Dunsmuir , for the correctness standard to apply, the question has to not only be one of central importance to the legal system but also outside the adjudicator ’s specialized area of expertise. [Emphasis in original] [ 14 ] Justice Rothstein proposed that reasonableness should be the presumed standard in such circumstances as obtained here: [39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26).

True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal’s

interpretation of its home statute on the deferential standard of reasonableness. [Emphasis added] [ 15 ] In Alberta Teachers ’ Association , Justice Binnie writing for himself and Justice Deschamps concurred in the result, as did Justice Cromwell speaking for himself. But they did not agree with the presumption described by Justice Rothstein.

Without entering into the debate between the justices in Alberta Teachers ’ Association , it suffices to point out that Justice Cromwell, who most strongly argued for preservation of a correctness standard of review for certain questions of jurisdiction or vires , nevertheless agreed that reasonableness applied in that case where the tribunal was interpreting its home statute. [ 16 ] In its factum, WCAT argues:

34. In coming to both decisions:

(1) WCAT was interpreting its home statute;

(2) The discretion is given as part of a sophisticated and distinct adjudicative process in which WCAT is intended to develop, and has developed, considerable expertise and jurisprudence. The legislative intent is the "preservation of the administrative scheme's integrity";

(3) There is no constitutional question;

(4) No question central to the legal system is raised;

(5) There is no competing tribunal being considered;

(6) The questions are either totally a question of fact or heavily fact sensitive;

(7) The role of apportionment requires a familiarity and a sensitivity to the Workers' Compensation regime;

(8) The questions are not true questions of jurisdiction. [ 17 ] These submissions correctly capture the interpretive task in which WCAT was engaged. With respect to both issues on appeal, WCAT construed its “ home ” statute and made procedural decisions. These are questions that should be reviewed on a reasonableness basis. [ 18 ] Review on a reasonableness basis involves examining a tribunal ’ s reasoning process as well as outcomes. The reviewing court is concerned with the “ justification, transparency and intelligibility ” of the reviewed decision.

It also requires the reviewing court to examine the tribunal ’ s result to see whether it falls within a range of possible, acceptable outcomes. The reasons should be read together with the outcome ( Newfoundland and Labrador Nurses ’ Union v. Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 at para. 14 ). Issue 1 - Authority to refer apportionment: [ 19 ] Section 246(1) of the Act describes the duty of WCAT on appeal: 246

(1) The Appeals Tribunal shall decide an appeal according to the provisions of this Act, the regulations and the policies of the Board, and (

a) documentary evidence previously submitted to or collected by the Board; (

b) subject to

Section 251, any additional evidence the participants present;

(

c) the decision under appeal; (

d) the submissions of the participants; and (

e) any other evidence the Appeals Tribunal may request or obtain. The discretion granted to WCAT under this section, is broad ( Enterprise Cape Breton Corporation (Cape Breton Development Corporation) v. Southwell , 2012 NSCA 23 , para. 67 ). [ 20 ]

Section 251 of the Act authorizes WCAT to refer certain matters to a hearing officer: 251

(1) The Appeals Tribunal may, at any point in the hearing of an appeal, refer any matter connected with the appeal to (

a) the hearing officer who decided the matter on appeal to the Appeals Tribunal; or (

b) where the hearing officer who decided the matter on appeal to the Appeals Tribunal cannot for any reason hear the appeal, another hearing officer, for reconsideration where, in the opinion of the presiding appeal commissioner, the quantity or nature of new or additional evidence or the disposition of the appeal merits the referral.

(2) Where a matter is referred to a hearing officer pursuant to subsection (1), any subsequent appeal made pursuant to this

Section from the decision of the hearing officer shall be heard in priority to any appeal commenced after the date of the referral of the first appeal back to a hearing officer. [ 21 ] Ms. Boddy argues that the authority of WCAT is circumscribed in this case by s. 252 of the Act : 252

(1) The Appeals Tribunal may confirm, vary or reverse the decision of a hearing officer.

(2) The Appeals Tribunal shall not (

a) reconsider; (

b) rescind, alter or amend; or (

c) make any further or supplementary order in regard to, any decision already made by the Appeals Tribunal.

(3) Notwithstanding subsection (2), the Appeals Tribunal may correct a typographical or clerical error in a decision made by the Appeals Tribunal.

[ 22 ] Specifically, Ms. Boddy relies upon the following comments of Freeman J.A. in Cherubini v. Workers ’ Compensation Board (N.S.) et al , 2001 NSCA 81 at para. 59 : [59] ...What WCAT had jurisdiction to determine in this appeal, and did determine, is sufficient to require Client Services, that is, the claims adjudicator, to conduct a reconsideration. The only issue on the reconsideration is that stated in § 2(b), to determine whether the new evidence, which has been found by WCAT to meet the criteria of § 1.2, is sufficiently persuasive to warrant altering the subject decision.

