SCC/jmj 2003 SKQB 257 Q.B.G. A.D. 2003 No. 733 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH BETWEEN: GLORIA TRUITT and GLORIA TRUITT as Litigation Guardian of TARYN TRUITT and SASKATCHEWAN WORKERS’ COMPENSATION BOARD RESPONDENT Gregory A. Thompson for the applicant Wayne P. Dale for the respondent JUDGMENT ALLBRIGHT J. June 4, 2003 [1] The applicant, by way of notice of motion seeks the following relief: a. An Order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, to quash the decision of the Workers’ Compensation Board dated November 20, 2002; b. An Order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the Applicants’ claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law; c. Costs of this Application. [2] The notice of motion, in support of the application, sets forth the following grounds: i. That the Workers’ Compensation Board of Saskatchewan acted outside of the jurisdiction prescribed to it in The Workers’ Compensation Act, 1979, R.S.S. W-17.1, when it denied the Applicants’ claim for compensation, based upon its finding that Mr. Truitt’s death was not compensable, because he was not found dead within the meaning of section 30 of The Workers’ Compensation Act, 1979. ii. That the Workers’ Compensation Board of Saskatchewan acted outside of its jurisdiction, as prescribed in The Workers’ Compensation Act, 1979, R.S.S., W-17.1, when it failed to apply statutory presumptions in favour of Gloria Truitt and Taryn Truitt; and iii. The Workers’ Compensation Board of Saskatchewan took into account irrelevant considerations in its decision of November 20, 2002. [3] In advance of the hearing, Mr. Dale, as counsel for the Saskatchewan Workers’ Compensation Board, filed with the court the “appropriate Return” pursuant to Rule 669(3). The Relevant Rules of Practice and Procedure [4] The relevant Rules of Practice and Procedure relating to judicial review are: 664(1) An application for judicial review by way of mandamus, prohibition, quo warranto, certiorari or to quash proceedings may be commenced by notice of motion. (2) In an application for judicial review, other than proceeding to which the Criminal Code applies, an applicant may claim: (a) declaration as collateral or alternate relief; or (b) an injunction or damages as collateral relief; and the court may grant such relief if it considers that having regard to all the circumstances of the case it would be just and convenient to do so. (3) Every application shall state the grounds on which it is made and the relief sought. 669(3) On receiving notice of motion so endorsed, the court, tribunal or other authority shall return forthwith to the court the conviction, order, decision, (or as the case may be) and reasons therefor together with the process commencing the proceeding, with certificate in the following form: “Pursuant to notice in these proceedings herewith return to this Honourable Court the following papers and documents, that is to say, (1) the conviction, order or decision (or, as the case may be) and the reasons therefor; (2) the process commencing the proceeding and the warrant issued thereon; and hereby certify to this Honourable Court that have above truly set forth all the papers and documents in my custody or power to be returned to this Honourable Court pursuant to the notice.” (Name, set out legibly, and signature.) 674 Where the court is satisfied that there are grounds for quashing or declaring void decision to which the application relates, the court, in addition to granting such relief, may remit the matter to the court, tribunal or other authority concerned with the direction to rehear it or to reconsider it and reach decision according to law. [5] In decision dated November 20, 2002, the respondent, Saskatchewan Workers’ Compensation Board, dismissed the applicant’s claim which had been brought forth both on her own behalf and on behalf of Taryn Truitt for compensation for the death of Scott Truitt on March 2, 1998. [6] The facts giving rise to the instant application are not particularly in dispute. [7] Scott Truitt was Gloria Truitt’s husband and Taryn Truitt’s father. He passed away while working at St. Thomas More College at the University of Saskatchewan on March 2, 1998. At the time of his death he was master’s student who also worked as student assistant in order to earn some income while completing his studies. He would have expected to have completed his master’s degree at the end of the spring session in 1998. [8] On March 2, 1998, in the morning, Scott Truitt, became ill during the course of teaching class at St. Thomas More College at the University of Saskatchewan. He displayed flu-like symptoms, including headache, nausea and vomiting. With the assistance of his students Mr. Truitt was escorted to the faculty lounge. While in the lounge student service advisor, Claude Lang, attended to Mr. Truitt. Mr. Lang left him in the lounge while he departed to conduct personal business and to make arrangements for Mr. Truitt to be picked up and taken home. Upon his return to the lounge, approximately 30 to 45 minutes later, Mr. Lang discovered that Mr. Truitt was no longer present and he went to find him. Mr. Lang