Docket: CACV2011 Workers' Compensation Board of Saskatchewan (Respondent) Appellant - v. -, 2012 SKCA 10

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 10 Date: 20120209 Between: Docket: CACV2011 Workers' Compensation Board of Saskatchewan (Respondent) Appellant - and - Bryan Mellor (Applicant) Respondent Coram: Vancise, Ottenbreit & Caldwell JJ.A. Counsel: Leonard D. Andrychuk, Q.C. for the Appellant Kevin C. Mellor, for the Respondent Appeal:

From: 2010 SKQB 387 Heard: October 14, 2011 Disposition: Appeal Allowed Written Reasons: February 9, 2012 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Vancise The Honourable Mr. Justice Ottenbreit Caldwell J.A. I. Overview [ 1 ] The Workers’ Compensation Board of Saskatchewan (the “WCB”) appeals from the decision of a Queen’s Bench chamber judge sitting in judicial review of the decision of the Board of the WCB (the “Board”) (see 2010 SKQB 387 ).

In his decision, the chamber judge found the Board had incorrectly interpreted its governing statute and, therefore, the chamber judge quashed the decision of the Board which had denied an appeal brought by Bryan Mellor. In the result, the chamber judge remitted the matter back to the Board for re-adjudication in accordance with the law. [ 2 ] This appeal raises two issues: (

i) whether the chamber judge erred in determining the applicable standard of judicial review; and (ii) whether, on the applicable standard of review, the chamber judge erred in quashing the Board’s decision which denied Mr. Mellor’s appeal. Following an outline of the relevant facts and law, I deal with each of these issues in turn; but, in

summary, I find the chamber judge erred when he determined correctness was the applicable standard of judicial review in this case and, on the applicable standard of reasonableness, that the chamber judge erred in quashing the Board’s decision in this matter. II. Background [ 3 ] Mr. Mellor was injured at work on October 30, 1981. Since that time, he has been entitled to and has received earnings replacement benefits equal to 75% of his loss of earnings pursuant to s. 68(1) of The Workers’ Compensation Act, 1979 , S.S. 1979, c. W- 17.1 (the “Act”). Under s. 69(1) of the Act, the calculation of Mr.

Mellor’s loss of earnings is based on the difference between his average weekly earnings at the commencement of his loss of earnings ( i.e. , his date of injury), increased annually by the percentage increase in the Consumer Price Index (“CPI”), less the earnings that he was estimated to be capable of earning after his injury. [ 4 ] Section 70(1) of the Act defines a worker’s “average weekly earnings” as 1/52 nd of the worker’s gross annual earnings; but, under s. 70(2) , a worker’s average weekly earnings are deemed not to exceed 1/52 nd of the “maximum wage rate” in effect at the commencement of the worker’s loss of earnings ( i.e. , the date of injury).

The Act actually sets out two maximum wage rates for workers. Under ss. 2(n), 38 and 38.1 the maximum wage rate for workers injured prior to September 1, 1985 (“Gross Earnings Workers”) is different from those injured after that date (“Net Earnings Workers”). [ 5 ] For Gross Earnings Workers, like Mr. Mellor, s. 68(1)(

a) of the Act provides that compensation is based on 75% of the worker’s gross loss of earnings without any deduction.

Section 38 requires the WCB to conduct an annual review of the wages of Gross Earnings Workers who suffered injury and received compensation in the year under review so as to determine the maximum wage rate applicable to workers injured in the following year. Where the annual review indicates 10% or more of those Gross Earnings Workers earned in excess of the then maximum wage rate, s. 38 requires the WCB to increase the maximum wage rate for injuries occurring on and after January 1 st of the succeeding year.

The increase is the amount to the nearest $1,000 which is necessary to reduce the percentage of Gross Earnings Workers earning in excess of the maximum wage rate to less than 10%. In sum, the maximum wage rate for Gross Earnings Workers injured in a year is established annually based on worker’s earnings from the previous year and remains fixed at that amount by virtue of s. 70(2). However, by policy, the WCB has allowed the maximum wage rate for Gross Earnings Workers to increase annually in accordance with its annual review under s. 38 (the “Cap Adjustment Policy”).

In 2007, the s. 38 maximum wage rate reached $57,000 per year and is currently $73,000 per year (see: WCB POL 15/2011). [ 6 ] For Net Earnings Workers, ss. 68(1)(

b) and 68(3)(

b) of the Act sets out a model of compensation under which an injured worker’s compensation is based on 90% of net earnings. A worker’s net earnings are determined by deducting from gross earnings probable amounts for income taxes and for Canada Pension Plan and employment insurance premiums applicable to the worker. In 1981, s. 38.1 established a fixed maximum wage rate of $48,000 per year for Net Earnings Workers.

Section 38.1 was later amended to provide for fixed increases in the maximum wage rate to $55,000 per year, the last of which came into effect in 2005. In sum, the maximum wage rate for Net Earnings Workers is currently fixed at $55,000 per year by legislation.

[ 7 ] Mr. Mellor’s actual gross earnings at the time of his injury were $504.13 per week. This exceeded the 1981 maximum wage rate under s. 38 of $461.54 per week. As a result, the WCB calculated Mr. Mellor’s average weekly earnings at the commencement of his loss of earnings at $461.54. His initial weekly compensation was 75% of that amount, or $346.16. Since then, Mr. Mellor’s average weekly earnings have increased in accordance with s. 69(1)(

a) and the Cap Adjustment Policy. If the increase in any year resulted in an average weekly earnings less than that year’s maximum wage rate, the WCB calculated Mr. Mellor’s earnings replacement benefit based on his average weekly earnings, the lesser amount; however, if Mr. Mellor’s average weekly earnings exceeded the maximum wage rate, the WCB calculated his earnings replacement benefit based on the maximum wage rate, again the lesser amount. [ 8 ] In addition to these annual calculations, when establishing Mr. Mellor’s annual earnings replacement benefits, the WCB indexed its estimate of his earning capacity for the purposes of s. 69(1)(

b) by the CPI and thereby avoided an annual earnings review in each year. WCB did this not only in respect of Mr. Mellor, but for each of the thousands of workers to whom it paid compensation. [ 9 ] In Mr. Mellor’s case, annual earnings replacement benefit calculations were consistently made on the basis of the maximum wage rate under s. 38, as adjusted by the Cap Adjustment Policy, for over 25 years. Then, in 2007, the WCB adopted internal policy POL 17/2007 (the “2007 Policy”).