Section 252 of the Act authorizes the Tribunal to confirm, vary or reverse the decision of a Hearing Officer, but only in the context of the issue or issues on appeal. To reiterate, on an appeal from the refusal of a reconsideration pursuant to § 1.2, the Tribunal has no jurisdiction under the Policy to determine that the new evidence is sufficient to alter the decision. It can merely find that the evidence might be capable of doing so. (In the language of § 1.2, it does not find that the new evidence would not impact on the earlier final decision.) The next decision is to be made at the Board level pursuant to § 2(b). [ 23 ]

Section 252 limits the appellate jurisdiction of WCAT when considering the merits of the appeal.

But s. 251 recognizes that the merits of an appeal may not have been properly considered at first or second instance and provides a means for reconsideration by the Hearing Officer. [ 24 ] With respect, this appeal has nothing to do with s. 252 of the Act but rather with WCAT ’ s authority to refer “ any matter connected with an appeal ” under s. 251(1). [ 25 ] In deciding to refer the matter to a Hearing Officer, WCAT explained: It is not a stretch of the statutory language to find that “any matter connected with the appeal” includes the fundamental question of entitlement to the benefits sought.

In this appeal, the Employer representative asserts that the Worker is likely entitled only to a portion of the benefits she seeks.

Section 37 of the Act , subsection (1) reads as follows: 37

(1) Where a loss of earnings results from an injury, an earnings-replacement benefit is payable to the Worker in accordance with this section. This

section follows the initial eligibility provisions of the Act , including

section 10, subsection (5) which reads as follows: 10

(5) Where a personal injury by accident referred to in subsection (1) results in loss of earnings or permanent impairment (

a) due in part to the injury and in part to causes other than the injury; or (

b) due to an aggravation, activation or acceleration of a disease or disability existing prior to the injury, compensation is payable for the proportion of the loss of earnings or permanent impairment that may reasonably be attributed to the injury. It is clear from the above-cited sections that, the question of jurisdiction raised in this appeal aside, the Act authorizes compensation only for a loss of earnings relatable to a compensable injury.

The Act does not authorize the payment of compensation that is not caused by a compensable injury and, if a loss of earnings arises from the combination of compensable and non-compensable causes, only that proportion relatable to the compensable cause may be compensated.

[ 26 ] Ms. Boddy argues that s. 251 must be interpreted to limit the words “ any matter connected with the appeal ” to mean the issues raised in the notice of appeal. She cites Trizec Equities Ltd. v. British Columbia (Assessor of Area No. 10 Burnaby) , [1979] B.C.J. No. 1100 (a property assessment case) for assistance when interpreting the words “ with reference to the subject matter of the appeal ” . Reliance on Trizec is misplaced. That case was overturned on appeal ( British Columbia (Assessment Commissioner) v. Western Forest Industries Ltd. , [1980] B.C.J. No. 1214 ).

As the Court of Appeal analysis in that case shows, the statutory language is highly contextual and requires a consideration of the Act as a whole. [ 27 ] If the Legislature had intended to limit referrals under s. 251 to issues raised in an appellant ’ s notice of appeal, it would have been a simple matter to use such language. Importantly, s. 246 of the Act does not restrict what WCAT must consider to the Notice of Appeal (para. 19 above). Ms. Boddy ’ s

interpretation really ignores the obligation to decide cases on their merits and in accordance with the Act , the Regulations and the Policies of the Board (ss. 186 and 246). [ 28 ] Ms. Boddy submits that her appeal to the Hearing Officer raised the limited issue of whether or not the WCB had used the appropriate pre-injury wage profile in determining her long term rate. No other participant appealed the decision. Ms.

Boddy objects that the effect of WCAT ’ s referral of the question of apportionment is to circumvent the appeal procedure set out in the Act and frustrates the principle of finality of the Act . [ 29 ] During oral submissions Ms. Boddy ’ s counsel asserted that any issue “ not appealed ” became “ final ” by virtue of s. 185 of the Act : 185

(1) Subject to the rights of appeal provided in this Act, the Board has exclusive jurisdiction to inquire into, hear and determine all questions of fact and law arising pursuant to this Part, and any decision, order or ruling of the Board on the question is final and conclusive and is not subject to appeal, review or challenge in any court.

