Tufts v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2023 NSCA 50

Nova Scotia Court of Appeal Citation: Tufts v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2023 NSCA 50 Date: 20230711 Docket: CA 507275 Registry: Halifax Between: Richard Tufts Appellant v. Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board of Nova Scotia, Attorney General for the Province of Nova Scotia and GDI Services (Canada) LP Respondents Judge: The Honourable Justice David P. S. Farrar Appeal Heard: May 11, 2023, in Halifax, Nova Scotia Subject: Workers’ compensation law, s. 10(1) and (4) of the Workers’ Compensation Act , Workers’ Compensation Board Policy 1.3.7R, arising out of and in the course of employment, standard of review

Summary: The appellant, Richard Tufts, was injured when he was performing a religious cleansing ritual while at work. He sought Workers’ Compensation Benefits. A WCB Case Worker found the appellant did not suffer personal injury by accident arising out of or in the course of his employment pursuant to s. 10(1) of the Workers’ Compensation Act . That decision was upheld by a WCB Hearing Officer and the Workers’ Compensation Appeals Tribunal. Mr. Tufts appealed, arguing that WCAT erred in its

interpretation of the arising out of and in the course of employment criteria in s. 10 of the Act and WCB Policy 1.3.7R. Issue: Did WCAT err on a question of law or jurisdiction in the application and

interpretation of s. 10(1) of the Act and WCB Policy 1.3.7R finding the appellant did not sustain a personal injury by accident arising out of the course of employment? Result: WCAT did not err in finding that the injury did not arise out of and in the course of employment. It correctly interpreted s. 10(1) and (4) of the Act and properly applied the Policy in making its determination. Appeal dismissed without costs to any party. 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 84 paragraphs.

Nova Scotia Court of Appeal Citation: Tufts v. Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2023 NSCA 50 Date: 20230711 Docket: CA 507275 Registry: Halifax Between: Richard Tufts Appellant

v. Nova Scotia Workers’ Compensation Appeals Tribunal, Workers’ Compensation Board of Nova Scotia, Attorney General for the Province of Nova Scotia and GDI Services (Canada) LP Respondents Judges: Farrar, Bryson and Derrick JJ.A. Appeal Heard: May 11, 2023, in Halifax, Nova Scotia Held: Appeal dismissed, per reasons for judgment of Farrar J.A.; Bryson and Derrick JJ.A. concurring Counsel: Danielle St.

George and Alexandria Muise-Hennessey, for the appellant Roderick Rogers, K.C. and Paula Arab, K.C., for the respondent Worker’s Compensation Board of Nova Scotia Alison Hickey, for the respondent Workers’ Compensation Appeals Tribunal (watching brief only) Reasons for judgment: [ 1 ] The appellant, Richard Tufts, worked for GDI Services as a cleaner.

He was assigned to perform a range of cleaning tasks at Alderney Gate in Dartmouth. [ 2 ] As found by the Workers’ Compensation Appeals Tribunal (“WCAT”), the appellant clocked in to his shift on August 17, 2020, and subsequently went to a small private washroom on the second floor. He first used the washroom facilities and then performed a religious cleansing ritual, wuḍū, which involves pouring water over parts of the body, including the feet.

While putting one of his socks back on, the appellant slipped and fell onto the floor, injuring his back. [ 3 ] On August 20, 2020, GDI submitted an accident report to the Workers’ Compensation Board (“WCB”) in relation to the incident.

GDI also filed a letter with the WCB, objecting to the appellant’s claim on the basis the accident occurred as a result of a personal, non-work-related activity. [ 4 ] In a decision dated September 22, 2020, a WCB Case Worker found the appellant did not suffer a personal injury by accident arising out of and in the course of his employment, pursuant to s. 10(1) of the Workers’ Compensation Act , S.N.S. 1994-95, c. 10 , and WCB Policy 1.3.7R.

Specifically, the Case Worker concluded at the time of the injury the appellant was not working or performing a job duty, but rather performing a religious ceremony unconnected to his work. As such, the Case Worker found there was no causal connection between the appellant’s work and his injury. [ 5 ] The appellant appealed the Case Worker’s decision. In a decision dated November 19, 2020, a WCB Hearing Officer found the appellant had not sustained a personal injury by accident arising out of and in the course of his employment.