Under the 2007 Policy, the maximum wage rate for any Gross Earnings Worker became subject to s. 38.1, which had previously only applied to Net Earnings Workers. The effect of the 2007 Policy was to limit the maximum wage rate for all Gross Earnings Workers to $55,000 and to put them on even footing with Net Earnings Workers with respect to the amount of the maximum wage rate used in the loss of earnings calculation.

The 2007 Policy was superseded annually and the current policy is POL 15/2011, but it has the same substantive effect as the 2007 Policy (the “Even-Footing Policy”). [ 10 ] The consistent and net effect of the Even-Footing Policy is that, for the purposes of s. 70(2), since January 1, 2007 the WCB has applied the maximum wage rate of $55,000 fixed under s. 38.1 in its calculation of the annual adjustment of Mr. Mellor’s compensation under s. 69(1) and that of all Gross Income Workers. [ 11 ] Mr.

Mellor took issue with this new approach to the calculation of his compensation and appealed from the effect of the Even- Footing Policy. The Board rendered its decision (the “Board Decision”) in which it denied Mr. Mellor’s appeal of the Even-Footing Policy and his appeal in two other matters (neither of which is before this Court). Mr. Mellor then applied to the Court of Queen’s Bench for judicial review of the Board Decision. The chamber judge who heard Mr.

Mellor’s application quashed the Board Decision and remitted the matter to the Board to have his appeal re-adjudicated in accordance with the law, as set out by the chamber judge. [ 12 ] The WCB now asks this Court to set aside the Queen’s Bench decision and it asks for its costs in this appeal. III. Analysis [ 13 ] As noted, this appeal raises two issues: (

i) whether the chamber judge erred in determining the applicable standard of judicial review; and (ii) whether, on the applicable standard of review, the chamber judge erred in quashing the Board Decision. 1. What is the appropriate standard of review? [ 14 ] After the hearing of this appeal, the Supreme Court of Canada released its unanimous reasons in Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , 337 D.L.R. (4 th ) 385 (“ CHRC ”). In CHRC , LeBel and Cromwell JJ., speaking for the Court, summarized the import of Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 (“ Dunsmuir ”), and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 (“ Khosa ”), in the field of administrative law and judicial review: [ 15 ] In Dunsmuir and Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339, the Court simplified an analytical approach that the judiciary found difficult to implement.

Being of the view that the distinction between the standards of patent unreasonableness and reasonableness simpliciter was illusory, the majority in Dunsmuir eliminated the standard of patent unreasonableness. The majority thus concluded that there should be two standards of review: correctness and reasonableness. [ 16 ] Dunsmuir kept in place an analytical approach to determine the appropriate standard of review, the standard of review analysis.

The two-step process in the standard of review analysis is first to “ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review” (para. 62). The focus of the analysis remains on the nature of the issue that was before the tribunal under review ( Khosa , at para. 4 , per Binnie J.).

The factors that a reviewing court has to consider in order to determine whether an administrative decision maker is entitled to deference are: the existence of a privative clause; a discrete and special administrative regime in which the decision maker has special expertise; and the nature of the question of law ( Dunsmuir , at para. 55 ). Dunsmuir recognized that deference is generally appropriate

where a tribunal is interpreting its own home statute or statutes that are closely connected to its function and with which the tribunal hasparticular familiarity.

Deference may also be warranted where a tribunal has developed particular expertise in the application of a generalcommon law or civil law rule in relation to a specific statutory context (Dunsmuir, at para. 54; Khosa, at para. 25). [17] Dunsmuir nuanced the earlier jurisprudence in respect of privative clauses by recognizing that privative clauses, which had for along time served to immunize administrative decisions from judicial review, may point to a standard of deference. But, their presence orabsence is no longer determinative about whether deference is owed to the tribunal or not (Dunsmuir, at para. 52).

In Khosa, the majorityof this Court confirmed that with or without a privative clause, administrative decision makers are entitled to a measure of deference inmatters that relate to their special role, function and expertise (paras. 25-26). [18] Dunsmuir recognized that the standard of correctness will continue to apply to constitutional questions, questions of law that areof central importance to the legal system as a whole and that are outside the adjudicator’s expertise, as well as to “[q]uestions regardingthe jurisdictional lines between two or more competing specialized tribunals” (paras. 58, 60-61; see also Smith v.

Alliance Pipeline Ltd.,2011 SCC 7, [2011] 1 S.C.R. 160, at para. 26, per Fish J.). The standard of correctness will also apply to true questions of jurisdiction orvires. In this respect, Dunsmuir expressly distanced itself from the extended definition of jurisdiction and restricted jurisdictionalquestions to those that require a tribunal to “explicitly determine whether its statutory grant of power gives it the authority to decide aparticular matter” (para. 59; see also United Taxi Drivers’ Fellowship of Southern Alberta v. Calgary (City), 2004 SCC 19, [2004] 1S.C.R. 485, at para. 5).

With these principles in mind, I turn to their application to the Board and the Board Decision. [15] In both Dunsmuir and Khosa, the Supreme Court recognized that administrative tribunals are generally entitled to deference inrespect of the legal

interpretation of their own statutes and laws or of closely-connected legal rules. This is the starting point. However,the assumption must be tested, as Dunsmuir directs (at para. 62), by the reviewing court considering first whether the existing case lawhas already determined the degree of deference which should be accorded to the particular category of question before the tribunal.

Ifthat review is not helpful, the reviewing court should then identify the proper standard of review afresh based on the principlesenunciated in Dunsmuir. [16] As to the case law, a substantial body of jurisprudence on the standard of review for Board decisions has developed over theyears in which, for the most part, the reviewing courts have shown considerable deference to Board decisions.

Reviewing courts havegenerally concluded the Board is a specialized tribunal with expertise in the administration of the Act and its compensation policy and,therefore, the reviewing courts have generally applied the standard of reasonableness or “patent unreasonableness” to decisions in whichthe Board has interpreted the Act or the compensation regime under the Act, see: Pasiechnyk v. Saskatchewan (Workers’ CompensationBoard), (SCC), [1997] 2 S.C.R. 890 (“Pasiechnyk”); Sebastian v. Saskatchewan (Workers’ Compensation Board) (1994), (SK CA), 119 D.L.R. (4th) 528 (Sask. C.A.); Bax v.

