C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL Hallett, Chipman and Flinn, JJ.A. BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and DONALD LANGLEY Respondent David P.S. Farrar for the Appellant Louis M. Walsh for the Respondent Appeal Heard: May 29, 1995 Judgment Delivered: June 20, 1995 THE COURT: The appeal is allowed and the decision and order of the Chambersjudge are set aside as per reasons for judgment of Chipman, J.A.; Hallett and Flinn, JJ.A., concurring. CHIPMAN, J.A.: This is an appeal from a decision in the Supreme Court in Chambers allowing an application for certiorari to quash a decision of the Workers\' Compensation Board and remitting the matter to the Board to determine the rate of compensation payable to the respondent in accordance with s. 37 of the Workers\' Compensation Act, R.S.N.S. 1989, c. 508. The respondent had worked for M-I Drilling Fluids Canada Inc. or its parent company since 1963, and experienced periods of layoff for as long as two years. He had returned to work in November 1990. Effective January 31, 1993 he was laid off from full-­time employment as warehouse manager. His last day worked as such was January 15, 1993. Since January 31, 1993, the respondent was employed by M-I on contract basis as property caretaker for which he was paid $100.00 weekly and, in addition, he was given part-time casual work for which he was paid at the rate of $15.00 per hour. The part-time work included at least some of the duties he had been performing before he was laid off. On March 16, 1993 while performing his casual work, the respondent sustained back injury. He was able to continue with his caretaking duties for which he was paid the weekly sum of $100.00, but he was unable to continue with the casual work. The respondent submitted claim to the Board and by decision dated June 14, 1993 the Claims Adjudicator of the Board found that the respondent had sustained back injury. He was found to be no longer disabled as of June 14, 1993, and had thus suffered total temporary disability within the meaning of the Act. As he was working on part-time basis, the Adjudicator found he was entitled to be paid compensation for one day of work per week from March 19, 1993 until May 26, 1993 and thereafter for one day of work per month until June 14, 1993. The respondent appealed to Review Officer of the Board who by decision dated December 20, 1993 affirmed the decision of the Adjudicator. The Review Officer's findings of fact included that effective January 31, 1993 the respondent was employed as labourer for one eight hour day per week. Effective May 26, 1993 he was employed as labourer for one eight hour day per month. Temporary total disability benefits had been awarded to him on the basis of wages lost as such labourer. Although the respondent was not disabled from his duties as caretaker, he was to be reimbursed on the basis of total temporary disability for the time lost from casual work. His appeal was dismissed. The respondent appealed to Hearing Officer of the Board who held hearing on March 1, 1994 and filed decision on March 22, 1994. The Hearing Officer reviewed the facts, noting that the respondent's "average weekly earnings" during the previous 12 months from February 1, 1992 to January 31, 1993, based on salary of $30,690 were $590.19. It was on this basis that the respondent's benefits were calculated, albeit on part-time basis. The Hearing Officer reviewed the decisions of the Claims Adjudicator and the Review Officer, the evidence of the respondent, as well as medical reports and other data relating to his income and employment. The Hearing Officer referred to s. 37 of the Act dealing with total temporary disability. She also referred to the respondent's lay off on January 31, 1993 and, in effect, declined to treat the respondent as full-time employee for the purpose of fixing compensation. At the time of the injury, the respondent was part-time employee and as result of the Adjudicator's decision, was compensated with respect to actual time missed from work. He thus received total temporary disability benefits from the Board to replace the income he would have earned as part-time employee had he not suffered the accident on March 16, 1993. The Hearing Officer concluded: "In light of the evidence on the file, do not accept the argument that Mr. Langley should have received temporary total disability benefits on 'full-time basis', given the fact that Mr. Langley's lay off may have been only temporary in nature. This assertion is speculative at best. The Workers' Compensation system is wage replacement system or wage loss system designed to compensate workers for actual wages loss as result of work related accidents. It would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of his accident, because this was not, in fact, the case. When Mr. Langley suffered his work related accident on March 16, 1993 he had been