Isles v. Nova Scotia (Workers’ Compensation Board), 2015 NSCA 94

Nova Scotia Court of Appeal Citation: Isles v. Nova Scotia (Workers’ Compensation Board), 2015 NSCA 94 Date: 20151014 Docket: CA 443856 Registry: Halifax Between: Harold Edward Isles Applicant v. Workers’ Compensation Board of Nova Scotia, The Workers’ Compensation Appeals Tribunal, and the Attorney General of Nova Scotia Respondents Judge: The Honourable Justice Cindy A. BourgeoisMotion Heard: October 8, 2015, in Halifax, Nova Scotia in ChambersHeld: Motion dismissedCounsel: Harold Edward Isles, Applicant in Person Paula M.

Arab, Q.C., for Workers’ Compensation Board of Nova Scotia Alexander MacIntosh, for The Workers’ Compensation Appeals Tribunal Edward A. Gores, Q.C., for the Attorney General of Nova Scotia Decision: [1] On October 8, 2015, I heard a motion in Chambers brought by Mr. Isles. On the face of his Notice of Motion, he is seeking anorder extending the time to file a Notice of Application for Leave to Appeal a decision of the Workers’ Compensation Appeals Tribunal(WCAT) dated January 14, 2009. [2] There is no automatic right to appeal a WCAT decision to this Court.

Section 256(2) of the Workers’ Compensation Act,S.N.S. 1994-95, c. 10 provides that leave to appeal must be sought, and that such must be done within thirty days of receiving thedecision. Mr. Isles has missed that prescribed deadline by well over six years. [3] From his submissions, and grounds of appeal, is it clear that the concerns Mr. Isles wants to bring before this Court are muchbroader than the content of the 2009 WCAT decision. [4] The motion is opposed by the Workers’ Compensation Board (WCB).

Although in attendance at the hearing, the AttorneyGeneral of Nova Scotia and WCAT took no position on the motion. The Law [5] This Court is often asked to permit the filing of a Notice of Appeal outside the prescribed timeframe for doing so.

Inresponding to such requests the Court often references a three-part test, as articulated by Justice Bateman in Bellefontaine v.Schneiderman, 2006 NSCA 96 as follows: [3] A three-part test is generally applied by this Court on an application to extend the time for filing a notice of appeal, requiring thatthe applicant demonstrate (Jollymore Estate Re (2001), 2001 NSCA 116 , 196 N.S.R. (2d) 177 (C.A. in Chambers) at para.22): (1) the applicant had a bona fide intention to appeal when the right to appeal existed; (2) the applicant had a reasonable excuse for the delay in not having launched the appeal within the prescribed time; and (3) there are compelling or exceptional circumstances present which would warrant an extension of time, not the least of which beingthat there is a strong case for error at trial and real grounds justifying appellate interference. [6] The above test is not to be applied rigidly.

In Blinn v. Boudreau, 2015 NSCA 78, this point was made nicely by JusticeBryson, who said:

[10] The three-part test described in Schneiderman is not exhaustive. A residuary discretion does remain in the court to extend time where it would be just to do so: [5] Although courts most commonly allude to the three-part test in Jollymore , supra , the ultimate question is whether justice requires that an extension be granted: Farrell v. Casavant , 2010 NSCA 71 , at para. 17 and Cummings v. Nova Scotia (Community Services) , 2011 NSCA 2 , at para. 19 .

Accordingly, the three-part Jollymore test is an appropriate guide for the exercise of the court’s discretion but it is not an exhaustive description of that discretion. [ Brooks v. Soto , 2013 NSCA 7 ] [ 7 ] I will apply the above principles to Mr. Isles’ motion, with the ultimate question being whether it is in the interests of justice to permit the filing of the Notice of Application for Leave to Appeal. Discussion [ 8 ] In his affidavit Mr. Isles asserts that he first formed the intention to appeal the January 14, 2009 decision on February 1, 2009. He gives no further detail.