went to the faculty washroom and found the door locked. He opened it with key and found Mr. Truitt lying on his back on the floor of the faculty washroom. Mr. Truitt was unconscious and “looking blue with no breathing”. This occurred at about 9:30 a.m. [9] Mr. Lang administered CPR on Mr. Truitt for approximately five minutes during which, female student stopped to assist him, however they were unable to revive Mr. Truitt. [10] Emergency Medical Technicians arrived on the scene shortly after the call from Mr. Lang. They continued to attend to Mr. Truitt for approximately one-half an hour, and then transported him to Royal University Hospital. The Emergency Medical Technicians were unsuccessful in resuscitating Mr. Truitt. At the Emergency Department at Royal University Hospital, the ambulance report indicates that there were “no life signs” at the scene “unchanged O/A at RUH”. [11] Further attempts occurred at Royal University Hospital to revive Mr. Truitt, however these attempts were unsuccessful and he was pronounced dead by Dr. Lipka at 11:36 a.m. [12] Following Mr. Truitt’s death, his employer, the University of Saskatchewan, did not notify the Workers’ Compensation Board regarding his death. Mrs. Truitt was not advised by anyone that she and her daughter might have any potential entitlement to receive benefits from the Board as result of the death of Mr. Truitt. Accordingly in the period of time immediately following Mr. Truitt’s death, she did not submit an application for benefits to the respondent Board. [13] Ultimately, an application for dependants’ benefits was submitted to the Saskatchewan Workers’ Compensation Board by a representative, Mr. Alex Taylor, on behalf of the applicant, on July 16, 2001. [14] Gloria Truitt had become aware of the potential rights in early July 2001 during casual conversation at her workplace. It was suggested to her that because Mr. Truitt’s death took place while he was performing work duties at the University of Saskatchewan, and not while he was on campus to attend class or to study that there might be an entitlement to benefits. It was shortly thereafter, that the claim was submitted. [15] In an internal memorandum prepared by Allan Basnicki of the Workers’ Compensation Board, dated September 14, 2001, it is first documented that Gloria and Taryn Truitt’s claim was going to be disallowed. In this memorandum, the following is noted: .AGREE THAT SCT 30 DOES NOT APPLY. THE PURPOSE OF THAT SCT IS THAT THE WORKER IS UNABLE TO ADVISE WHAT HAPPEN [sic] TO CAUSE THE DEATH AND THEIR [sic] ARE NO WITNESSES TO IT. The memorandum also notes that: .IT IS QUITE CLEAR WORKER OBSERVED BY OTHERS OF WHAT WAS THE EVENTUAL CAUSE OF DEATH. SO THIS WAS WITNESSED. [16] Through correspondence dated September 18, 2001 the applicant was advised for the first time that the Board was unable to accept responsibility for Mr. Truitt’s death because Mr. Truitt had not been “found dead at work”. The applicant thereupon notified the Board on October 14, 2001 that she wished to appeal the September 18, 2001 denial of her claim, and on October 29, 2001, the Board issued a formal written decision, denying Gloria Truitt’s appeal because “Mr. Truitt was not found dead at his place of employment on March 2, 1998.” No other ground was set forth as reason for denying the applicant’s claim. [17] At the applicant’s request, the Board held hearing to explore the claim further on March 21, 2002 in Regina, Saskatchewan. Alex Taylor attended at this meeting with the applicant, to act as her agent. [18] By correspondence dated May 8, 2002, Deb Roberts, assistant to the Board, advised the applicant that the Board members had reached an “impasse” with respect to the claim. Ms. Roberts advised that the applicant had two options: to have the Board conduct full review of the file, including review of the transcript from the March hearing, or to have full rehearing of the case, before full board panel, including two board members and the board chairman. [19] The applicant chose full board hearing and this occurred on July 31, 2002. [20] By letter of May 23, 2002 the Chairman of the Saskatchewan Workers’ Compensation Board wrote Mr. Taylor as the agent for the applicant in part as follows: As stated previously in the letter from Ms. Roberts dated May 8, 2002, the Board Members are at an impasse and are unable to resolve the appeal. Therefore, the full Board (Chair and Board Members) will hear the case, along with the Board’s legal counsel. Although you have argued this appeal under Section 30 of the legislation, the Board would like to discuss the application of Section 45 at the hearing. [21] Section 45 pertains to the statutory six month claims reporting. [22] On July 31, 2002, the applicant attended at the second hearing accompanied by Mr. Taylor and Mr. Thompson as counsel. In preparation for that hearing, the applicant’s counsel had obtained an opinion from Dr. J.R. Donat, MD, FRCPC, practising neurologist at the Department of Medicine at Royal University Hospital, University of Saskatchewan. After reviewing the autopsy report, the ambulance attendant’s report and the emergency room reports, Dr. Donat concluded that