The Hearing Officer concluded the appellant took himself out of his employment to wash his feet for personal reasons and, as such, the requirements of s. 10(1) of the Act were not met. [ 6 ] The appellant appealed the Hearing Officer’s decision. On March 30, 2021, WCAT conducted an oral hearing where the appellant testified and his representative provided oral submissions. [ 7 ] On May 24, 2021, WCAT denied the appellant’s appeal (WCAT #2020-477-AD). WCAT found there was no causal connection between the appellant’s injury and the risk created by his employment.

It concluded the appellant did not sustain an injury arising out of his employment. [ 8 ] On June 25, 2021, the appellant filed a Notice of Application for Leave to Appeal (Workers’ Compensation). On June 16, 2022, this Court issued an Order granting leave to appeal. Issues [ 9 ] The sole issue on which leave to appeal was granted was whether WCAT erred on a question of law or jurisdiction in the application and

interpretation of s. 10(1) of the Act and WCB Policy 1.3.7R, in finding the appellant did not sustain a personal injury by accident arising out of and in the course of employment when he was injured on August 17, 2020. [ 10 ] In his factum, the appellant has characterized the errors as follows: 1. WCAT erred in concluding the injury did not arise out of employment because the activity engaged in at the time was not

incidental to employment; 2. WCAT erred in its

interpretation of the requirement the injury arise due to a risk related to employment; 3. WCAT erred in its

interpretation of activity incidental to employment; 4. WCAT erred in concluding that an accommodation by the Employer would not be incidental to employment; and 5. WCAT erred in concluding the facts identified were sufficient to rebut the presumption which informs the

interpretation of s.10(1) of the Act. [11] I will address the alleged errors as they are characterized by the appellant. Standard of Review [12] In December 2019, the Supreme Court of Canada released its decision in Canada (Minister of Citizenship and Immigration) v.Vavilov, 2019 SCC 65. In Vavilov, the Court found courts reviewing the decisions of administrative tribunals must apply appellatestandards of review where there is a statutory right of appeal (Vavilov, at ¶37). [13] Section 256(1) of the Act provides a statutory right of appeal to the Court of Appeal, with leave, only on questions of law orjurisdiction: Appeal to Court of Appeal 256

(1) Any participant in a final order, ruling or decision of the Appeals Tribunal may appeal to the Nova Scotia Court ofAppeal on any question as to the jurisdiction of the Appeals Tribunal or on any question of law but on no question of fact. [14] In Vavilov, the Court directed appellate courts must respect the legislative intention in considering questions of law and applythe standard of correctness in accordance with Housen v.

Nikolaisen, 2002 SCC 33: [37] It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to acourt, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard isto be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where,for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questionsof statutory

interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness inaccordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8.

Where the scope of the statutory appeal includesquestions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed factand law where the legal principle is not readily extricable) […] [15] The only circumstance in which this Court can review WCAT’s factual findings is where there is no supporting evidence fromwhich the finding of fact can be made or the inference reasonably drawn. This is because a finding of fact based on no evidence isarbitrary.

This would transform WCAT’s error into an error of law (see: International Association of Fire Fighters, Local 268 v.Adekayode, 2016 NSCA 6, at ¶42; Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry), 2016 NSCA 28, at ¶23). ForWCAT appeals which have raised an issue of fact see Martell v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2007 NSCA107, at ¶26 (no evidence – error of law); and Young v.

Nova Scotia (Workers’ Compensation Appeals Tribunal), 2009 NSCA 35, at¶21-24 (error of fact – no right of appeal). [16] The distinction between a question of law and a question of mixed fact and law is sometimes difficult to discern. The SupremeCourt of Canada has provided guidance in Teal Cedar Products Ltd. v. British Columbia, 2017 SCC 32: [43] The process for characterizing a question as one of three principal types — legal, factual, or mixed — is also well-established inthe jurisprudence (Canada (Director of Investigation and Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, atpara. 35).

In particular, it is not disputed that legal questions are questions “about what the correct legal test is” (Sattva, at para. 49,quoting Southam, at para. 35); factual questions are questions “about what actually took place between the parties” (Southam, at para.35; Sattva, at para. 58); and mixed questions are questions about “whether the facts satisfy the legal tests” or, in other words, theyinvolve “applying a legal standard to a set of facts” (Southam, at para. 35; Sattva, at para. 49, quoting Housen v.

Nikolaisen, 2002 SCC33, [2002] 2 S.C.R. 235). [44] That said, while the application of a legal test to a set of facts is a mixed question, if, in the course of that application, theunderlying legal test may have been altered, then a legal question arises. For example, if a party alleges that a judge (or arbitrator) whileapplying a legal test failed to consider a required element of that test, that party alleges that the judge (or arbitrator), in effect, deleted thatelement from the test and thus altered the legal test.