He also says that he was unable to act upon his intention, given his attention deficit disorder and dyslexia. He points to a September 2010 neuropsychological assessment report as establishing that his physical and psychological conditions prevented him from advancing his appeal. [ 9 ] With respect to the merits of the appeal, it is helpful at this point to consider the proposed Notice of Application for Leave to Appeal. As noted earlier, on its face, it provides that Mr. Isles is challenging the January, 2009 WCAT decision. Mr. Isles has put forward seven detailed grounds of appeal.

I paraphrase the grounds as follows: 1. By virtue of the gross negligence of the WCB, his herniated disc went undiagnosed, resulting in physical and financial hardship; 2. The WCB was grossly negligent in the investigation and processing of his chronic pain claim; 3. WCAT erred in law by not recognizing documentation he provided to the WCB on December 3, 2009, which showed that the premise for the earlier decision in January was flawed; 4. The WCB acted in bad faith in the handling of his claim by not providing access to a case manager, or addressing his concerns that documentation was being misinterpreted; 5.

The Workers’ Advisor did not represent Mr. Isles properly, including refusing to present documentation relevant to his claim; 6. The WCB, having full knowledge of his state of mind, used that knowledge maliciously when evaluating his claim; 7. The WCB through its action and negligence have violated his Charter rights over the past 25 years. [ 10 ] Attached to his proposed Notice was also a decision of a WCB Hearing Officer, dated August 4, 2011, in which permanent impairment and extended earnings replacement benefits were determined. [ 11 ] At the hearing, I asked Mr.

Isles at length about what aspects of the 2009 WCAT decision he would be asking this Court to address. His concerns mirrored the grounds of appeal. Mr. Isles very capably explained that the factual foundation upon which the 2009 WCAT decision, and the later WCB Hearing Officer’s decision were based, was flawed. He asserts that as early as 1990 (his compensable injury was in 1989), WCB staff began inappropriately influencing medical professionals, including a doctor and physiotherapist to submit false reports about the nature of his injury and ability to work. [ 12 ] Mr.

Isles also takes issue with how WCB staff have managed his claim in the past, and he submitted a series of emails written in 2014 and 2015 which he purports shows that WCB staff are still dealing with his ongoing claim negligently and/or in bad faith. [ 13 ] Mr. Isles submits that because of how his claim has been handled, and the factual errors relied upon by WCAT in the 2009 decision, he is receiving less benefits from WCB for his 1989 compensable injury than he is entitled to. [ 14 ] I asked Mr. Isles what remedy he would be seeking, should his matter ultimately be heard by a panel of this Court.

He stated that he wants this Court to “recognize the wrongdoing” perpetrated against him by the WCB over the last 25 years. He wants to have this Court order that the recommendations regarding services contained in the 2010 neuropsychological assessment report be implemented. He wants to submit new information to show the facts stated in the 2009 WCAT decision are wrong, and to have this Court ultimately increase his benefits and entitlements on a retro-active basis. Analysis [ 15 ] Are the circumstances before me such that justice requires Mr. Isles’ request for an extension be granted?

In answering that question I will consider whether Mr. Isles has satisfied me that he had a bona fide intention to appeal within the required appeal period; whether he has a reasonable excuse for not doing so, and the apparent merit in the appeal he seeks to advance. [ 16 ] Although I do not doubt the sincerity of Mr. Isles’ belief that he has been wronged by the WCB, he has failed to convince me that it would be appropriate to permit him to file his Notice of Application for Leave to Appeal. I will explain why. Bona fide intention [ 17 ] The January 14, 2009 decision which Mr.

Isles is seeking to appeal, was a decision which found in his favour. He had appealed

a WCB Hearing Officer’s earlier finding that his current complaints and inability to work were unrelated to his 1989 compensable injury. The WCAT concluded that Mr. Isles’ current back problems were causally related to the much earlier compensable injury. [ 18 ] Mr. Isles says he formed the intention to appeal that decision on February 1, 2009. Mr. Isles explained that there were factual errors in the WCAT decision, that he wanted to have corrected.