employed for the past six weeks on an hourly rate basis, earning $15.00 an hour and working one day week. He was not employed on full-time basis nor is there any indication in the file other than speculation, that Mr. Langley would have been reinstated to full-time status during the spring or summer of 1993." The Hearing Officer concluded that to compensate the respondent based on full-time employment status as of the date of the accident would be contrary to the evidence and to the intent of the legislation in performing wage replacement function. The appeal was dismissed. On certiorari proceedings before the Chambers judge, he reviewed the facts and the argument of counsel and referred to s. 37 of the Act: "37 Where temporary total disability results from the injury, the compensation shall be weekly payment of seventy-five percent of the worker's average weekly earnings during the previous 12 months, if he has been so long employed, but if he has not been so long employed, then for any less period during which he has been in the employment of his employer." After referring to the general principles regarding the standard of review by the courts of decisions of administrative tribunals, the Chambers judge concluded that s. 37 of the Act limited the Board's jurisdiction. Thus, he concluded that the interpretation by the Hearing Officer of such provision was one which was subject to review for correctness. The Chambers judge held that the Hearing Officer had ignored the clear words of s. 37 and had arbitrarily decided upon a different rate of compensation. The Board had thus exceeded its jurisdiction. The decision was quashed and the matter remitted to the Board to determine the rate of compensation in accordance with s. 37 of the Act. On the Board's appeal to this Court, two issues are raised: (1) whether s. 37 of the Act limits the Board's jurisdiction; (2) if s. 37 does not limit the Board's jurisdiction, whether the Board's decision was nevertheless patently erroneous and properly set aside in any event. ISSUE ONE JURISDICTIONAL LIMITATION The scope of review of tribunal decisions by courts was recently discussed by the Supreme Court of Canada in Pezin v. British Columbia (Superintendent of Brokers), 1994 CanLII 103 (SCC), [1994] S.C.R. 557 at 589-90. "From the outset, it is important to set forth certain principles of judicial review. There exist various standards of review with respect to the myriad of administrative agencies that exist in our country. The central question in ascertaining the standard of review is to determine the legislative intent in conferring jurisdiction on the administrative tribunal. In answering this question, the courts have looked at various factors. Included in the analysis is an examination of the tribunal's role or function. Also crucial is whether or not the agency's decisions are protected by privative clause. Finally, of fundamental importance, is whether or not the question goes to the jurisdiction of the tribunal involved. Having regard to the large number of factors relevant in determining the applicable standard of review, the courts have developed spectrum that ranges from the standard of reasonableness to that of correctness. Courts have also enunciated principle of deference that applies not just to the facts as found by the tribunal, but also to the legal questions before the tribunal in the light of its role and expertise. At the reasonableness end of the spectrum, where deference is at its highest, are those cases where tribunal protected by true privative clause, is deciding matter within its jurisdiction and where there is no statutory right of appeal. See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] S.C.R. 227, U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048, at p. 1089 (Bibeault), and Domtar Inc. v. Quebec (Commission d'appel en matiere de lesions professionelles), 1993 CanLII 106 (SCC), [1993] S.C.R. 756. At the correctness end of the spectrum, where deference in terms of legal questions is at its lowest, are those cases where the issues concern the interpretation of provision limiting the tribunal's jurisdiction (jurisdictional error) or where there is statutory right of appeal which allows the reviewing court to substitute its opinion for that of the tribunal and where the tribunal has no greater expertise than the court on the issue in question, as for example in the area of human rights. See for example Zurich Insurance Co. v. Ontario (Human Rights Commission), 1992 CanLII 67 (SCC), [1992] S.C.R. 321, Canada (Attorney General) v. Mossop, 1993 CanLII 164 (SCC), [1993] S.C.R. 554 and University of British Columbia v. Berg, 1993 CanLII 89 (SCC), [1993] S.C.R. 353." This Court recently reviewed these principles in Cape Breton Development Corporation v. Workers' Compensation Board Nova Scotia, et al. (unreported February 6, 1995) when at p. Hallett, J.A. said: ... In my opinion one of