Saskatchewan (Workers’ Compensation Board), (SK CA), [1998] 7 W.W.R. 269 (Sask. C.A.); Goertzen v. Saskatchewan (Workers’ Compensation Board), 2002 SKCA125, 227 Sask. R. 146; Mantei v. Morris, (SK KB), [1997] 9 W.W.R. 203 (Sask. Q.B.); Mitchell’s Gourmet FoodsInc. v. Saskatchewan (Workers’ Compensation Board), 2006 SKQB 425, [2007] 2 W.W.R. 73; Campbell v.

Saskatchewan (Workers’Compensation Board), 2009 SKQB 275, [2009] 12 W.W.R. 733. [17] In Pasiechnyk, a pre-Dunsmuir decision, the Supreme Court of Canada held that the former standard of “patentunreasonableness” applied to Board decisions with respect to the statutory bar on civil actions. Sopinka J., for the majority of the Court,was clearly persuaded to this position by s. 22 of the Act which contains a “full” or “true” privative clause applying to “all issues that fallto be decided under the Act unless the issue is one that limits jurisdiction” (at para. 21).

He was also persuaded by the history andpurpose of workers’ compensation regimes (at paras. 24 to 27) and the expertise of the Board itself (at paras. 36 to 38), all of whichsupported his conclusion that the Board had exclusive jurisdiction to decide matters involving whether the statutory bar applied.

SopinkaJ. found that the issue before the Board was within the Board’s exclusive jurisdiction as it was intimately related to the purposes andstructure of the workers’ compensation system and, therefore, was to be accorded deference: 41 Essentially, then, the question before the Board on an application under s. 168 is whether the plaintiff is eligible forcompensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers’ compensation system.

Inboth cases, the Board is passing on a matter that relates intimately to the purposes and structure of the workers’ compensation system,and that is expressed in terms whose meaning is inseparable from their meaning elsewhere in the Act. 42 There can be no question that the question of eligibility for compensation is one that is within the Board’s exclusive jurisdiction.It is also clear upon examination that the issue of whether an action is barred is equally within the Board’s exclusive jurisdiction. Itwould undermine the purposes of the scheme for the courts to assume jurisdiction over that question.

It could lead to one of the problemsthat workers’ compensation was created to solve, namely, the problem of employers becoming insolvent as a result of high damageawards. The system of collective liability was created to prevent that, and thus to ensure security of compensation to the workers.Individual immunity is the necessary corollary to collective liability. The interposition of the courts could also lead to uncertainty aboutrecovery.

Anglin J. recognized this in Dominion Canners [ (SCC), [1923] S.C.R. 46], where he suggested that the purposeof the Act reserving to the Board exclusive jurisdiction over the question of whether an action was barred was to avoid a worker’s beingcompletely denied recovery should the Board determine that he or she was not entitled to compensation but the court determine that hewas. [18] In the context of determining the post-Dunsmuir standard of review applicable to a Board decision under s. 168 of the Act, SmithJ.A., speaking for this Court in University of Saskatchewan v.

Workers’ Compensation Board of Saskatchewan, 2009 SKCA 17, 305

D.L.R. (4 th ) 204 (“ University of Saskatchewan ”), reviewed Pasiechnyk and said: [39] It is clear, however, that the analysis of Sopinka J. in Pasiechnyk remains applicable to the question of whether deference is owed to the decision of the WCB pursuant to s. 168 of the Act that an action is or is not barred, for the reasons that he articulated.

I would conclude that the standard of review, following Dunsmuir , is now reasonableness, to be applied as articulated in that decision and, further, that the Board has exclusive jurisdiction in relation to the question posed on the application that was before it. [ 19 ] In my view, there is no need to undertake the second line of inquiry set out in Dunsmuir , which calls for the reviewing court to determine the applicable standard of review afresh. Put simply, the jurisprudence is clear.

The standard of reasonableness will generally apply, and the Board will be entitled to deference, if the category of question before the Board relates to the

interpretation and application of the Act, is within the Board’s expertise and does not raise issues of general legal importance. The standard of review is correctness where the issue before the Board is limited to a true jurisdictional question or a question of law of general application which is both of central importance to the legal system as a whole and is outside the Board’s specialized area of expertise.

On this basis, I turn to review the question which was before the Board in this matter. [ 20 ] The question before the Board was narrow and related to the Even-Footing Policy or, more technically, the method, set out in WCB policies, under which the maximum wage rate is applied in the annual adjustment of Mr. Mellor’s compensation and, in general, with respect to the annual adjustment of compensation paid to all Gross Earnings Workers. This is a question of law. But, it is not the sort of question of law which may be properly characterised as a “true” jurisdictional question.

It is a question located within the core function and expertise of the Board relating to the

interpretation and the application of its enabling statute and closely-connected legal rules. The inquiry as to what method of calculation applied in the circumstances, or, more particularly, which variable base in that calculation is inextricably intertwined with the WCB’s mandate and expertise to administer and maintain the workers’ compensation regime established under the Act . The question is heavily dependant on knowledge and an understanding of the history and purpose of the legislative scheme and the principles which underlie that scheme.

The Board makes such decisions on a routine basis and it is best- positioned to do so. Finally, a decision as to how the WCB will calculate a particular worker’s or group of workers’ compensation can hardly be said to be a question of central importance to our legal system or outside the specialized expertise of the Board as it could not subvert the legal system, even if found in error. [ 21 ] I conclude, therefore, the question before the Board related to the

interpretation and application of the Act and closely-connected legal rules, is squarely within the Board’s expertise, and does not raise issues of general legal importance. The appropriate standard of review is, therefore, reasonableness. Accordingly, I find the chamber judge erred by subjecting the Board Decision to a correctness review. 2.

On the standard of reasonableness, did the chamber judge err in quashing the Board Decision? [ 22 ] Since the chamber judge erred in his determination of the appropriate standard of review, the second issue before the Court in this appeal calls for a review afresh of the Board Decision to determine whether it is reasonable and, therefore, entitled to deference. I turn now to that decision. [ 23 ] The issue before the Board was whether WCB administration had properly calculated the annual adjustment of Mr. Mellor’s compensation by applying the Even-Footing Policy after December 31, 2006.

As noted, the effect of the Even-Footing Policy was to limit the maximum wage rate used in the annual adjustment of Mr. Mellor’s compensation to that fixed under s. 38.1 of the Act ; whereas previously his maximum wage rate had increased annually under the Cap Adjustment Policy adopted by the WCB. This change put Mr. Mellor and the other Gross Earnings Workers on par with Net Earnings Workers in that Mr. Mellor and the other Gross Earnings Workers thereafter received earnings replacement benefits capped by the same maximum wage rate as was applicable to Net Earnings Workers. Of course, from Mr.