Mr. Truitt “suffered subarachnoid hemorrhage from Berry aneurysm” and that “it is unequivocal that he died at work”. [23] On November 20, 2002, the Board released its decision, again denying the applicant’s claim for benefits for the death of her husband on her own behalf and on behalf of her daughter as dependants of Scott Truitt. The decision was based upon two alternative grounds: the delay in bringing the claim, and the fact that Mr. Truitt was not “found dead at work”. [24] On January 1, 2003, The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1, was amended and s. 30, relevant section, was affected by the amendment. [25] The issues raised by this application are as follows: (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination that the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? Relevant Provisions of The Workers’ Compensation Act, 1979 [26] The applicable sections of The Workers’ Compensation Act, 1979, supra, are as follows: 19 Subject to subsection 21.1(4), the board shall sit at any time and conduct its proceedings in any manner that it considers advisable for the conduct of its business and affairs. 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; (c) the existence and degree of functional impairment to worker by reason of an injury; (d) the permanence of functional impairment resulting from an injury; (e) the degree of diminution of earning capacity caused by an injury; (f) the average earnings; (g) the existence of the relationship of any member of the family of worker and the degree of dependency; (h) whether any industry or any part, branch or department of any industry is within the scope of this Act and the class to which it is assigned; (i) whether any worker is within the scope of this Act. (2) The decision and finding of the board under this Act upon all questions of fact and law are final and conclusive and no proceedings by or before the board shall be restrained by injunction, prohibition or other proceeding or removable by certiorari or otherwise in any court. 28 Where, in an industry, worker suffers an injury, he is entitled to compensation which shall be paid by the board out of the fund. 30 Where worker is found dead at place where the worker had right to be in the course of his or her employment, it is presumed that the worker’s death was the result of injury arising out of and in the course of his or her employment, unless the contrary is shown. [*The above s. 30 is the current wording of that section. This wording came into being as result of an amendment to The Workers’ Compensation Act, 1979, on January 1, 2003. The section existing prior to this amendment provided: 30 Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment this particular provision was in place at the time of Mr. Truitt’s death.] 45(1) Subject to section 47, no compensation is payable to worker unless: (b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. 47 Failure to give notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Saskatchewan Worker’s Compensation Board’s Decision: Decision of November 20, 2002 [27] The respondent Board in its decision set forth detailed factual backdrop and catalogued the relevant provisions of The Workers’ Compensation Act, 1979. Thereafter the Board’s decision was follows: A. Application of Section 45 The application for dependent benefits was submitted to the Board over three years after the death had occurred and, on that basis alone, the claim for compensation could be denied. Section 45(1)(b) of the Act states: 45(1) Subject to section 47, no compensation is payable to the worker unless: b) the claim for compensation is made within six months from the date he sustained the injury or, in the case of death, within six months from the date of death. However, the inquiry does not end there, as the Board must consider the effect of Section 47, which reads: 47 Failure to give the notice mentioned in section 45 or any defect or inaccuracy in that notice does not bar the worker from compensation where the board considers that the claim for compensation is just and should be allowed. The Board sees that two interpretations could be given to the phrase “. .where the Board considers that the claim for compensation is fair and just. .” These two interpretations are: a) The justice of waiving the six-month limitation period involves an examination of the reasons for the delay. Are the reasons for the delay such that it would be just to allow the claim?; or b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? As for the first interpretation of Section 47, there is little evidence as to why Ms. Truitt did not apply for benefits within the six-month period contemplated in Section 45. Her counsel indicated that she was unaware, and uninformed of her rights under the Act. Ms. Truitt, when asked by the Board for an explanation for the delay, offered that her husband was mostly student, although he also had teaching duties, and she just never thought of applying for benefits. The Board considers it likely that no claim was submitted within six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment. While the Board is sympathetic to Ms. Truitt’s