Surette v. Nova Scotia (Workers’ Compensation Board), 2017 NSCA 81

NOVA SCOTIA COURT OF APPEAL Citation: Surette v. Nova Scotia (Workers’ Compensation Board) , 2017 NSCA 81 Date: 20171103 Docket: CA 460849 Registry: Halifax In the matter of: A stated case pursuant to s. 206 of the Workers’ Compensation Act by the Workers’ Compensation Appeals Tribunal to the Nova Scotia Court of Appeal in relation to WCAT Appeal 2016-299; And, in the matter of: WCAT Appeal #2016-299 Between: Lloyd Surette Appellant v. Workers’ Compensation Board of Nova Scotia and Attorney General of Nova Scotia Respondents Respondent Judge: The Honourable Justice David P.S. Farrar Appeal Heard: October 4, 2017, in Halifax, Nova Scotia Subject: Workers’ Compensation Law.

Interpretation of Workers’ Compensation Act , S.N.S. 1994-95, c. 10; whether Board Policy is inconsistent with the Act. Compensation for noise-induced hearing loss.

Summary: This came to the court by way of Stated Case. Mr. Surette was employed as a shipwright for 50-55 years. He retired in December of 2007. In 2015, Mr. Surette had an audiogram which suggested he had occupational noise-induced hearing loss. He applied for workers’ compensation benefits. His claim was denied by a hearing loss adjudicator. He appealed to a hearing officer. That appeal was also denied. He then appealed to WCAT. WCAT found that Mr. Surette was, in all other respects, entitled to be adjudicated for noise-induced hearing loss.

However, a Board Policy required him to have an audiogram within five years of having left his employment. He had not done so. Therefore, on the plain wording of the policy he was not entitled to be adjudicated for noise-induced hearing loss. WCAT stated a case to the Court of Appeal asking it to determine whether the Board Policy was inconsistent with the Act . Issues: Was the Board Policy which required Mr. Surette to have an audiogram within five years of leaving his employment inconsistent with the Act ? Result: The Board Policy was inconsistent with the Act .

The Act sets out a statutory scheme for payment of compensation for occupational diseases such as noise-induced hearing loss. The imposition of the five-year audiogram rule was contrary to the express provisions of the Act . 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: Surette v. Nova Scotia (Workers’ Compensation Board) , 2017 NSCA 81 Date: 20171103 Docket: CA 460849 Registry: Halifax In the matter of: A stated case pursuant to s. 206 of the Workers’ Compensation Act by the Workers’ Compensation Appeals Tribunal to the Nova Scotia Court of Appeal in relation to WCAT Appeal 2016-299; And, in the matter of: WCAT Appeal #2016-299 Between: Lloyd Surette Appellant v. Workers’ Compensation Board of Nova Scotia and Attorney General of Nova Scotia Respondents Judges: Fichaud, Farrar and Bourgeois, JJ.A.

Appeal Heard: October 4, 2017, in Halifax, Nova Scotia Held: Workers’ Compensation Appeals Tribunal’s Question to the Court of Appeal Answered in the Affirmative Counsel: Stephen R. Lawlor and David McCluskey, for the appellant Roderick (Rory) Rogers, Q.C. and Paula Arab, Q.C., for the respondent, Workers’ Compensation Board of Nova Scotia Alexander C.W. MacIntosh, for Workers’ Compensation Appeals Tribunal Edward A.

Gores, Q.C., for the respondent Attorney General of Nova Scotia (not participating) Reasons for judgment: Overview [ 1 ] This matter came before this Court as a stated case from the Workers’ Compensation Appeals Tribunal (WCAT) pursuant to s. 206 of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10 (“the Act ”) .

Section 206 allows WCAT to state a case to this Court on any question of law. It provides: Stated case to Court of Appeal 206

(1) The Board or the Appeals Tribunal may state a case in writing for the Nova Scotia Court of Appeal on any question of law.

(2) The Nova Scotia Court of Appeal shall (

a) hear and determine the question or questions referred pursuant to subsection (1); and (

b) provide its opinion on the question to the Board or the Appeals Tribunal, as the case may be.

(3) The Nova Scotia Court of Appeal shall not award costs in a case stated pursuant to this Section. [2] WCAT asks for our opinion on the following question of law: Is Paragraph 2 of Step 2 of Board Policy 1.2.5AR1, the “five-year audiogram rule”, inconsistent with

Part 1 of the Act , specifically sections 10 , 12 and 83 ? [3] For the reasons that follow, I would find that the Policy is inconsistent with

Part 1 of the Act . [1] Background [4] The facts have been provided to us by WCAT in its Notice of Application to State a Case. I will restate them here although not necessarily in the same order or wording as in the Notice of Application. [5] Mr. Surette was employed as a shipwright for 50-55 years. He retired in December of 2007. [6] The first time he had his hearing tested after he ceased working was on November 26, 2015, at the Nova Scotia Hearing and Speech Centre. According to the audiogram taken that day, Mr.