As the Court explained in Southam, at para. 39: . . . if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considersonly A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct testrequires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.

Such an allegation ultimately challenges whether the judge (or arbitrator) relied on the correct legal test, thus raising a question of law(Sattva, at para. 53; Housen, at paras. 31 and 34-35). Accordingly, such a legal question, if alleged in the context of a dispute under theArbitration Act, and assuming the other jurisdictional requirements of that Act are met, is open to appellate review. These “extricablequestions of law” are better understood as a covert form of legal question — where a judge’s (or arbitrator’

s) legal test is implicit to theirapplication of the test rather than explicit in their description of the test — than as a fourth and distinct category of questions. [45] Courts should, however, exercise caution in identifying extricable questions of law because mixed questions, by definition,

involve aspects of law. The motivations for counsel to strategically frame a mixed question as a legal question — for example, to gain jurisdiction in appeals from arbitration awards or a favourable standard of review in appeals from civil litigation judgments — are transparent ( Sattva , at para. 54; Southam , at para. 36). A narrow scope for extricable questions of law is consistent with finality in commercial arbitration and, more broadly, with deference to factual findings.

Courts must be vigilant in distinguishing between a party alleging that a legal test may have been altered in the course of its application (an extricable question of law; Sattva , at para. 53), and a party alleging that a legal test, which was unaltered, should have, when applied, resulted in a different outcome (a mixed question). [Emphasis added.] [ 17 ] Questions of mixed fact and law do not constitute questions of law unless there is an “extricable question of law” ( Teal Cedar Products , at ¶44), or where the “question of law … can be easily separated from the question of mixed law and fact and should be reviewed on the standard of correctness” ( Halifax (Regional Municipality) v.

Hoelke , 2011 NSCA 96 , at ¶14). [ 18 ] In Alberta (Workers’ Compensation Board) v. Appeals Commission , 2005 ABCA 276 , the Alberta Court of Appeal summarizes the concept of an extricable error of law as follows: [29] The concept of an extricable legal error can be difficult to understand. In Housen at para. 36 , the Supreme Court provided clarification. In that case the alleged error was a finding of negligence, a question of mixed fact and law.

The Court noted that when the error in a finding of negligence can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test or a similar error in principle, such an error can be characterized as an extricable error of law. However, when the issue on appeal involves a trial judge’s

interpretation of the evidence as a whole, or the application of the correct legal test to the evidence, there is no extricable error of law. [ 19 ] To summarize, the standard of review is as follows: 1. WCAT’s decisions on questions of law or jurisdiction are subject to review on a standard of correctness; 2. The application of a legal test to a set of facts is a question of mixed law and fact which is not subject to an appeal to this Court.

However, the application of a legal test may be transformed into an error of law if WCAT, while applying the legal test, fails to consider a required element of that test; and 3. Questions of fact are not reviewable by this Court unless there is no evidence upon which to base the finding of fact. A finding of fact made without evidence is an error of law. [ 20 ] This is the standard I will apply when addressing the issues raised by the appellant.

Analysis Arising Out of and in the Course of Employment [ 21 ] Before addressing the issues raised by the appellant, I will set out an overview of the law on the question of whether an injury arises out of and in the course of employment. [ 22 ] To be eligible for compensation under the Act , a worker must suffer personal injury by accident arising out of the in the course of employment: Payment of compensation 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. [ 23 ] The test in s. 10(1) of the Act is also informed by the presumption contained in s. 10(4) of the Act :

(4) Where the accident arose out of employment, unless the contrary is shown, it shall be presumed that it occurred in the course of employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. [ 24 ] Under s. 183 of the Act , the WCB has issued a Policy to assess entitlement to compensation pursuant to s. 10(1) of the Act . [ 25 ] In Guy v. Nova Scotia (Workers' Compensation Appeals Tribunal) , 2008 NSCA 1 , this Court confirmed the WCB Policies, pursuant to s. 183 of the Act , have the force of law: [14] The WCB is entitled by s. 183 of WCA to adopt policies “consistent with”