Mellor’s perspective, this meant he would no longer receive the benefit of increases in the maximum wage rate, as he had in the past, unless the Legislature amended s. 38.1 to increase it. [ 24 ] After considering the matter and Mr. Mellor’s appeal, the Board determined the Even-Footing Policy legitimately implemented a government intention to treat all injured workers equally under the workers’ compensation legislative scheme and the Board therefore dismissed Mr. Mellor’s appeal: It is the Board Members’ view the provisions of

Section 38 of the Act represented the Government’s intention to provide a lesser maximum to those claims that existed prior to September 1, 1985 with provision to allow for gradual increase of that maximum. Once the maximum under

Section 38 reaches that provided under

Section 38.1, the Board Members only logical conclusion is from that point, all injured workers should be treated equally and have the maximum of

Section 38.1 applied to all. [ 25 ] With that context, I turn to determine whether the Board Decision is reasonable.

[26] A post-Dunsmuir judicial review of a tribunal decision on the standard of reasonableness involves the organic exercise of readingthe reasons together with the outcome to determine whether the result falls within a range of possible outcomes (see: Newfoundland andLabrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, at para. 14).

Dunsmuir describes this processas follows: [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standardsof reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particularresult. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within therange of acceptable and rational solutions.

A court conducting a review for reasonableness inquires into the qualities that make adecision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness isconcerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is alsoconcerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts andlaw. [emphasis added] If the tribunal’s reasons allow the reviewing court to understand why the tribunal made its decision and permit the reviewing court todetermine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met (Newfoundland andLabrador Nurses’ Union v.

Newfoundland and Labrador (Treasury Board), at para. 16). [27] In the context of this appeal, the issue is therefore whether the Board’s reasons for dismissing Mr. Mellor’s appeal, when taken asa whole, are transparent, intelligible and internally-justified such that the reasons demonstrate that the Board’s decision not to disturb theEven-Footing Policy is within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. [28] In respect of the transparency of the decision-making process, the Board held an appeal hearing to consider Mr.

Mellor’s appeal.The Board received written submissions from Mr. Mellor as to his position. However, the Board did not hear from him in person. TheBoard noted in its written reasons: Mr. Mellor had requested an opportunity to present his appeal in person before the Board Members. The Board Members are generallyreceptive to such requests when the hearing is expected to deal with the factual matters on the case and they involve evidence and/ortestimony related to the facts of the case. Mr. Mellor’s appeal, however, relates strictly to the

interpretation of the legislation. Hisposition in this respect is clear and easily understandable. The Board Members do not see that anything would be gained by arranging anin person hearing in this respect. This is not to suggest Mr. Mellor ought to have sought to impugn the hearing process before the chamber judge or in this Court. Rather, Inote these facts merely because they go to the transparency of the hearing process. In that respect, I conclude that the process wastransparent based on the content of the Board Decision which demonstrates the Board had a full understanding of the issues before it andof Mr.

Mellor’s submissions. [29] As to intelligibility, the Board carefully set out its analysis in a seven-page, written decision which is concise, clear and cogent.The Board’s reasons are thorough and set forth a rational justification for its decision to dismiss Mr. Mellor’s appeal. They draw uponthe history of and the principles underlying workers’ compensation regimes in general and the Saskatchewan legislative scheme inparticular.

They evince the Board’s comprehensive, expert understanding of current and historical workers’ compensation legislation andpolicy in Saskatchewan and of the interplay between the specific provisions of the Act which are at issue in Mr. Mellor’s appeal. [30] As to the other aspects of the reasonableness assessment, the reviewing court must gauge the tribunal decision against the rangeof possible, acceptable outcomes which are defensible in respect of the facts and law. If the tribunal decision falls within that range, thedecision is reasonable and the tribunal is entitled to deference.

Here, it is important to keep in mind, as CHRC cautions, that the conceptof deference in judicial review is distinct from the concept of deference in appellate review: [30] The concept of deference is also what distinguishes judicial review from appellate review. Although both judicial and appellatereview take into account the principle of deference, care should be taken not to conflate the two.

In the context of judicial review,deference can shield administrative decision makers from excessive judicial intervention even on certain questions of law as long as thesequestions are located within the decision makers’ core function and expertise. In those cases, deference would therefore extend to protecta range of reasonable outcomes when the decision maker is interpreting its home statute (see R. E. Hawkins, “Whither Judicial Review?”(2010), 88 Can. Bar Rev. 603). [31] By contrast, under the principles of appellate review set down in Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, anappellate court owes no deference to a decision maker below on questions of law which are automatically reviewable on the standard ofcorrectness. In Khosa, a majority of the Court confirmed that these principles of appellate review should not be imported into the judicialreview context. [31] As the question before the Board called for an

interpretation of the Act and closely-connected legal rules, the modern principle of statutory

interpretation, as espoused by Elmer Driedger in Construction of Statutes (2nd ed.) (Toronto: Butterworths, 1983) at p. 87, andadopted by the Supreme Court of Canada in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 (“Rizzo”),applies:

Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [32] The modern principle instructs those who would interpret legislation to look at three elements: (

i) the plain meaning of the text;(ii) the scheme or object of the statute or its purpose; and (iii) the intention of the Legislature. It requires the harmonization of these threeelements to arrive at one interpretive outcome, which involves a standard of correctness. However, the standard upon which the BoardDecision must be measured is that of reasonableness which necessarily admits the possibility of more than one interpretive outcome. Assuch, in the context of judicial review, the modern approach to statutory

interpretation is only applied as an aid in determining whetherthe Board Decision falls within the range of possible, acceptable outcomes (i.e., whether it is a reasonable decision), but not whether, inthe court’s view, that outcome is the correct

interpretation. [33] In Canada (Director of Investigation & Research) v. Southam Inc., (SCC), [1997] 1 S.C.R. 748, at para. 56, theSupreme Court of Canada described an unreasonable decision as “one that, in the main, is not supported by any reasons that can stand upto a somewhat probing examination.” The Court suggested that the reviewing court must look to see whether any reasons support thedecision. Building on this description from Southam, in Law Society of New Brunswick v.

Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247,Iacobucci J., speaking for the Court, asked and answered the question before every court sitting in a judicial review of a tribunal decisionon a standard of reasonableness: [54] How will a reviewing court know whether a decision is reasonable given that it may not first inquire into its correctness?