Surette had sensorineural hearing loss bilaterally for which binaural amplification was recommended. [7] Mr. Surette filed a claim for occupational noise-induced hearing loss (sometimes referred to by the acronym NIHL) with the Workers’ Compensation Board (WCB) in February 2016. [8] In a decision dated March 1, 2016, a Hearing Loss Adjudicator denied Mr. Surette’s claim because he did not meet the criteria of Board Policy 1.2.5AR1 which addresses entitlement to benefits for occupational hearing loss (the Policy).

To be considered for entitlement to compensation, the Policy requires a worker to have an audiogram within five years of leaving the workplace where it was alleged exposure to excessive noise occurred (this is sometimes referred to as the five-year audiogram rule). [9] The Policy provides: To consider entitlement of NIHL, once a worker is no longer exposed to workplace noise in excess of permissible levels, the worker must have an audiogram performed within 5 years of leaving the workplace location with the excessive noise .

The date of the audiogram indicating NIHL will be considered the date of accident for adjudication purposes. [Emphasis added] [10] Mr. Surette appealed the adjudicator’s decision to a hearing officer. In a decision dated June 17, 2016, the Hearing Officer upheld the Adjudicator’s decision, confirming the finding that Mr. Surette’s claim was barred by the operation of the five-year audiogram rule in the Policy. [11] Mr. Surette appealed the Hearing Officer’s decision to WCAT. [12] In her decision dated February 2, 2017, the Appeal Commissioner found that, in all other respects, Mr.

Surette was entitled to be adjudicated for occupational hearing loss. However, the five-year audiogram rule would preclude such an adjudication. [13] WCAT stated a case to this Court asking us to answer the question as previously set out. Issue [14] The only issue for determination is whether the five-year audiogram rule is inconsistent with the Act . Standard of Review [15] The Act entitles the WCB to adopt policies “consistent with” the Act and regulations: 183

(2) The Board of Directors may adopt policies consistent with this Part and the regulations to be followed in the application of this Part or the regulations. [16]

Section 183 also provides that policies adopted by the Board are expressly binding on the WCB and on WCAT, although in the case of WCAT only to the extent that they are consistent with the Act and the regulations: 183

(5) Until a different policy is adopted, every policy adopted by the Board of Directors pursuant to subsection (2) is binding on the Board itself, the Chair, every officer and employee of the Board and on the Appeals Tribunal. (5A) Notwithstanding subsection (5), a policy adopted by the Board is only binding on the Appeals Tribunal where the policy is consistent with this Part or the regulations. [17] In Guy v.

Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2008 NSCA 1 , this Court discussed the nature of policies made pursuant to s. 183 and determined they were more akin to subordinate legislation than to administrative policies. To the extent that they are consistent with the Act they have the force of law: [14] … Because the WCB’s policies are specifically authorized and made binding by statute, they have more in common with subordinate legislation than with administrative policies and guidelines which are not specifically authorized or binding.

In short, within the workers’ compensation system, these policies, by express statutory provision, have the force of law. The legislature could not more clearly have evidenced its intent that the WCB has the authority to make policies

which are binding to the extent that they are not inconsistent with the WCA or the regulations under it . [Emphasis added] [18] Board policies are, therefore in substance, subordinate legislation. The standard of review of subordinate legislation is set out in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care) , 2013 SCC 64 . The Katz standard was recently summarized by this Court in The Nova Scotia Barristers’ Society v.

Trinity Western University , 2016 NSCA 59 as follows: [48] Katz directs the Court to consider the scheme of the Legal Profession Act – i.e. its wording, context and objective and the Society’s statutory mandate, interpreted purposively and broadly. Katz instructs that the impugned regulation benefits from a presumption of validity, and its purpose is interpreted liberally. It is ultra vires only if it is “irrelevant”, “extraneous” or “completely unrelated” to its statutory authority.

Neither the policy merits of the regulation nor the underlying “political, economic, social or partisan considerations” pertain to the inquiry. [19] The question is: does the scheme of the Act allow the WCB to pass a policy which precludes it from adjudicating a worker’s claim on the expiration of a time limit. Analysis [20] Broadly speaking, the overall scheme and purpose of the Act is to provide compensation to workers injured in the course of their employment without regard to fault. In doing so, the Board is given broad powers to manage the Accident Fund out of which benefits are to be paid.