the clearest statements on this question is that made by Mr. Justice Beetz of the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048 at pp. 1086 to 1090. The key parts of his statements are the following: 'In its decision tribunal may have to decide various questions of law. Certain of these questions fall within the jurisdiction conferred on the tribunal; other questions however may concern the limits of its jurisdiction. It is, think, possible to summarize in two propositions the circumstances in which an administrative tribunal will exceed its jurisdiction because of error: 1. if the question of law at issue is within the tribunal's jurisdiction, it will only exceed its jurisdiction if it errs in patently unreasonable manner; tribunal which is competent to answer questions may make errors in so doing without being subject to judicial review; 2. if however the question at issue concerns legislative provision limiting the tribunal's powers, mere error will cause it to lose jurisdiction and subject the tribunal to judicial review."' In Canadian Broadcasting Corporation v. Canada (Labour Relations Board), 1995 CanLII 148 (SCC), [1995] S.C.R. 157, lacobucci, J. writing for the majority of the Supreme Court of Canada said at p. 179: ... In distinguishing jurisdictional questions from questions of law within tribunal's jurisdiction, this Court has eschewed formalistic approach. Rather, it has endorsed 'pragmatic and functional analysis', to use the words of Beetz J. in U.S.E., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] S.C.R. 1048. In that decision Beetz J. noted, at p. 1088, that it was relevant for the reviewing court to examine: '. not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal.' The goal is to determine whether the legislature intended that the question in issue be ultimately decided by the tribunal, or rather by the courts." We must determine then whether the Board's interpretation of s. 37 of the Act was within its jurisdiction or whether such provision was one conferring jurisdiction on the Board. The purpose of the Act is to provide compensation on no-fault basis to workers who are injured on the job. The compensation is designed, as far as available resources permit, to replace lost earnings or compensate for lost earning capacity. See Hayden v. Workers' Compensation Appeal Board (1990), 1990 CanLII 2423 (NS CA), 96 N. S. R. (2d)108. The cost of the benefits is met from the levies charged by the Board against employers in the industries governed by the Act, based upon payrolls. The Board administers the entire scheme. Claims by workers are decided in the first instance by the Claims Adjudicator. An appeal lies to Review Officer and further appeal lies to Hearing Officer. The Board, acting through these officials can be presumed to have high level of expertise in the assessment of disabilities and awarding compensation. In determining the legislative intent as to where the ultimate decision making power is to rest, the following sections of the Act are relevant: "148 The Board has jurisdiction to inquire into, hear and determine all matters and questions of fact and law necessary to be determined in connection with compensation payments and the administration thereof and the collection and management of the funds therefor. 150 Except as stated in Sections 169, 182 and 183, the decisions and findings of the Board upon all questions of law and fact shall be final and conclusive, and in particular, but not so as to restrict the generality of the powers of the Board hereunder, the following shall be deemed to be questions of fact: (d) the degree of diminution of earning capacity by reason of any injury; (e) the amount of average earning;" (emphasis added) Sections 169, 182 and 183 are not relevant to this inquiry. In my opinion, the Board's function in applying s. 37 involves the determination of matter within its jurisdiction, namely the fixing of compensation for temporary total disability based on the amount of average weekly earnings. Another section available for the Board's use in carrying out this function is s. 53, and in particular subsection thereof. It appears that this section was not drawn to the attention of the Chambers judge. "53 (1) Where owing to the shortness of the time during which the worker was in the employment of his employer or the casual nature of his employment or the terms of it, it is impracticable to compute the rate of remuneration as of the date of the accident regard may be had to the average weekly or monthly amount which during the twelve months previous to the accident was being earned by person in the same grade employed at the same work by the same employer or if there is no person so employed then by person in the same grade employed in the same class of employment and in the same locality. (2) Employment by the same employer shall mean employment by the same employer in the grade in