Part I of WCA and the regulations. These policies are expressly by statute binding on the WCB and on WCAT, although in the case of WCAT, only to the extent that they are consistent with WCA and the regulations: s. 183(5) and 183(5A). These policies are not, therefore, informal administrative guidelines. 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. [26] The requirements that the accident arise “out of” and “in the course of” employment were explained in Canada Post Corp. v.Nova Scotia (Workers’ Compensation Appeals Tribunal), 2007 NSCA 129: [43] […] The requirement that the accident arise “in the course of employment” is concerned with the time, place and circumstancesof the accident while the requirement that it arise “out of employment” is concerned with the origin of the cause of the injury [citationsomitted] [27] Arising out of employment is concerned with the origin of the cause of the injury. [28]

Section 3(

a) of the Policy provides guidance on the requirement that “the accident arise out of” employment: 3. Determining if an accident arose out of and in the course of employment The WCB generally considers the following principles and questions in determining if a personal injury by accident arose out of and inthe course of employment.

a) Description of “arising out of” employment The words “arising out of employment” refer to the origin of the cause of the injury. For an accident, and resulting injury, to beconsidered to have arisen out of employment there must be a causal connection between the worker’s employment and the injury theyreceived. Generally, this means the accident and resulting injury must be caused by some risk related to the employment. The risk may be directly,or incidentally, related to the employment; and the injury may be the result of a single incident, or develop over a period of time.

Aninjury, however, is not necessarily compensable simply because it happened, or symptoms occurred, at the workplace. [Emphasis added.] [29] In the course of employment is concerned with the time, place and circumstances of the accident. [30] Courts have rejected the transfer of common law causation principles to the “arising out of employment” requirement. InPuddicombe v. Nova Scotia (Workers’ Compensation Board), 2005 NSCA 62, Cromwell J.A. held: [28] Similarly, courts have rejected the simple transfer of common law causation principles to the “arising out of employment”requirement.

In remarks approved by the Supreme Court of Canada, Donald, J.A. said in Kovach v. British Columbia (Workers’Compensation Board), (BC CA), [1999] 1 W.W.R. 498; [1998] B.C.J. No. 1245 (Q.L.)(C.A.); 2000 SCC 3, [2000] 1 S.C.R. 55: No single theory of causation can be said to be infallible or universally applicable. What works for a tort system may be unsuitable for ano fault scheme. It all depends on the policy goals of the system. [31]

Section 3(

b) of the Policy also provides guidance on the “in the course of” requirement:

b) Description of “in the course of” employment Generally, an accident, and resulting injury, is considered to have arisen in the course of employment when it occurs under the followingcircumstances: i. at a time that is consistent with when the worker typically performs the employment, or at a time when the workerhas been asked to perform activities for the employment; ii. at a place that is consistent with the employment or the employer’s premises; and iii. while performing an activity directly, or incidentally, related to the employment.

The time and place of an accident, however, are not strictly limited to the normal hours of employment or the employer’s premises; theforgoing are intended to be general principles. [32] In Puddicombe, this Court held “the phrase, “in the course of employment” does not simply refer to things done pursuant to acontractual duty, but also to things reasonably incidental to the performance of the contractual duty” (Puddicombe, at ¶27). [33]

Section 3(

c) of the Policy sets out the following ten questions that may be part of the consideration to determine if an accident,and resulting injury, arose out of and in the course of employment:

c) Questions considered - “arising out of and in the course of employment” In gathering evidence to determine if an accident, and resulting injury, arose out of and in the course of employment the WCB considersa series of questions that may include, but is not limited to, the following:

i. Was the activity part of the job, or a job requirement? ii. Did the accident occur when the worker was in the process of doing something for the benefit of the employer? iii. Did the injury occur while the worker was doing something at the instruction of the employer? iv. Did the injury occur while the worker was using equipment or materials supplied by the employer? v. Was the injury caused by some activity of the employer or another worker? vi. Was the worker being paid or receiving some consideration for the activity from the employer at the time of the accident? vii.

Was the worker on the employer’s premises at the time of the accident? viii. Was the worker traveling for employment purposes at the time of the accident? ix. Did the workers’ employment expose them to a greater risk of injury than they would have been exposed to as a member of thegeneral public? x.

Was the injury caused by an exposure in the workplace, or as part of the employment activities? [34] In Puddicombe, Justice Cromwell found whether an accident arises out of and in the course of employment is a fact-drivenexercise: [30] I would conclude that the nature of the problem before the Tribunal informs the standard of review analysis as follows. Itsuggests that the broad principles to be deduced from the statutory requirement are matters of general law, but that these guiding legalprinciples must of necessity be of a highly general character.