circumstances, the Board does not see that there are compelling reasons for the delay that would warrant waiving the six-month limitation period contained in Section 45. The second possible interpretation of Section 47 involves an analysis of whether the circumstances of the death or injury are such that claim for compensation is clearly valid and compelling. In Ms. Truitt’s case it is the Board’s opinion that the claim for compensation is not just in that sense, as the cause of her husband’s untimely death was not his employment. The autopsy report clearly indicated that Mr. Truitt died as result of ruptured Berry Aneurysm. There is no evidence to indicate that the aneurysm and its subsequent rupture were related, in any way, to Mr. Truitt’s employment. In fact, medical evidence suggests that such condition is likely genetic, and the reasons for rupture are largely unknown. It is also worth noting that medical research has not established connection between sedentary activities, of the kind engaged in by Mr. Truitt, and the onset of ruptured aneurysm. In effect it appears to be mere happenstance that Mr. Truitt died at work rather than, for example, at home. It is for the above reasons that the Board does not feel it would be just to waive the six-month reporting requirement in Section 45 of the Act. Counsel for Ms. Truitt argued that the Board could no longer consider the issue of Section 45, as it had already ruled on the merits of her claim. The Board respectfully disagrees with this submission, as the decision of October 29, 2001 dealt with the narrow issue of whether or not Mr. Truitt was “found dead” within the meaning of Section 30 of the Act. B. Application of Section 30 In the alternative, the Board considered the application of Section 30 of the Act. It is the Board’s view that the purpose of Section 30 is to address those circumstances in which it is impossible to determine whether the death was work-related or not. This view is in keeping with the overall purpose and scheme of the Act and workers’ compensation principles in general. This purpose is to provide benefits to workers and their dependents for injuries or death caused by their employment. This principle is clearly stated in the full title of the Act: An Act to provide for Compensation to Workers for Injuries sustained in the Course of their Employment. The Board also notes that when the Act was amended in 1979, the basis for many of the changes was the 1978 Committee of Review Report authored by Mr. Justice Alistair Muir. At page 51 of this report the committee commented on the presumptive clause as it relates to death that occurred in the workplace: The fourth issue was the issue of death occurring at the place of work. The present legislation is based on presumption that if worker’s death occurs at his workplace, it shall be presumed that the death occurred because of work. Some concern was registered over this section of the Act. It is the committee’s belief that this concern is based on misunderstanding of the term “presumption”. This term is based on the expectation that there will be complete and thorough investigation. As such, if there is no evidence to show the cause of death, then it is assumed that he died in the course of his employment. If the evidence shows that the death is not work-related, then the claim is not accepted. An example of the type of situation to which Section 30 was intended to apply would be where lone shift worker arrives for midnight shift, and is discovered dead by fellow workers arriving for the morning shift. There is no evidence to connect the death to their employment, nor any evidence to establish that the death was not work-related. In short, no one knows of the circumstances leading up to the death of the worker. The Board must approach the application of Section 30 by firstly determining if the worker was “found dead”. In the case of Mr. Truitt, the Board finds that he was not found dead. The symptoms leading up to Mr. Truitt’s death were first present at approximately 8:30 a.m. on the morning of his death. Several students assisted Mr. Truitt and observed the symptoms that were being displayed at that time, namely severe headache and nausea. Mr. Claude Lang, who attended to Mr. Truitt while he was in the Faculty Lounge, also observed these symptoms, which were later identified as being consistent with the rupture of Berry Aneurysm. While Mr. Truitt was left alone for 30 to 45 minutes, in order to make arrangements to have him return home, the symptoms of his death were already observable prior to this, and the Board finds that Mr. Truitt was not found dead, within the meaning of the Act. There is no uncertainty as to the cause of his unfortunate demise. Based upon the foregoing application of Sections 45 and 47, or in the alternative Section 30, the appeal is denied. The noted decision was signed by the Chairman of the Workers’ Compensation Board and member of the Board. There was board member’s dissent which provided as follows: In my considered opinion, Mr. Truitt was ‘found dead’ at work, where he had right to be. This is supported by the evidence that the Student Services Advisor and the ER Team