The fact that he filed material in December 2009 attempting to do so, is indicative that notwithstanding the favourable outcome of the January decision, he wanted to challenge aspects of it. I am prepared to conclude that Mr. Isles did have a bona fide intention to challenge the decision within the appeal period. Reasonable excuse for the delay [ 19 ] From the materials before me, I am not satisfied that Mr. Isles has established a reasonable excuse for failing to seek leave to appeal within the required time frame.

He suggests he was mentally unable to undertake the process of an appeal, and relies upon the neuropsychological assessment of September 2010 in support of that position. [ 20 ] I have carefully reviewed the entirety of that report. Although it identifies Mr. Isles having some cognitive and attention deficits, it does not indicate that he was mentally incompetent or unable to manage his own affairs, either at the time the report was written, or within the appeal period. Further, it is clear from other material filed by Mr.

Isles that he has been actively involved in pursuing various issues with WCB in the months and years following the WCAT decision, up to and including the present. [ 21 ] I am not satisfied that Mr. Isles was incapable of bringing this matter forward earlier, or that his inability to obtain legal representation in the last six years gives rise to a reasonable excuse for the delay in advancing his appeal. Merits of the Appeal [ 22 ] The final consideration is whether Mr. Isles has raised an arguable ground of appeal. He has not. This Court simply does not have the ability to grant Mr.

Isles the remedies he is seeking. As noted by Justice Beveridge in Allen v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2011 NSCA 72 , “[i]t is axiomatic that it is not in the interests of justice to extend time for an applicant to file his or her application for leave to appeal where the proposed application is doomed to failure”. As in Allen , Mr. Isles’ application for leave has no hope of success. [ 23 ] Mr.

Isles clearly believes that this Court has the authority to inquire into the history of how his WCB claims have been managed since his injury in 1989, and to rectify his mistreatment by retro-actively increasing his benefit award and order services be provided to him. It does not. Even if Mr. Isles had convincing evidence of factual errors and his mistreatment by WCB, which he says he has, this Court cannot provide him with the outcome he seeks. [ 24 ] This Court’s ability to hear matters arising from the WCB system is anchored in s. 256 of the Act . The relevant provisions are as follows: 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.

(2) No appeal shall be made pursuant to subsection (1) without leave of the Nova Scotia Court of Appeal.

(3) The Nova Scotia Court of Appeal shall not grant leave to appeal pursuant to this

Section unless (

a) leave is applied for in accordance with the Civil Procedure Rules within thirty days of the receipt of written communication of the decision of the Appeals Tribunal; and (

b) all other avenues of appeal provided for in this Act have been exhausted. [ 25 ] In a nutshell, the above provisions limit this Court’s jurisdiction to hear only appeals from WCAT decisions. Those appeals are limited to issues of that tribunal’s jurisdiction or questions of law. Questions of fact are not permitted to be addressed by this Court on an appeal of a WCAT decision. [ 26 ] The only WCAT decision raised by Mr. Isles is the January 2009 decision in which he was successful. He raised no legal or jurisdictional question about the content of that decision.

His concern is squarely about the factual findings made by the tribunal. This Court is expressly prohibited from delving, on appeal, into factual findings. Mr. Isles has attempted to craft an error of law out of the fact that materials he submitted ten months following the WCAT decision were not properly considered. With respect, an error of law cannot be grounded in Mr. Isles’ allegation that a decision maker failed to consider information which was never before it at the time of adjudication. [ 27 ] Mr. Isles also takes issue with the 2011 decision of a WCB Hearing Officer.

Unlike the earlier decision which he appealed to WCAT, this decision was never appealed. Section 256(3)(

b) specifically prevents this Court from granting leave to appeal if other avenues for appeal are available under the Act . The Court has no jurisdiction to hear appeals from WCB decisions. Nor does it have any

jurisdiction to inquire into the handling of claims by WCB staff. This Court has no jurisdiction to hear any of the grounds Mr. Isles seeks to advance, and as such it is not in the interests of justice to grant the extension of time. Conclusion [ 28 ] For the reasons outlined above, Mr. Isles’ motion is dismissed, without costs. Bourgeois, J.A.