Courts should be leery of attempting to rule this area at anything other thanthe level of general principle. History does not bode well for success in generating detailed rules or guidelines. Beyond those general,guiding principles, the application of the “arising out of and in the course of employment” requirement is a fact-driven exercise whichmust be undertaken in light of the broad policies and purposes of the workers’ compensation system.

When WCAT is operating in thatsphere, the nature of the exercise supports a measure of deference to that highly specialized tribunal. [Emphasis added.] [35] In Canada Post Corp., this Court again considered s. 10(1) of the Act: [14] The

interpretation of these statutory provisions is a question of law. This supports less, rather than more, deference. Theapplication of the provisions to the particular facts of specific cases is a question of mixed law and fact and is central to the operation ofthe whole specialized workers’ compensation scheme. This supports a measure of deference. [36] Under s. 150 of the former Act, “the question whether an injury has arisen out of or in the course of an employment under theAct was deemed to be a question of fact for the Board” (Reeves v.

Nova Scotia (Workers' Compensation Appeal Board) (1990), (NS CA), 98 N.S.R. (2d) 438 (NSSC AD)). [37] A review of the Act, Policy and the caselaw leads to the following principles when determining whether an accident arose outof and in the course of employment: • Arising out of employment is concerned with the origin of the cause of the injury; • Arising in the course of employment it is concerned with the time, place and circumstances of the accident; • An injury is not necessarily compensable simply because it happened, or because it occurred at the workplace; • The application of the arising out of and in the course of employment requirement is a fact-driven exercise which must beundertaken in light of the broad policies and purposes of the workers’ compensation scheme. [38] With this background, I will now address the issues in the order they are raised by the appellant in his factum.

WCAT erred in concluding the injury did not arise out of employment because the activity engaged in at the time was not incidental toemployment [39] I would summarize the appellant’s argument on this issue as follows: • WCAT reached the conclusion that he was in the course of his employment at the time of the accident, therefore, thepresumption applies and the accident is deemed to have arisen out of his employment; • WCAT erred in adopting a “checklist approach” to the ten questions in the Policy; and • WCAT focused on whether the activity was incidental to employment to determine causation. [40] The appellant argues that “[w]hile not explicitly stated, reading the Decision as a whole shows that WCAT concluded, based onits findings of fact, that Mr.

Tufts was in the course of his employment at the time of the accident”. [41] I do not read WCAT’s decision as concluding the accident arose in the course of his employment.

[ 42 ] On two occasions, in its decision, WCAT refers to the presumption in s. 10(4) having been rebutted. First, in the “issue and outcome” portion of the decision WCAT concludes: Did the Worker sustain a compensable back injury on August 17, 2020? No. The evidence is sufficient to rebut the presumption in s. 10(4). The Worker’s injury did not arise out of his employment. [ 43 ] The second time it is mentioned is after referring to another WCAT decision where a worker injured herself in the employer’s washroom. In that decision, WCAT found that the presumption had been rebutted.

After reviewing the decision, WCAT concluded: The presumption in s. 10(4) has been rebutted in this case also. [ 44 ] Although WCAT could have been clearer in its reference to the presumption, in its express findings on the evidence it did not find the injury arose in the course of his employment.

What WCAT was meaning to express was the presumption was not triggered. [ 45 ] WCAT set out the questions above from the Policy and held overall consideration of these questions did not favour a finding that the injury arose out of and in the course of employment: • I find that overall consideration of these questions does not favour a finding that the injury arose out of and in the course of employment . The Worker’s activity was not a job requirement and was not being performed for the benefit of the Employer or at the instruction of the Employer.

The Employer’s instruction to, in general, perform the ritual as quickly as possible, does not equate to the activity being at the instruction of the Employer. (p. 4) • [The Appellant] was performing a personal ritual that was not incidental to employment. (p. 4) • The Worker’s performance of cleansing/prayer rituals could be considered an imported personal hazard as it is a risk specific to the Worker and not incidental to employment. (p. 7) • I do not find that the Worker’s performance of cleansing/prayer rituals was incidental to this employment. (p. 7) • I find that the Worker’s cleansing and prayer rituals significantly deviated from this regular employment activities and lasted for more than a brief interlude. (p. 7) • I find the circumstances in 2011-167-AD are distinguishable from the Worker’s situation and ultimately it supports a finding that when the Worker decided to use the washroom to perform a personal religious practice, he took himself outside the course of his employment so that his injury did not arise out of his employment. (p. 7) • Ultimately, I find he was not engaged in activities reasonably incidental to his employment at the time he suffered the injury. (p. 8) [Emphasis added.] [ 46 ] When WCAT discussed whether the worker’s activities were incidental to his employment it is applying the provisions of the Policy and, in particular, 3(b), which refers to the description of “in the course of” employment, including performing work incidental to employment: (

b) Description of “in the course of” employment […] iii. while performing an activity directly, or incidentally , related to the employment. […] [ 47 ] WCAT was clearly following the Policy in concluding the appellant was not engaged in activity incidental to his employment.