Theanswer is that a reviewing court must look to the reasons given by the tribunal. [55] A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead thetribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support theconclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonableand a reviewing court must not interfere (see Southam, at para. 56).

This means that a decision may satisfy the reasonableness standard ifit is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, atpara. 79). [56] This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question israther whether the reasons, taken as a whole, are tenable as support for the decision.

At all times, a court applying a standard ofreasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel onespecific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect thedecision as a whole. [emphasis added] See also Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609, at para. 31;and Alberta Union of Provincial Employees v.

Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727 at para. 48. [34] With this framework in mind, I turn to determine whether the Board’s reasons, taken as a whole, are tenable as support for itsdecision in this matter. [35] In this case, the question before the Board called for an

interpretation of the Act, the Cap Adjustment Policy and the Even-Footing Policy and, in particular, it called for a determination of what the Legislature intended by the interplay among ss. 2(n), 38, 38.1,68, 69 and 70. Those legislative provisions read as follows:

Interpretation 2 In this Act: … (n) “maximum wage rate” means the amount ordered by the board pursuant to

section 38 or the amount specified in

section 38.1,as the case may be; … Maximum wage rate 38 Commencing with the year 1975 and annually thereafter, the board shall, as soon as practical after September 30, review thewages and salaries earned by workers who suffered injury and to whom compensation was paid during the period of one yearimmediately preceding September 30 of the year of the review and, whenever that review reveals that ten per cent or more of thoseworkers are earning in excess of the maximum wage rate at the time of the review, the board shall, by order, increase the maximumwage rate for injuries occurring on and after the first day of the succeeding year by the appropriate number of increments of $1,000 as isnecessary to reduce the number of workers whose salaries exceed the maximum wage rate to less than ten per cent of the workers whosuffered injury and to whom compensation was paid during the period of review.

Maximum wage rate re certain workers 38.1 Notwithstanding

section 38, for the purpose of making a decision or determination with respect to a worker who sustains an injury on or after September 1, 1985: (

a) the maximum wage rate applicable before January 1, 2003 is $48,000 per year; (

b) the maximum wage rate applicable on and after January 1, 2003 but before January 1, 2004 is $51,900 per year; (

c) the maximum wage rate applicable on and after January 1, 2004 but before January 1, 2005 is $53,000 per year; and (

d) the maximum wage rate applicable on and after January 1, 2005 is $55,000 per year. … Amount of compensation 68

(1) Where injury to a worker results in a loss of earnings beyond the day of the injury, the board shall determine the loss of earnings resulting from the injury and shall ensure compensation to the worker: (

a) in the case of a worker who sustains an injury prior to September 1, 1985, in an amount equal to 75% of that loss ; (

b) in the case of a worker who sustains an injury on or after September 1, 1985, in an amount equal to 90% of that loss .

(2) Compensation pursuant to subsection (1) is payable as long as the loss of earnings continues or until the worker attains the age of 65, whichever occurs first.

(3) For the purposes of this Act , “earnings” means: (

a) in the case of a worker who sustains an injury prior to September 1, 1985, his gross earnings from employment; (

b) in the case of a worker who sustains an injury on or after September 1, 1985, his gross earnings from employment minus the probable deductions for: (

i) the probable income tax payable by the worker calculated by using only the worker’s earnings from employment as his or her income, and using only the worker’s basic personal exemption, exemption for dependants and employment-related tax credits, as at the date of the worker’s injury and each anniversary date, as the worker’s deductions; (ii) the probable Canada Pension Plan premiums payable by the worker; and (iii) the probable unemployment insurance premiums payable by the worker.

(4) The board shall annually establish a

schedule setting out a table of earnings for the purposes of clause (3)(b). Calculation of loss of earnings 69

(1) Calculation of the loss of earnings for the purposes of subsection 68(1) and sections 71 and 72 shall be based on the difference between: (

a) the worker’s average weekly earnings at the commencement of his loss of earnings resulting from the injury, increased annually by the percentage increase in the Consumer Price Index ; and (

b) the earnings that the worker is receiving from employment.

(2) For the purposes of subsection (1), the percentage increase in the Consumer Price Index shall be the percentage increase for the 12 months ending on November 30 in each year, and that percentage increase shall be applied to the average weekly earnings of the worker on the anniversary date of the commencement of his loss of earnings resulting from the injury in the year following the year in which the calculation is made.

Interpretation 70

(1) Subject to subsections (3) to (5), “average weekly earnings” means the greater of: (

a) one fifty-second of the worker’s gross earnings for a period of 12 months immediately preceding the commencement of the loss of earnings as a result of the injury; and (

b) the rate of daily, weekly, monthly or other regular gross earnings that the worker was receiving at the commencement of the loss of earnings as a result of the injury.

(2) For the purposes of this section, “average weekly earnings” shall be deemed not to exceed one fifty-second of the maximum wage rate in effect at the commencement of the loss of earnings resulting from the injury , or at the commencement of the recurrence of such loss for the purposes of

section 72.

(3) Where the employer was accustomed to paying to the worker a sum of money to cover any special expenses imposed on him by the nature of his employment, that sum shall not be included as part of his earnings.

(4) In determining the average weekly earnings of a worker, the board shall take into consideration the average earnings, as determined by the board, that were earned by a person regularly employed in the same grade of employment if: (

a) the worker was not available for employment for the full period of 12 months immediately preceding the commencement of his or her loss of earnings resulting from the injury; or (

b) in the opinion of the board, it is inequitable, by the casual nature or the terms of the worker’s employment, to compute the worker’s average weekly earnings in accordance with subsection (1).

(5) Where a worker is injured on or after January 1, 1980 and is in receipt of compensation for a period of at least 24 consecutive months, his average weekly earnings: (

a) during the period commencing on January 1, 1980 and ending on December 31, 1982, are deemed to be not less than $178.48 per week; (

b) on and from January 1, 1983, are deemed to be not less than two-thirds of the average weekly wage as of June in the year immediately preceding the year in which the review respecting his compensation occurs. [emphasis added] [ 36 ] The Even-Footing Policy, as set out in POL 09/2009 (which has since been superseded by POL 40/2010 and POL 15/2011), provided as follows: BACKGROUND

Section 38 of The Workers’ Compensation Act, 1979 (the “Act”) states that beginning in 1975 and annually thereafter the Board will review the wages and salaries earned by workers who suffered injury and to whom compensation was paid during the period of one year immediately preceding September 30 of the year of the review. 2. Where the review reveals that 10 percent or more of the workers are earning more than the maximum wage rate at the time, the Board shall increase the maximum wage rate for injuries occurring on and after January 1 of the succeeding year by increments of $1,000.