administered CPR with no resulting response as to breathing or other vital life signs. Accordingly, it is my opinion that Section 30 of the “Act” should apply. The court’s interpretation of this Section includes ‘conclusive presumption’, thus the cause of death is not rebuttable. Therefore, in my opinion, Section 30 would apply and Ms. Truitt would be entitled to compensation benefits. The appeal should be accepted. Analysis (a) Did the Board act outside its jurisdiction in denying dependant benefits to the applicant based upon determination of the applicant’s deceased spouse was not “found dead” within the meaning of s. 30 of the Act? [28] The Supreme Court of Canada considered the appropriate standard of review that is to be applied to decisions of the Saskatchewan Workers’ Compensation Board in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] W.W.R. 517. In that case, the court considered the privative clause found in s. 22 of the Act and, in light of that privative clause determined that the standard of review will generally be one of patent unreasonableness. This, however, is not the case when “the tribunal has made an error in the interpretation of legislative provision limiting the tribunal’s powers”. In other words, s. 22 does not shield the Board’s decision from judicial review when the Board exercises its discretion to decide matter but the legislation did not “intend to commit the matter exclusively to the Board”. [29] In Baker v. Canada (Minister of Citizenship and Immigration) (1999), 1999 CanLII 699 (SCC), 174 D.L.R. (4th) 193 (S.C.C.), Madam Justice L’Heureux-Dubé considered the standard of review to be applied to matters of discretion. At p. 226 she observed: .However, though discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter. [30] Thus, while the Board does have discretion to create policy that enable it to carry out its statutory mandate, the policies must not take the Board beyond the discretion afforded to them by the statute. [31] In Henry v. Saskatchewan (Workers’ Compensation Board) (1999), 1999 CanLII 12241 (SK CA), 172 D.L.R. (4th) 73, the Saskatchewan Court of Appeal considered the standard of review that is properly applicable to s. 30 of the Act, and found it to be the correctness standard, rather than the patent unreasonable one. Chief Justice Bayda specifically reconciled this with the privative clause when he comments at p. 98 as follows: .while s. 22 vests the Board the tribunal with the exclusive power of determining whether worker’s death was the result of an “injury”, s. 30 limits that power where particular set of circumstances exists. It is obvious from the foregoing that it is the second and not the first proposition summarized in Bibeault [U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048] that applies to this case. Accordingly, the standard of review is the “mere error” of law standard and not the “patently unreasonable” standard. [32] Chief Justice Bayda further commented on the jurisdictional issue involving s. 30 wherein he comments in the following fashion at pp. 81-82: The jurisdictional issue raises this critical question: Where the facts as determined by the Board are that worker was found dead at place where he had right to be in the course of his employment, does s. 30 of The Workers’ Compensation Act, 1979 leave any discretion to the Board to determine whether the worker’s death was the result of injury arising out of and in the course of his employment? Section 30 reads as follows: 30. Where worker is found dead at place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment. Ordinarily, by reason of s. 22(1)(a) and (b) of the Act the Board would have complete discretion to make the determination of the matters stated in the presumption. Section 22(1)(a) and (b) read: 22(1) The board shall have exclusive jurisdiction to examine, hear and determine all matters and questions arising under this Act and any other matter in respect of which power, authority or discretion is conferred upon the board and, without limiting the generality of the foregoing, the board shall have exclusive jurisdiction to determine: (a) whether any condition or death in respect of which compensation is claimed was caused by an injury; (b) whether any injury has arisen out of or in the course of an employment; The critical question, in effect, addresses itself to the limits, if any, s. 30 places on the “exclusive jurisdiction” bestowed by s. 22. If the answer to the critical question is “no” two things follow: (i) the Board has no jurisdiction to inquire into the circumstances of worker’s death for the purpose of determining whether the death was the result of injury arising out of and in the course of his employment; the resolution of that issue has been legislated and the Board is bound by that legislated resolution. (ii) evidence showing the category or kind of the worker’s death (e.g. accident or suicide) and evidence showing the cause of the worker’s death is irrelevant. [33] Chief Justice Bayda continues further at pp. 82-83 wherein he observes: In my respectful view, the wording of the enactment, its context and the purpose of the Act are all important