The injury was not in the course of his employment. [ 48 ] As noted, WCAT concluded that the presumption was not triggered because the injury did not arise in the course of his employment. [ 49 ] WCAT appropriately considered the “non-exhaustive” list of questions set out in the Policy in order to assess whether there was an accident which arose out of and in the course of employment. WCAT properly followed the Board Policy and applied the applicable law to the facts of the appellant’s case. [ 50 ] WCAT recognized an individual may be in the course of employment when engaged in incidental activities.

However, that was not the case here. In some cases a worker may be considered to be in the course of employment while engaged in incidental activities and may not cease to be in the course of employment while using washroom facilities or having a lunch or coffee break, but generally an injury that occurs in these situations will only be considered to have arisen out of employment if the causative significance of the employment is more than trivial.

I do not find that the Worker’s performance of cleansing/prayer rituals was incidental to his employment. [Decision, at p. 7] [ 51 ] WCAT found the appellant’s cleansing and prayer rituals were not incidental to his employment and so they could not have been in the course of employment. Having found the activity causing the injury did not relate to the appellant’s employment activities and was not caused by some activity of the employer, WCAT found the injury also did not arise out of his employment. This is a finding of fact based on the evidence and is not subject to review by this Court.

[ 52 ] Even if I was satisfied from reading WCAT’s decision as a whole that it found the appellant was in the course of his employment when he suffered his injury, there was ample evidence before WCAT to rebut the presumption and find it did not arise out of his employment. WCAT erred in its

interpretation of the requirement the injury arose due to a risk related to employment [ 53 ] The second issue raised by the appellant suggests WCAT applied the law wrongly to the facts of his case when it examined the ninth question in the Policy and concluded his employment did not expose him to a greater risk of injury than he would have been exposed to as a member of the general public. [ 54 ] The appellant argues WCAT focused heavily on fault, which is improper in a no-fault system, and WCAT wrongly applied the risk principle as it relates to the causal connection which has to be demonstrated between the worker’s employment and the injury he received. [ 55 ] I do not see WCAT’s reasons as focusing on the appellant’s “fault” in causing the accident.

I agree with the appellant the “fault” for an injury has no place in the workers’ compensation system.

There is no part of WCAT’s decision where it expressly states or implies the appellant is at fault for his own injuries. [ 56 ] WCAT made the following findings of fact: • There was no link between his employment duties and his decision to enter the washroom. (p. 6) • There was no risk associated with his employment that led to the injury; (p. 8) and, • There was “no causal connection between the activities leading to the Worker’s injury and a risk created by his employment”. (p. 8) [ 57 ] The appellant’s real complaint under this issue is not how WCAT assessed risk; it is his disagreement with these findings of fact and his belief that because the accident occurred in the Employer’s washroom, his employment “contributed to the injury at least in

part in a non-negligible way” (appellant’s factum, at ¶63). [ 58 ] However, that is not the law. There is no presumption of compensation just because the accident occurs on the employer’s premises. This is confirmed by the Policy, which clearly states with respect to the “arising out of employment” requirement: 3. (a) […] An injury, however, is not necessarily compensable simply because it happened, or symptoms occurred, at the workplace. [ 59 ] This was also commented on in Michelin North America (Canada) v.

Ross , 2002 NSCA 166 , where this Court noted: [40] […] Contrary to the Tribunal’s holding based on its erroneous reading of Durnford, it cannot be said that simply because the condition manifests itself at work that the condition or its symptoms arise out of or in the course of employment. [ 60 ] WCAT correctly followed the law as set out in Puddicombe where Cromwell J.A. said the following about the link between risk and employment: [40] The second aspect of the inquiry is concerned with the strength of the link between the injury and the risk created by employment. This was discussed by Rand, J. in Noell .

He observed, at p. 369 that the purpose of workers’ compensation legislation is to protect employees against the risks to which they are exposed by reason of their employment. The focus under this approach is not so much on the nature of the job but on the scope of the risk to which the work exposes the employee and the link between that risk and the employee’s injury. This aspect relates most clearly to the “arising out of employment” requirement: it is the employment that is seen as creating the risk and the question is whether the injury arises out of that risk .