which the worker was employed at the time of the accident uninterrupted by absence from work due to illness or any other unavoidable cause. (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident." These are not sections which confer or limit jurisdiction on the Board, but rather they govern the Board in carrying out its function of determining compensation in case of disability. The Board is not here concerned with its jurisdiction to award compensation, but rather the amount that ought to be awarded in given case. In my opinion, the Board's interpretation of s. 37 must be judged not by standard of correctness but by standard of reasonableness. The only question left to determine is whether the interpretation by the Hearing Officer was patently unreasonable. ISSUE TWO REASONABLENESS At first blush, it is tempting to say that s. 37, when applied to this case, left the Hearing Officer with no other choice but to take the average earnings of the respondent during the one year period from March 17, 1992 to March 16, 1993, all of which earnings were received during his employ with M-I Drilling Fluids Canada Inc. That is certainly an interpretation of s. 37 which is not unreasonable. However, in considering the application of s. 37, it was also open to the Board to have regard to the Act as whole. On January 31, 1993, the respondent's employment status changed. He was laid off from full-time hourly employment. In its place, the same employer engaged him in two separate ways: contract employment as watchman at rate of $100.00 week (from which he was not disabled) and part­time hourly employment totaling one day week until May 26, 1993 and one day month thereafter. As the Hearing Officer observed "it would be improper to pay Mr. Langley benefits that would reflect Mr. Langley was employed on full-time basis as of the date of the accident, because this was not, in fact, the case." The result of accepting the respondent's submission would be that the hearing officer would award him 75% of an amount close to full-time worker's pay. At the time he was injured he was not full-time worker. This would mean that he would get more compensation than he would have received from his work had he not been disabled. The Hearing Officer rejected the contention that the lay off was temporary, holding that it "was speculative at best". This finding negates any argument based on loss of earning capacity. It was open to the Board to take different approach from that mandated by s. 37. The other option was that prescribed by s. 53(3): "53 (3) Where in any case it seems more equitable, the Board may award compensation having regard to the earnings of the worker at the time of the accident." This provision was particularly applicable to the unique situation before the Hearing Officer. As the privative clause makes clear, the intention of the legislature was to confer upon the Board and not the courts the function of awarding compensation to disabled workers. The scheme of the Act contemplates that the officials of the Board are persons versed in carrying out their function of assessing disabilities, fixing compensation and raising the money to pay for it. In applying the provisions of the Act in the way that she did, I cannot say that the Hearing Officer adopted a patently unreasonable interpretation. Indeed, such interpretation was sensible one in accord with the justice of the situation. I would allow the appeal and set aside the decision and order of the Chambers judge. There should be no costs to either party on this appeal. Chipman, J.A. Concurred in: Hallett, J.A. Flinn, J.A. 1994 S.H. No. 107846 IN THE SUPREME COURT OF NOVA SCOTIA BETWEEN: DONALD LANGLEY -and­- WORKERS' COMPENSATION BOARD OF NOVA SCOTIA DECISION HEARD: at Halifax, Nova Scotia before The Honourable Justice Gordon A. Tidman on September 22, 1994, in Chambers DECISION: November 4, 1994 COUNSEL: Louis M. Walsh, Solicitor for the Applicant Graham J. Steele, Solicitor for the Respondent C.A. No. 113623 NOVA SCOTIA COURT OF APPEAL BETWEEN: WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA -and- DONALD LANGLEY Respondent REASONS FOR JUDGMENT BY: CHIPMAN, J.A.
The appellant Board granted the respondent temporary total disability benefits on a part-time basis. The respondent contended that it should be on a full-time basis, and applied to the Supreme Court in chambers for an order quashing the appellant's decision. The chambers judge found that the appellant had ignored the clear words of s.37 of the Workers' Compensation Act in reaching its decision, and thus had exceeded its jurisdiction; the decision was quashed and the matter remitted back to the Board. The appellant appealed. Allowing the appeal and setting aside the order to quash, that s.37 of the Act was not a section limiting the Board's jurisdiction and that, considering s.37 and s.53 of the Act, the decision of the Board was not patently erroneous.