Increments will be added until the number of workers whose salaries exceed the maximum wage rate is reduced to less than 10 percent of the workers who suffered injury and to whom compensation was paid during the period of review. 3. According to Section 68(1), compensation is based on 75 percent of average weekly earnings for injuries occurring before September 1, 1985; and 90 percent of net for injuries on or after September 1, 1985. POLICY Pursuant to

Section 38, the Board directs that the maximum wage rate for any worker sustaining injury before September 1, 1985 be increased to $65,000 per annum effective January 1, 2010. However, this maximum is subject to

Section 38.1 that limits the maximum wage rate to $55,000 . [emphasis added] [ 37 ] Although the reasons given by the Board in its

interpretation of the foregoing provisions and policy are somewhat lengthy, the nature of the analysis required of this Court when sitting in judicial review of those reasons warrants setting them out in full: The relevant Policy 16/2008, expresses the Board Members’ view the maximum arrived at under

Section 38 is subject to the maximum provided in

Section 38.1. This means that for the years 2007, 2008 and 2009, the maximum which would have been provided under

Section 38 of $57,000.00, $59,000.00 and $63,000.00 respectively, would be limited to the maximum under

Section 38.1 of $55,000.00. Mr. Mellor argues his entitlement should be subject to the maximum under

Section 38 and that

Section 38 is not subject to the maximum provided in

Section 38.1. In order to put this question in perspective, the Board Members again turned to a historical review of the legislation. Prior to 1975, the maximum in the legislation was set in accordance with periodic, ad hoc changes to the Act . There was, in fact, a period of almost 12 years where the maximum was only increased by the amount of $600.00 per year. From 1975 and onwards, the provisions of

Section 38 of the Act applied. This provided for a gradual and more or less regular increase to the maximum rate in accordance with the number of injured workers in a given year that were earning in excess of the maximum. In accordance with that provision the maximum was increased on January 1, 1976 to $14,000.00 per year and by January 1, 1985 had reached $33,000.00 per year. Prior to 1975 when the maximum wage rate would change as a result of amendments to the legislation, the new maximum wage rate would apply to new claims after the effective date of the new maximum wage but those injured before that date would remain on the maximum in effect at the time of their injury. Similarly, when

Section 38 was added to the Act , while it provided a new method of calculating the maximum wage rate, the maximum in effect at the time of the injury remained in effect even when new maximum rates were subsequently established. Accordingly, a worker injured in 1975 would be subject to the maximum in effect at that time which was $10,000.00 per year. Effective January 1, 1976 the maximum increased to $14,000.00 per year but it would not apply to this worker and the maximum applicable on his case would remain at $10,000.00. In Mr.

Mellor’s case, he was earning $12.00 per hour, on a 42 hour work week when he was injured. This represented a wage in excess of the maximum in effect at the time of his injury in 1981 which was $24,000.00. Literal

interpretation of

Section 38 of the Act would result in Mr. Mellor’s entitlement being subject to that maximum ever since 1981. When indexing came into effect in 1980, there was no change to the provisions of

Section 38 of the Act. Review of the current legislation provides no clear answer as to how to meld the indexing provisions with the maximum provided under

Section 38 of the legislation. The Workers’ Compensation Board has been of the

view that it was a fair and reasonable approach to adjust a worker’s entitlement in accordance with CPI increases but make the entitlement subject to the maximum in effect in any given year provided under

Section 38 . This represented a manner in which a worker in the past would have the same maximum rate applicable to his continuing entitlement as a worker employed in the same position would have if he was injured after a new maximum rate came into effect. Effective September 1, 1985, the Workers’ Compensation Act was changed to incorporate a new maximum that applied to injuries occurring on and after September 1, 1985 of $48,000.00 per year.

While this new maximum applied to all new claims, there was no change to the manner in which the maximum was calculated for claims for injuries occurring before September 1, 1985. The maximum that applied on those claims continued to increase, gradually, as before. When considering why the decision was made not to increase the maximum to $48,000.00 on all claims, one needs only to turn to one of the basic tenets of Workers’ Compensation in Saskatchewan and Canada. Workers’ Compensation in Canada is based primarily on what are referred to as the Meredith Principles.

In addition to the five essential principles illuminated by Justice Meredith in his report to the Ontario Government, he also commented on the manner in which Workers’ Compensation systems should be funded. He argued a primary consideration should be employers of the future should not be burdened with the costs of today’s claims. That approach has been adopted by the Saskatchewan WCB since its inception. Our current legislation requires the Board to be “fully funded” which means it has enough money set aside to pay all the costs on the claims existing today, into the foreseeable future.

Had the Government decided to apply the $48,000.00 maximum to all claims existing prior to September 1, 1985, this would have represented a significant financial burden to today’s employers on claims that existed previously. The decision to apply the new maximum only to new claims is in accordance with Justice Meredith’s recommendations. In 2003, the provisions of

Section 38.1 of the Act were changed to increase the maximum annually for the next three years until he reached an amount of $55,000.00 as of January 1, 2005, where it has remained. Since 1985 the maximum provided under

Section 38 of the Act has gradually increased until, on January 1, 2007, it exceeded the maximum provided under

Section 38.1 of the Act. At this point it was necessary for the Workers’ Compensation Board to determine the implications of the maximum under

Section 38 exceeding that under [Section] 38.1. In doing so, the WCB considered the historical perspective and the requirement to read the provisions of the Act harmoniously with the scheme of the Act, the object of the Act and the modem intention of the legislature. It was concluded, allowing the maximum under

Section 38 to exceed that under

Section 38.1 would result in an absurdity not contemplated or intended by the general provisions of the Act. The problems that arise should the WCB have allowed the maximum under

Section 38 to exceed that of

Section 38.1 would have meant the employer’s [ sic ] of today would have been required to fund the additional costs related to this, contrary to the Meredith recommendations. More significantly, should a worker be injured in 2009, doing the same job Mr. Mellor was doing at the time of his injury and earning in excess of $63,000.00 per year (the maximum calculated in accordance with the provisions of

Section 38 ), this worker would be subject to the current maximum under

Section 38.1 of $55,000.00 per year. The suggestion a worker injured today should be subject to a maximum substantively less than what would be applied to a worker injured decades earlier is, in the view of the Board Members, illogical and contrary to the general intent and purpose of the Workers’ Compensation Act . It is the Board Members’ view the provisions of

Section 38 of the Act represented the Government’s intention to provide a lesser maximum to those claims that existed prior to September 1, 1985 with provision to allow for gradual increase of that maximum. Once the maximum under

Section 38 reaches that provided under

Section 38.1, the Board Members’ only logical conclusion is from that point, all injured workers should be treated equally and have the maximum of

Section 38.1 applied to all. Having considered the submission of Mr.