Injuries while travelling to work are generally excluded by this principle because the risks of getting to work are the general risks of life, not risks of employment. [Emphasis added.] [ 61 ] In Gillis-Andrea v.

Nova Scotia (Workers’ Compensation Appeals Tribunal) , 2010 NSCA 29 , this Court reiterated the two main principles to be applied when considering whether an injury arose out of and in the course of employment were “the nature of the work and the link between the activity of the employee giving rise to the injury and the risk of the work” (at ¶17). [ 62 ] WCAT correctly set out and applied the law, which was to assess the strength of “the link between the injury and the risk created by employment” ( Puddicombe ) or “the link between the activity of the employee giving rise to the injury and the risk of the work” ( Gillis-Andrea ).

WCAT assessed all of the questions in the Policy and considered the risk to which the appellant’s work or employment exposed him. It concluded his employment had not exposed him to any greater risk of injury than any member of the general public may face. [ 63 ] WCAT found there was nothing about the workplace which presented an “added risk” to the appellant or placed him at a greater risk of injury than a member of the public. Its decision, correctly, applies the law on arising out of employment to the facts it found.

Ultimately, WCAT found as a fact there was no risk associated with his employment that led to the injury. It was not an error for WCAT to consider risk in this context, nor did WCAT incorrectly address the issue of “fault”. WCAT erred in its

interpretation of activity incidental to employment [ 64 ] Under this issue, the appellant argues WCAT erred in its

interpretation of whether an activity is incidental to employment. With respect, this is a veiled attempt to challenge WCAT’s findings of fact. [ 65 ] The appellant does not identify where WCAT misapplied the law. WCAT was aware of and correctly cited and applied the law

– including the ten questions in the Policy – and made the following findings of fact with respect to the appellant’s case as it relates to the Policy: • The Worker’s activity was not a job requirement; (p. 4) • The Worker’s activity was … not being performed for the benefit of the Employer; (p. 4) • The Worker’s activity was not being performed at the instruction of the Employer and [t]he Employer’s instruction to, in general, perform the ritual as quickly as possible, does not equate to the activity being at the instruction of the Employer; (p. 4) and, • The injury was not caused by an activity of the Employer or another Worker. (p. 4) [ 66 ] The appellant critiques WCAT for failing to follow the direction in Puddicombe , namely whether an activity engaged in by the worker at the time of injury is in the course of employment “does not simply refer to things done pursuant to a contractual duty, but also to things reasonably incidental to the performance of the contractual duty” ( Puddicombe , at ¶37). [ 67 ] WCAT was well aware an injury may be reasonably incidental to employment – and thus in the course of employment – even when a worker is on a break, when it stated: In some cases, a worker may be considered to be in the course of employment while engaged in incidental activities and may not cease to be in the course of employment while using washroom facilities or having a lunch or coffee break, but generally an injury that occurs in these situations will only be considered to have arisen out of employment if the causative significance of the employment is more than trivial. [Decision, at p. 7] [ 68 ] WCAT made clear findings of fact on four separate occasions that it was not satisfied the appellant’s activities were reasonably incidental to employment.

For ease of reference, I will repeat those findings: • He was performing a personal ritual that was not incidental to his employment. • The Worker’s performance of cleansing/prayer rituals could be considered an imported personal hazard as it is a risk specific to the Worker and not incidental to his employment. • The Worker’s performance of cleansing/prayer rituals was not incidental to his employment. • He was not engaged in activities reasonably incidental to his employment at the time he suffered the injury, and he was not at an increased risk created by his employment. [ 69 ] WCAT was aware of the other factors which pointed towards the appellant being in the course of employment – the fact he was being paid at the time of the accident and the fact he was on the Employer’s premises – but, following an overall consideration of the facts before it, WCAT was not satisfied that the appellant’s activities were reasonably incidental to employment.

Again, this is a finding of fact based on WCAT’s reviewing and weighing the evidence. It is not subject to review by this Court.

WCAT erred in concluding an accommodation by the employer would not be incidental to employment [ 70 ] WCB says this Court should not consider this issue on the basis the alleged error of law – whether WCAT erred in failing to presume any time a person is being accommodated that they are engaged in activities reasonably incidental to employment – is speculative and does not arise because WCAT found as a fact the appellant was not being accommodated. [ 71 ] After reviewing the evidence the appellant put forward to show the employer accommodated the worker, WCAT rejected it: […] I do not find this is evidence that the employer accommodated the Worker’s religious practices […] [Decision, at p. 5] [ 72 ] I agree with the WCB – WCAT found as a fact the appellant was not being accommodated at the time of his injury.