considerations. approach the interpretation of s. 30 from that perspective. Any consideration of the wording requires clear understanding of the difference between an irrebuttable (sometimes called “conclusive”) presumption of law and rebuttable presumption. Sopinka, Lederman Bryant in The Law of Evidence in Canada (Toronto: Butterworths, 1992) capture that distinction in these excerpts: conclusive presumption is rule of substantive law clothed in the language of presumptions. For example, at common law it was conclusively presumed that child under seven was incapable of committing any criminal offence and proffered evidence that the child was capable of committing the offence was inadmissible. [34] At p. 97 Chief Justice Bayda offers the following conclusion: In the result, have concluded that the presumption housed in s. 30 is irrebuttable. answer the critical question posed at the start “no”. That section leaves no discretion to the Board to determine whether worker’s death was the result of injury arising out of and in the course of his employment where the facts, as determined by the Board, are that the worker was found dead at place where he had right to be in the course of his employment. It follows, the Board had no jurisdiction to inquire into the circumstances of Mr. Henry’s death for the purpose outlined and no jurisdiction to make determination contrary to the presumption. [35] In considering the issue of whether Mr. Truitt was “found dead” in the workplace within the meaning of s. 30 of the Act, am of the view that the majority decision of the respondent was such as to regard s. 30 as housing rebuttable presumption. This is particularly so in considering the evidence placed before the Board, including that of the ambulance records, hospital records and opinion of Dr. Donat. All of the evidence placed before the Board clearly indicates that Mr. Truitt was “found dead” at his place of work. No one was present at the time of Mr. Truitt’s actual passing and when last seen by anyone in the workplace, while he was experiencing discomfort, he was alive. When Mr. Lang next found Mr. Truitt, he was clearly deceased and accordingly found dead within the meaning of s. 30. To that end am in agreement with the minority decision of the respondent Board. Accordingly, whether one views the standard of review as correctness or patent unreasonableness, the decision of the majority of the Board is in error and subject to the reviewing jurisdiction of this court. Accordingly, I am of the view that the Board did act outside its jurisdiction in denying dependant benefits to the applicant based upon a determination that the applicant’s deceased spouse was not found dead within the meaning of s. 30 of the Act. The majority decision in Henry v. Saskatchewan (Workers’ Compensation Board), supra, clearly precludes approaching an analysis of s. 30 as in any way representing a rebuttable presumption. Rather the contrary is clearly articulated, s. 30, (as it was at the relevant time 1998) embodies an irrebuttable presumption. Therefore, any framework of analysis which commences to explore possible or probable causes of death runs afoul of the rationale as articulated by the majority decision of the Saskatchewan Court of Appeal. (b) Did the Board act outside its jurisdiction in not applying the presumption contained in s. 30 of the Act in favour of the applicant? [36] For the fundamental reasons set forth in the above analysis, I am of the view that the Board did act outside its jurisdiction in not applying the presumption in favour of the applicant. In pursuing the analysis, once it is presumed that the worker, in this case Mr. Truitt, was found dead in the workplace, the presumption contained in s. 30 must be applied in favour of the applicant. The Board’s failure to do so amounts to reviewable error of law. (c) Were the Board’s determinations of November 20, 2002 relating to ss. 45 and 47 of the Act within its jurisdiction? [37] Sections 45 and 47 of the Act, in short, provide limitation period for an application for benefits, and the attendant discretion to the Board to waive this period. [38] The Saskatchewan Court of Appeal in Goertzen v. Saskatchewan (Workers’ Compensation Board) (2002), 2002 SKCA 125 (CanLII), 227 Sask. R. 146 dealt with the interpretation of s. 21(5) of The Workmen’s Compensation (Accident Fund) Act, R.S.S. 1930, c. 303 (the “1930 Act”) which was similar to the current s. 47. Mr. Justice Cameron on behalf of the court comments upon the factual backdrop at p. 147 in the following fashion: On January 30, 1950, Issac Fehr, 23 year-old man employed as log roller by Carrot River sawmill and planing company, collapsed and died on the job. According to fellow worker, he and Mr. Fehr had rolled log and were walking back to the log pile when Mr. Fehr fell to the ground. The two of them had been doing their usual work of rolling logs with cant hooks and nothing out of the ordinary had occurred. Forty seven years later, on July 21, 1997, Mr. Fehr’s wife, Mary Goertzen, applied to the Workers Compensation Board for compensation. [39] The court further comments at p. 152 in the following fashion: We might add, having regard for