Mellor, the Board Members remain of that view and the appeal in this respect is denied. [ 38 ] As is evident, the Board drew upon the historical context of workers’ compensation regimes, the legislative scheme in Saskatchewan and its past-interpretation of the Act and WCB policy to conclude, as the “only logical conclusion”, that the Legislature intended all injured workers to be treated equally under the compensation scheme which, in turn, that meant once the maximum wage rate for Gross Earnings Workers matched that of Net Earnings Workers, the maximum wage rate fixed under s. 38.1 would apply to all workers, regardless of their respective dates of injury.

T aken as a whole, the reasons given by the Board for its decision are prima facie tenable support for its decision in this matter, but the analysis does not end there. [ 39 ] If we look to the grammatical and ordinary sense of these provisions, one quickly notes that ss. 38 , 69 and 70 of the Act do not provide for increases in the maximum wage rate applicable to Gross Earnings Workers. This is likely because s. 38 was not amended in 1980, as were other sections of the Act, to reflect the introduction of CPI-indexing.

Section 70(2) provides that the average weekly earnings of an injured worker are not to exceed 1/52 nd of the maximum wage rate in effect at the worker’s date of injury . Section 69(1) (

a) states that the worker’s average weekly earnings at the date of injury are to be indexed to the CPI; however, s. 70(2) appears to override s. 69(1)(

a) as it effectively caps the amount of an injured worker’s “average weekly earnings.” Therefore, in their grammatical and ordinary sense, ss. 69(1)(

a) and 70(2) provide that, while a Gross Earnings Worker might be entitled to CPI increases, that worker’s earnings replacement entitlement could never exceed the maximum wage rate in effect at the time of the worker’s injury. In the result, on the grammatical and ordinary sense of those provisions, Mr. Mellor’s weekly entitlement should have been capped at 75% of $461.54 for the last 25 years or so, $461.54 being the weekly maximum wage rate in effect in 1981 when he was injured.

This, of course, would be an absurd consequence inconsistent with the scheme of the Act, the object of the Act, the underlying principles of worker’s compensation regimes and the intention of the Legislature. [ 40 ] Faced with the lacuna which left it with legislation which does not indicate how or whether to integrate the CPI-indexing provisions of the Act with the maximum wage rate provisions under s. 38 , and an absurd consequence if it did not so index worker entitlements, the WCB adopted a practice under which it annually adjusted Gross Earnings Workers’ earnings replacement entitlements in accordance with CPI increases but by policy made those adjusted entitlements subject to the then current maximum wage rate under s. 38 .

In effect, the WCB’s Cap Adjustment Policy introduced a large measure of fairness to the workers’ compensation regime which

ensured the continuing earnings replacement entitlement of an injured Gross Earnings Worker would be the same as the continuing earnings replacement entitlements of Gross Earnings Workers employed in the same position but injured in later years ( i.e. , a worker who had the benefit under statute of an increased maximum wage rate under s. 38 ). This is because the same increased maximum wage rate would be applicable to the calculation of all such workers’ earnings replacement benefits.

On this footing, the Cap Adjustment Policy is consistent with the scheme of the Act, the object of the Act, the underlying principles of worker’s compensation regimes and what the WCB interpreted as the intention of the Legislature. It also considerably benefited those Gross Earnings Workers, like Mr. Mellor, who were injured in years prior to or during its implementation.

It was also within the WCB’s mandate and power to adopt a policy in the nature of the Cap Adjustment Policy to increase the compensation payable to workers in the manner that it did, even though the increases were not expressly authorized by the Act.

To do so, the WCB exercised its authority under the Act to draw on the injury fund for any purpose it considers necessary to carry out the intent of the Act (see: s. 117 (j)). [ 41 ] Moving forward to 2007, the WCB found itself in a circumstance where the measure of fairness it introduced on a policy-basis after 1980 to adjust the maximum wage rate had leveled the playing-field for Gross Earnings Workers and Net Earnings Workers with respect to that rate.

This too was consistent with the scheme of the Act , the object of the Act, the principles underlying the compensation regime and what the WCB interpreted as the intention of the Legislature.

Here, it is of considerable note that, as stated in the Board Decision, without the implementation of the Even-Footing Policy, after 2007 the continued application of the Cap Adjustment Policy to maximum wage rate under s. 38 and fixed maximum wage rate under s. 38.1 to the two separate groups of workers would have resulted in a circumstance where current-day employers would be required to fund ever-increasing benefits to Gross Earnings Workers while current-day workers remained at a maximum benefit amount fixed by legislation.

This would have been contrary to the Meredith recommendations and, furthermore, as noted in the Board Decision, would have been “an absurdity not contemplated or intended by the general provisions of the Act.” [ 42 ] On a strict grammatical and ordinary sense

interpretation of the Act , the WCB should have capped each Gross Earnings Worker’s earnings replacement benefits on the basis of the maximum wage rate in effect at the date of the worker’s injury, without adjustment. This is an

interpretation of the Act aptly labeled by the WCB as absurd, illogical and contrary to the general intent and purpose of the Act. The consequences of such an

interpretation could not have been intended by the Legislature because they are incompatible with the object of the Act, would frustrate the purpose of the Act and would undercut the realization of a fair, legislated workers’ compensation scheme in Saskatchewan (see: Alberta Union of Public Employees v. Lethbridge Community College , supra , at para. 46 ). [ 43 ] The

interpretation of the law is always contextual and, as is evident, a solid understanding of the historical context of the workers’ compensation regime, its underlying principles, the legislative scheme, and WCB policy is critical when it comes to contemporary

interpretation of the Act . Given this context, it was reasonable for the Board to conclude that the maximum wage rate calculated under s. 38 should be subject to the maximum wage rate fixed by s. 38.1 once they reached parity. This is, at its least, a tenable

interpretation of the Act and is likely correct. Let me explain. [ 44 ] The Board Decision recognizes that the WCB has historically chosen to interpret the Act and to fill the gaps in that legislation in a manner which conforms to the principles that underpin the workers’ compensation regime.