However, since both parties have argued it in their facta, I will address the issue. [ 73 ] I reject the appellant’s position for essentially the three reasons set out in WCB’s factum. [ 74 ] First, it does not follow any that activity permitted as part of an accommodation process will necessarily become a work-related activity. The confines of the duty to accommodate in any given situation are flexible and shaped by the unique needs and limitations of all parties to an employment relationship.

While some activities pursued as part of a human rights accommodation will undoubtedly be work-related – particularly those which have a direct impact on how work is to be performed – others will not be, depending on the facts of the case. [ 75 ] Second, this Court should be wary of grafting a common law presumption onto s. 10(1) of the Act so an accommodation at work means a worker who suffers an accident will automatically be found to be “in the course of employment” rather than taking a contextual approach.

In Puddicombe , this Court warned of the dangers of trying to add or create firm rules or guidelines to the “arising out of and in the course of employment” requirements: As a result of the generality of the statutory language and the array of situations to which it must be applied, Courts have generally despaired of reducing the “arising out of and in the course of employment” requirement to a set of rules or even firm guidelines. […] More recently, the House of Lords approved the remarks of Sir John Donaldson, M.R. in Nancollas v. Insurance Officer , [1985] 1 All

E.R. 833 (C.A.) at 840 pointing out that it is not possible to lay down firm rules or even guidelines for the application of this requirementother than the need to look “... at the factual picture as a whole and [to reject] any approach based on the fallacious concept that any onefactor is conclusive.” (See Smith (Administratrix of Machin) v. Stages, [1989] H.L.J. 30 at para. 45). [Emphasis added.] [76] Third, the dangers of adopting the approach which the appellant advocates can be seen in WCAT Decision 2018-209-AD.

Inthat case, the worker had hearing loss and it was a condition of the worker’s employment he have functioning hearing aids at all times.One of the worker’s hearing aids failed during a shift. He left work to get the hearing aid fixed and was involved in a motor vehicleaccident, suffering a shoulder injury. [77] The worker’s representative argued this was not a typical commuter case because the worker had an “accommodation” for hishearing loss.

This was a condition of his employment and it was argued his travel was directly related to his employment duties and thefact it required travel at that time of day put him at an increased risk (Decision 2018-209-AD, at p. 9). [78] WCAT rejected the worker’s submissions and found the injury did not arise out of and in the course of employment: I find it would be stretching the boundaries of activities that are incidental to employment and beneficial to an employer to find that theWorker’s decision to have his hearing aids replaced so that he could return to work and complete his shift, constituted activitiesincidental to his employment, at the direction of his Employer, or for the benefit of his Employer.

I am sympathetic to the Worker’ssituation, but I am unable to find that he has sustained a compensable injury under the Act. [Decision, at p. 11] [79] The result of the appellant’s proposed presumption would be the worker would automatically be found to be in the course ofemployment, thus triggering the presumption under s. 10(4) of the Act in cases like Decision 2018-209-AD. There is no good reason todepart from the contextual analysis WCAT applies to each case where it must consider, under the Act and Policy, whether an injury aroseout and in the course of employment.

WCAT erred in concluding the facts identified were sufficient to rebut the presumption [80] I have already addressed this argument under the first issue. [81] The appellant argues because WCAT implicitly concluded his injury arose in the course of employment, the presumption in s.10(4) of the Act was triggered so it was presumed the accident arose out of employment unless there was “such evidence presented thatwould preclude the finding that the other condition was also to be presumed to be present” (Pye v. Nova Scotia (Workers’ CompensationBoard) (1992), (NS SC), 117 N.S.R. (2d) 403, at ¶64).

The appellant disputes WCAT’s findings of fact with respectto the evidence surrounding causation, and claims, as he did with respect to the first issue raised, the evidence supports his view thecausative significance of the employment is more than trivial. [82] A reading of WCAT’s decision in context shows WCAT did not find the presumption was triggered because neither of therequirements in s. 10(1) of the Act were satisfied. Respectfully, and, in any event, even if the presumption was triggered, the evidencewas sufficient to rebut it. [83] It is not the role of this Court to reweigh WCAT’s findings of fact.

Conclusion [84] I would dismiss the appeal without costs to any party. Farrar J.A. Concurred in: Bryson J.A. Derrick J.A.