the two remaining grounds upon which the application to the Court of Queen’s Bench was made, that we can see nothing in either of them to warrant upholding the decision of the chamber judge on that basis. We might also add that, in light of the passage of time, it was open to the Board throughout to act on subsection 21(5) of the Act. Indeed compensation for Mr. Fehr’s death could not have been paid unless the Board, in exercise of the discretionary power conferred upon it by subsection 21(5), was of the opinion the claim was “just one and should be allowed.” The combined effect of this and the patently unreasonable standard of review leaves no room for interference with the decision of the Board. [40] am of the view that the current situation is distinguishable from that in Goertzen v. Saskatchewan (Workers’ Compensation Board), supra. [41] In this instance the applicant’s claim was promptly brought once she became aware of her right to do so. The applicant provided an explanation for delay in bringing the matter. From the outset, the Board canvassed the claim being aware of the fact that the claim was brought outside of the six month prima facie limitation period. [42] After denying the claim on two occasions, in September and October of 2001, without any mention of the issue of delay, the respondent Board held first oral hearing to further assess the merits of the claim. Following this hearing, the Board acknowledged that it had reached an “impasse” about the claim and invited the applicant to participate in second hearing before larger panel of three Board members including the chairperson. [43] The initial hearing, as noted earlier, occurred on March 21, 2002. Section 45 and the six month limitation was not raised in any fashion at that hearing or in the steps leading up to the March 21, 2002 hearing. The issue of delay (s. 45) arose for the first time after the applicant requested full board hearing following the impasse arising out of the March 21, 2002 hearing. As noted, at the second hearing, resulting in an adjudication, s. 45 and s. 47 were substantively relied upon by the Board. [44] In Goertzen v. Saskatchewan (Workers’ Compensation Board), supra, the issue of delay was raised at the stage of both the appeal committee and the Board’s initial written decision, as well as in the decision under review and the certiorari application giving rise to the court process. That situation is markedly different from what occurred in the instant case wherein the Board on October 29, 2001, in written decision dismissed the claim without mentioning that delay was in any way substantive reason for doing so. The Board’s October 29, 2001 decision deals with the issue of the application of s. 30 to the progression of events leading up to Mr. Truitt’s death. That decision in its entirety provides as follows: An appeal has been received by Ms. Gloria Truitt, surviving spouse of Mr. Scott Truitt. Ms. Truitt is appealing the Board’s decision to deny her husband’s claim, under Section 30 of the Workers’ Compensation Act. Mr. Truitt was working at the University of Saskatchewan as Master student at St. Thomas Moore [sic] College on March 2, 1998. While teaching class he felt ill and left the classroom with the help of students who took him to lounge. His symptoms at that time included headache, vomiting and flu-like symptoms. He was left alone for approximately 30 to 45 minutes while arrangements were made to get him and his vehicle home. He was found in locked washroom, lying on the floor apparently unconscious. CPR was performed by colleague and then by First Responders before transferring him to the Royal University Hospital where he was pronounced dead. An autopsy report showed Mr. Truitt had berry aneurysm of the right middle cerebral artery which caused his death. Client Services has determined Mr. Truitt’s family is not entitled to any benefits as Mr. Truitt passed away as result of congenital aneurysm. Section 30 of the Act states, “Where worker is found dead in place where he had right to be in the course of his employment, it is presumed that his death was the result of injury arising out of and in the course of his employment.” Mr. Truitt was not “found dead” at his place of employment on March 2, 1998. He presented with symptoms while he was still in the classroom and he was taken to the faculty lounge. These symptoms were indicative of the congenital aneurysm which was later determined to have caused his death. As Mr. Truitt was not found dead and there were witnesses at the time of his symptomology, Section 30 of the Act does not apply. The appeal is denied. [45] In this instance, the Board’s ultimate decision, as well as preliminary decisions leading to it, demonstrate that the respondent Board delved into the merits of the claim in variety of ways, including collection of background information, and by holding two oral hearings. Even after the second hearing, where the respondent Board raised the delay issue for the first time, the Board continued to solicit further medical information, again illustrating that it was substantively considering the merits of the applicant’s claim. [46] I am of the view, for