The WCB’s rationale for the Even-Footing Policy is clearly articulated in the Board Decision by reference to recommendation of Sir William Meredith that a workers’ compensation regime should operate “ so as not unduly or unfairly to burden the employers in any class in future years with payments which are to be made in those years in respect of accidents which have previously happened”; a principle which Sir William Meredith deemed “essential to the safety and adequacy of the scheme of compensation”. See: Ontario, The Meredith Report (Osgoode Hall, Toronto, 31 October 1913).

This principle has been incorporated into s. 118(1) of the Act which reads: 118

(1) The board shall at all times maintain the fund so that, with the reserves provided for in subsection 135(2) but exclusive of the special reserve mentioned in

section 144, it shall be sufficient to meet all the payments to be made out of the fund with respect to: (

a) the cost of the administration of the industrial safety program; and (

b) compensation as it becomes payable; and so that the employers in any class are not unduly or unfairly burdened in future years with payments to be made in those years in respect of costs and injuries that have previously occurred. [ 45 ] In the Board Decision, the Board acknowledged that the implementation of the Even-Footing Policy in 2007 avoided the imposition of “a significant financial burden” on current and post-2007 employers to cover the cost of pre-September 1985 claims.

In this context, the Even-Footing Policy is a principled and rational approach which follows on fairness of the Cap Adjustment Policy, adheres to the Meredith principles, and allows for the average weekly earnings of all injured workers to increase through CPI-indexing within the confines of a single maximum wage rate fixed by the Legislature.

The Board Decision, which upholds the Even-Footing Policy, is therefore in this respect also consistent with the scheme of the Act , the object of the Act, the Meredith principles and what the WCB interpreted as the intention of the Legislature. [ 46 ] The Board Decision also recognizes that the Even-Footing Policy could only have been implemented when the maximum wage

rate under s. 38 became level with that under s. 38.1. If it had been implemented in 1985, the policy would have had the consequence of abruptly and significantly increasing the compensation payable to Gross Earnings Workers from the $33,000 maximum wage rate, as then calculated under s. 38 , to the $48,000 maximum wage rate then fixed under s. 38.1.

This too would have violated the Meredith recommendations in the sense that it would have burdened post-August 1985 employers with the cost of then existing claims. [ 47 ] However, by implementing its Cap Adjustment Policy in 1985 and reconciling ss. 38 and 38.1 under the Even-Footing Policy in 2007, the WCB remained consistent with the Meredith recommendations by providing for gradual increases to Gross Earnings Worker compensation between 1985 and 2006, and it remained consistent with its

interpretation of the Legislature’s intentions for the workers’ compensation regime in Saskatchewan. Significantly, in 25 years, the Legislature has not indicated this was an incorrect

interpretation of its intention. [ 48 ] Mr. Mellor submitted that the WCB acted unfairly by gradually increasing the Gross Earnings Workers’ maximum wage rate over the course of 22 years only to cap it when it matched that of Net Earnings Workers. As a fairness argument, this ignores the simple fact that Gross Earnings Workers have and will still continue to enjoy a greater maximum benefit than Net Earnings Workers by reason of the different methods of calculating the compensation payable to each group of workers. For example, under ss. 68(1)(

b) and 68(3)(b), a Net Earnings Worker who earned $65,000 in 2009 but who became completely disabled in that year would be entitled to receive maximum annual compensation of approximately $34,650 ( i.e. , the product of the difference between $55,000 (the maximum wage rate for 2009 as fixed by s. 38.1) minus 30% (the estimate for income taxes and premiums) multiplied by 90%). Conversely, under ss. 68(1) (

a) and 68(3)(a), a Gross Earnings Worker who had earned in excess of the maximum wage rate in 1981 and who was injured in that same year would be entitled to receive maximum annual compensation in 2009 of $41,250 ( i.e. , the product of $55,000 (the maximum wage rate for 2009 as fixed by s. 38.1) multiplied by 75%). Whereas, had the WCB continued to use the maximum wage rate under s. 38 as adjusted under the Cap Adjustment Policy, the Gross Earnings Worker would have been entitled to maximum annual compensation in 2009 of $48,750 ( i.e. , the product of $65,000 (the 2009 maximum wage rate under s. 38) x 75%).

Even though not equal, the two groups of workers are, nevertheless, treated more equitably under the Even-Footing Policy. [ 49 ] For the foregoing reasons, in my opinion, the Even-Footing Policy is a valid exercise of the WCB’s authority because it reflects the Meredith principles and is a reasonable

interpretation of the intentions of the Legislature with respect to a legislated scheme of workers’ compensation in Saskatchewan. The policy fills identified legislative gaps which would have otherwise given rise to inequity and have offended the Meredith recommendations. Admittedly, the linkage between the WCB’s Cap Adjusting Policy and its Even- Footing Policy which served to reconcile ss. 38 and 38.1 is 22-years long. However, the Meredith recommendations and sound management of the workers’ compensation scheme require long-term thinking and planning.

The success of a future-oriented approach is borne out by the over 80-year history of workers’ compensation legislation and policy in Saskatchewan. In fact, this is the very reason why reasonableness is the standard of review in matters of this nature.

The Board has the best historical knowledge of the workers’ compensation regime in Saskatchewan, including extensive knowledge of the Act and its amendments along with the reasons for amendment, an expert understanding of the object of the Act and the principles underlying its compensation scheme, a comprehensive appreciation of the past and current policies intended to implement the compensation scheme, and, most importantly, an overarching sense of the interplay between all of these things which is necessary to maintain the fair and financially-sound workers’ compensation regime through which workers in Saskatchewan benefit today. [ 50 ] On the whole, having regard to the language of the statutory provisions and WCB policies at issue, their purpose and place within the Act and the workers’ compensation regime in general and to the underlying principles, history and objective of workers’ compensation legislation in Saskatchewan, I find the Board Decision was squarely within the range of possible and acceptable outcomes in this matter.

In sum, the outcome is not only supported by a tenable explanation, it is convincingly defensible on the facts and law. And, in such circumstances, a reviewing court must not intervene. [ 51 ] The appeal is allowed, the judgment of the chamber judge is set aside and the Board Decision restored. Although the WCB has met with success in this Court, Mr. Mellor’s appeal raised untested issues which affected all injured workers under the legislative compensation scheme; and, for that reason, I would make no order as to costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 9 th day of February, A.D. 2012. __ “Caldwell J.A.” __________________ Caldwell J.A.

I concur. “Caldwell J.A. for” Vancise J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A.