It has the ability to shape, by regulation and by policy, many of the benefits contemplated by the Act ( Guy, supra , ¶18). [21] I now turn to the specific wording of the Act . [22] A worker’s eligibility for compensation is set out in s. 10 of the Act : 10

(1) Where, in an industry to which this Part applies, personal injury by accident arising out of and in the course of employment is caused to a worker, the Board shall pay compensation to the worker as provided by this Part. [Emphasis added] [23] “Accident” is defined in s. 2 of the Act and includes: … (iii) disablement, including occupational disease , arising out of and in the course of employment, … [Emphasis added] [24] Occupationally-induced hearing loss is an occupational disease (Policy 1.2.5AR1 ¶1). [25] If a worker suffers from an occupational disease, the worker is entitled to compensation as provided in s. 12 of the Act : 12

(1) Where an occupational disease is due to the nature of any employment to which this Part applies in which a worker was engaged, whether under one or more employments, and (

a) the occupational disease results in loss of earnings or permanent impairment ; or (

b) the worker’s death is caused by the occupational disease, the worker is entitled to compensation as if the occupational disease was a personal injury by accident. [Emphasis added] [26] The Act provides a claim for compensation must be made within one year of a worker learning that the worker suffers from the occupational disease: 83

(2) In the case of an occupational disease, the Board shall not pay compensation except where (

a) the worker has given the employer notice of the injury as soon as practicable after the worker learns that the worker suffers from an occupational disease ; and (

b) the worker’s claim for compensation is made within twelve months after the worker learns that the worker suffers from the occupational disease for which the worker is claiming compensation . [Emphasis added] [27] The Act gives the WCB discretion to extend the time limits in s. 83(2) if there is no prejudice to the WCB subrogated interests or any right of the employer: 83

(5) Failure to give notice pursuant to this

Section bars the right to compensation unless, upon the application of the worker, the Board

determines that (

a) any right of the worker’s employer pursuant to this Part; and (

b) the subrogated interest of the Board, has not been prejudiced by the failure, in which case the Board may extend the time for filing a claim. (6) Subsection (5) does not apply where five years or more have elapsed from (

a) the happening of the accident; or (

b) the date when the worker learns that the worker suffers from an occupational disease, as the case may be. [28] Finally, s. 184(1) allows the WCB by regulation, with the approval of Governor-in-Council, to prescribe any time limit not otherwise prescribed in the Act : 184

(2) Without restricting the generality of subsection (1), the Board, with the approval of the Governor in Council, may make regulations (

a) prescribing any time limit not prescribed in this Part that the Board considers necessary for the efficient operation of the Board; … [29] What then is the scheme of the Act when considering a claim for an occupational disease? It may be summarized as follows: i. If a worker has an accident arising out of and in the course of employment the WCB is required to pay compensation as provided in the Act ( s. 10 ); ii. Occupational diseases are defined as an accident compensable under the Act ( s. 2 ); iii.

A worker is entitled to compensation for an occupational disease as if it were a personal injury by accident (s. 12); iv. The only time limitation on entitlement of compensation for occupational disease is contained in s. 83 of the Act . The failure to give notice is a bar to the right to compensation, unless the WCB determines that the worker’s employer and the subrogated interest of the WCB have not been prejudiced by the failure to give timely notice in which case the WCB may extend the time; v. The WCB may, among other things, enact policies, but only if those policies are consistent with the Act ; and vi.

The WCB may, with the approval of the Governor-in-Council, make regulations prescribing any time limit not already prescribed in the Act . It is subject to: a. Approval of the Lieutenant-Governor-in-Council; and b.

The time limitation is not otherwise prescribed in the Act . [30] I now return to the wording of the Policy which requires an audiogram within five years as a prerequisite to adjudication of a claim for noise-induced hearing loss: To consider entitlement of NIHL, once a worker is no longer exposed to workplace noise in excess of permissible levels, the worker must have an audiogram performed within 5 years of leaving the workplace location with the excessive noise.

The date of the audiogram indicating NIHL will be considered the date of accident for adjudication purposes. [31] The requirement, by Policy, to have an audiogram within five years of the worker leaving employment does not accord with the scheme of the Act . It imposes a limitation on the entitlement to compensation for a specific type of occupational disease, i.e., noise- induced hearing loss which is contrary to the express provisions of the Act . [32] The 5 year audiogram rule is clearly a limitation period. The Act already provides a limitation period for when a claim may be made for an occupational disease.

The Act further provides when the WCB may exercise its discretion extending the time for filing a claim even if the time limitation has been missed. [33] The Policy not only imposes an additional limitation period not contemplated by the Act , it removes any discretion from the WCB to extend the time for filing a claim. It changes the limitation period in the Act from one which is based on when a worker learns of the occupational disease to one which is rigid and non-discretionary. Its effect is extraneous to its statutory authority under Katz . It is inconsistent with the Act . [34] Mr.

Surette has complied with the statutory requirements which would otherwise enable him to have his claim adjudicated. It is not open for the WCB to prevent that through policy. [35] For these reasons, to the extent that the Policy requires the worker to obtain an audiogram within five years of leaving his

employment in order to be eligible for compensation, it is inconsistent with the Act . [36] No costs will be awarded to any party. Farrar, J.A. Concurred in: Fichaud, J.A. Bourgeois, J.A.