(2) Notwithstanding subsection (1) but subject to Sections 71 to 73, the Board may (

a) reconsider any decision, order or ruling made by it; and (

b) confirm, vary or reverse the decision, order or ruling. But that is the point – the issue raised before WCAT had never been considered or decided by WCB. [ 30 ] Certainty and finality are diminished principles under the scheme of the Act , which allows for review, suspension, reconsideration, extension of time limits and the like (ss. 71(1); 72; 73; 78; 185; 190; 240(2); 251). Entitlement at first instance remains alive, while a decision is under appeal (s. 185(2) of the Act , Policy 8.1.7R1). Workers ’ compensation adjudication differs significantly from private fault based litigation.

There are “ participants ” and not “ parties ” . There are no pleadings. The “ participants ” are frequently unrepresented. The system is more inquisitorial than adversarial (Terence G. Ison, Workers ’ Compensation of Canada , 2nd ed. (Toronto: Butterworths, 1989) para. 8.11.18). In such a system, meritorious compensation should not be trumped by a narrow application either of process or the principle of finality. After all, it was Ms. Boddy ’ s appeal that kept the process alive. In light of her appeal, there was no final decision on how much earnings replacement to which she would be entitled. [ 31 ] Ms.

Boddy ’ s counsel also urged during oral argument that the effect of WCAT ’ s decision would be to discourage worker appeals because something novel might arise that could reduce their entitlement. But this submission works both ways.

Workers could just as easily be encouraged that WCAT was not precluded from raising an issue ignored below that would ensure consideration of the merits of their appeal. [ 32 ] In exercising discretion to refer the matter to a Hearing Officer, WCAT relied upon s. 186 of the Act : 186 The decisions, orders and rulings of the Board shall always be based upon the real merits and justice of the case and in accordance

with this Act, the regulations and the policies of the Board. This language informed its

interpretation of “ ...any matter connected with the appeal ” in s. 251(1). While it is true that apportionment and long term rates are logically discrete, it is clear that the question of quantum can affect entitlement in a broad as opposed to a narrow sense. As WCAT set out in its decision, a worker ’ s entitlement to lost earnings depends upon her suffering a compensable injury (s. 37). Section 10(5) of the Act limits payable compensation to that proportion of the loss of earnings or permanent impairment that may be “ reasonably attributed to the injury ” .

Therefore, payment of a long term earnings replacement benefit – without apportionment, if that were appropriate – would mean that a worker was receiving compensation to which he or she was not entitled (s. 10(5)). [ 33 ] WCAT found that apportionment was connected to the appeal because • the underlying case manager decision awarded Ms.

Boddy full extended earnings replacement benefit; • there was evidence that raised the issue of apportionment of that benefit; • There was no indication that either the case manager or Hearing Officer had considered apportionment in their decisions; • the result of addressing only the long term rate and ignoring apportionment could potentially result in Ms. Boddy receiving a benefit to which she was not entitled or at a level to which she was not entitled. [ 34 ] WCAT ’ s reasoning process is clear and its

interpretation that “ any matter connected with the appeal ” includes entitlement, is not unreasonable. [ 35 ] The

interpretation placed on s. 251 by Ms. Boddy really prevents WCAT from ensuring that a worker ’ s claim for compensation is decided on the merits. WCAT ’ s refusal to accept this approach can be sustained by its

interpretation of s. 251 and therefore occupies a range of reasonable outcomes. Issue 2 - Did WCAT err in failing to decide the Worker ’ s long term earnings rate? [ 36 ] With respect to this issue, WCAT said: In my view, the question of apportionment must be answered before a consideration of the Board’s long-term rate calculation for the reasons below. The appeal is referred back to the Board for reconsideration. The hearing officer should direct an initial consideration of the appropriateness of apportionment from the case manager.

In WCAT ’ s view, deciding the long term rate calculation before considering possible apportionment, could potentially result in Ms. Boddy receiving benefits to which she was not entitled. That would offend the Act (ss. 37, 10(5). [ 37 ] In her submissions, Ms. Boddy complains that WCAT should have decided the issue under appeal – ie., the proper basis for calculating the worker ’ s long term rate.

She argues that WCAT “ declined jurisdiction ” by not deciding this issue and that the long term rate is not “ inextricably connected ” with the apportionment issue. [ 38 ] There is no requirement that apportionment and the long term rate be “ inextricably connected ” for purposes of reconsideration. WCAT did not decline jurisdiction to decide the issue of long term rate. Rather, WCAT effectively required the Hearing Officer to decide both issues together. Certainly, Ms. Boddy is correct that the long term rate and apportionment could be considered separately.

But the question is whether considering them together is unreasonable. The timing and means by which the apportionment and long term rate issues could be decided are essentially questions of process and very much the business of WCAT and not the Court. WCAT ’ s

decision to have both issues decided by a Hearing Officer is not unreasonable and should not be disturbed by this Court. [ 39 ] For the foregoing reasons, the appeal should be dismissed. Bryson, J.A. Concurred in: MacDonald, C.J.N.S. Farrar, J.A.