the foregoing reasons, that the Board has waived the right to rely upon the delay in bringing the claim. Here, the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. This cumulative conduct in my view amounts to waiver by the respondent. [47] Accordingly, have concluded that it was not open to the Board as part of its concluding process to deny the applicant’s claim based upon ss. 45 and 47. [48] In the event that am wrong in my perception of the principle that the Board has waived the right to raise this issue, am of the alternative view that in any event the Board’s decision involving delay was patently unreasonable. [49] The Board’s decision suggests that the phrase “where the Board considers that the claim for compensation is fair and just” in s. 47 of the Act is subject to two possible interpretations: (a) The justice of waiving the six month limitation period involves an examination of the reasons for the delay. Are there reasons for the delay such that it would be just to allow the claim? or (b) Do the substantive merits of the claim lead to conclusion that the claim should be allowed in spite of the delay? [50] In considering the first of these potential interpretations, the Board does not appear to consider the full impact of the fact that the applicant was unaware of her right to apply for such benefits. Her husband’s employer neither notified the Board of Mr. Truitt’s death nor did it explain to Ms. Truitt that she had right to consider potential claim under the legislation. The Act in fact mandates that an employer is required to report injuries which may prevent an employee from working. Despite the clear onus and significant reporting responsibility that the Act places upon employers, the omission by Mr. Truitt’s employer to report the claim or to advise Ms. Truitt of her right to do so was not considered in examining the question of whether Ms. Truitt had demonstrated justifiable excuse for the delay. [51] Further, the Board states that it “considers it likely that no claim was submitted within the six months as neither the employer, nor Ms. Truitt believed that Mr. Truitt’s death was related to his employment”. This comment appears to be contrary to the proposition in Henry v. Saskatchewan (Workers’ Compensation Board), supra, wherein it is established that it does not matter whether worker’s employer or his dependants believe that worker’s death was related to his employment, as circumstantial, medical, and opinion evidence to that end is irrelevant when worker is found dead. [52] In determining that it would not be just to waive the six month reporting requirement in s. 45 of the Act, the Board focuses on its belief as to the cause of Mr. Truitt’s death, an inquiry which the presumptive portion of s. 30 indicates should not occur. [53] The applicant has demonstrated an entitlement to an order by way of certiorari, pursuant to Rule 664 of the Queen’s Bench Rules of Court, quashing the decision of the Workers’ Compensation Board dated November 22, 2002, and further for an order by way of mandamus, pursuant to Rule 674 of the Queen’s Bench Rules of Court, remitting the matter of the applicant’s claim for benefits back to the Workers’ Compensation Board of Saskatchewan to be dealt with according to law, and so order. Further, there shall be an attendant order of mandamus compelling the Board to perform its statutory duty to apply the presumption set forth in s. 30 of The Workers’ Compensation Act, 1979, supra, in the applicant’s favour. [54] The applicant shall have her costs of the motion, on a party and party basis, to be taxed. [55] Order accordingly.
The deceased was a master's student who also worked as a student assistant at the University of Saskatchewan. He became ill while teaching a class. His students helped him to the faculty lounge. He was found in the faculty washroom unconscious and not breathing approximately 30 minutes later. Emergency medical technicians were not able to resuscitate him and he was pronounced dead at the Royal University Hospital. An application for dependants' benefits was submitted over 3 years later. The Workers' Compensation Board denied the claim finding that the deceased was not found dead at work and because of the delay in bringing the claim. The applicant brought an application for an order of certiorari pursuant to Queen's Bench Rule 664 and mandamus pursuant to Queen's Bench Rule 674. HELD: 1) The Board acted outside of its jurisdiction in denying dependant benefits to the applicant based upon a determination that the deceased was not found dead within the meaning of s. 30 of The Workers' Compensation Act, 1979. The case law clearly precludes an analysis of s. 30 of the Act as in any way representing a rebuttable presumption. 2) The Board acted outside its jurisdiction in not applying the presumption in s. 30 of the Act in favour of the applicant. 3) The Board waived the right to rely upon the delay in bringing the claim after the Board participated in a variety of levels of proceeding, including two hearings, and only raised the issue of delay at the final hearing. 4) The application was allowed with costs to the applicant on a party and party basis.