J. QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 424 Date: 2005 10 05 Docket: Q.B.G. No. 1275 of 2005 Judicial Centre: Regina IN THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH AND THE INHERENT SUPERVISORY JURISDICTION OF THE COURT BETWEEN: BRAD GALGER and THE WORKERS’ COMPENSATION BOARD OF SASKATCHEWAN Counsel: R.A. Nordal for the applicant W.P. Dale for the respondent FIAT CURRIE J. October 5, 2005 [1] On December 18, 2000 the medical review panel of the Workers’ Compensation Board of Saskatchewan decided that Brad Galger was not fit for employment. On January 20, 2005 the Board’s appeals committee upheld a 2004 decision of the Board’s case management division that Mr. Galger was fit for employment. [2] Mr. Galger says that the decisions of the Board’s case management division and appeals committee are contrary to s. 64(2) of The Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1: 64(2) The decision of the majority of the members of the medical review panel is the decision of the panel and is binding upon the board and the worker. [3] Mr. Galger applies to the court for an order: (a) in the nature of certiorari quashing or setting aside the decisions that Mr. Galger was and is fit for employment; (b) as consequence, remitting the matter back to the medical review panel, if required; and (c) as consequence, in the nature of mandamus directing the Board to pay benefits to Mr. Galger in accordance with the decision of the medical review panel. [4] Although Mr. Galger has another avenue of appeal available to him within the workers’ compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. [5] The Board says that, on examination of the circumstances, the decisions are not contrary to s. 64(2), and that in any event Mr. Galger must exhaust his right to appeal before seeking judicial review. [6] Mr. Galger says that the return should include his counsel’s April 5, 2005 letter and the April 13, 2005 reply from the Board’s appeals committee. He argues that the April 13, 2005 letter is clarification of the Board’s position, and that it can be understood only by reference to the April 5, 2005 letter. [7] The April 5, 2005 letter from Mr. Galger’s counsel attaches letter from Mr. Galger’s doctor, and indicates that Mr. Galger is on surgical waiting list. The April 13, 2005 reply from the appeals committee advises that the committee is not changing its January 20, 2005 decision, because nothing in the April 5, 2005 correspondence changes the committee’s conclusion that Mr. Galger is fit for employment. [8] The Board takes the position that the letters are neither part of the impugned decisions nor part of the record. [9] The Board is correct. Rule 669 requires return that includes information up to and including the impugned decision and the reasons therefor. Such information has been provided in the return in this case. [10] The Board’s appeals committee did not create clarification or addendum to its decision or reasons by simply responding to the letter from Mr. Galger’s counsel. In that response there is no decision, and there is no expansion on the January 20, 2005 decision. [11] The return will not be amended to include the documents suggested by Mr. Galger. The panel’s decision [12] On December 18, 2000 the medical review panel issued certificate, the relevant parts of which provided that: (a) Mr. Galger was not fit for employment; and (b) “after proper surgical treatment and surgical fusion it is hoped that the permanent functional impairment will be minimal”. [13] On August 13, 2001 the medical review panel issued an “additional clarification” to its earlier decision. The clarification states: 1) If surgery is booked or planned it should be expedited then functional capacity evaluation should follow his post surgical rehabilitation period. 2) If Mr. Galger wants surgery and it is not planned the panel urges an immediate surgical consultation. 3) If Mr. Galger refuses the recommended surgery (as per the medical review panel certificate of December 18, 2000) then the functional capacity evaluation should proceed to determine his fitness for employment and further evaluation would be required. The Board’s actions [14] Following delivery of the medical review panel’s December 18, 2000 certificate, the Board began to develop the view that Mr. Galger might be fit for employment after all. The Board thought this because Mr. Galger actually was working full-time at the time of the panel’s review. [15] The Board, through its case management division, eventually asked Mr. Galger to undergo functional capacity evaluation, and Mr. Galger did so in May 2003. Following completion of the functional capacity evaluation the case management division evaluated Mr. Galger’s claim, and the division concluded in April 2004 that Mr. Galger was fit for employment. [16] Effective July 1, 2004 the division reduced Mr. Galger’s benefits. That led to Mr. Galger’s appeal to the Board’s appeals committee. In its January 20, 2005 decision the appeals committee upheld the determination that Mr. Galger was fit for employment. This decision has led Mr. Galger to apply for judicial review of both the decision of the case management division and decision of the appeals committee. [17] It is not necessary for me to address Mr. Galger’s argument on the issue of jurisdiction because, however that issue might be determined, his application is determined on the issue of the availability of relief in the nature of certiorari. Availability of relief in the nature of certiorari [18] Mr. Galger acknowledges that he has available further right of appeal in the workers’ compensation system. He may appeal from the decision of the appeals committee to the Board members. [19] Such circumstance was addressed by the Saskatchewan Court of Appeal in Bayne No. 371 (Rural Municipality) v. Saskatchewan Water Corp. (1990), 1990 CanLII 7675 (SK CA), 90 Sask. R. 102. Referring to the Supreme Court of Canada decision in Harelkin v. University of Regina, 1979 CanLII 18 (SCC), [1979] S.C.R. 561, Cameron, J.A. said at paras. [9] We indicated that we were, of course, bound by the statements of principle found in the majority decision in Harelkin’s case. Mr. Justice Beetz, speaking for the majority expressed three opinions of particular significance to the matter at hand. [10] The first had to do with whether, in principle, certiorari goes as of right or grace, even in cases entailing lack of jurisdiction. He said this (at pp. 574-576): “The principle that certiorari and mandamus are discretionary remedies by nature cannot be disputed. The principle was recently affirmed in unanimous decision of this Court, P.P.G. Industries Canada Ltd. v. The Attorney General of Canada, 1975 CanLII 204 (SCC), [1976] S.C.R. 739 at p. 749 ... “The use of the expression ex debito justitiae in conjunction with the discretionary remedies of certiorari and mandamus is unfortunate. It is based on contradiction and imports great deal of confusion into the law. “Ex debito justitiae literally means ‘as of right’, by opposition to ‘as of grace’ (P.G. Osborne, Concise Law Dictionary, 5th ed.; Black’s Law Dictionary, 4th ed.); writ cannot at once be writ of grace and writ of right. To say in case that the writ should issue ex debito justitiae simply means that the circumstances militate strongly in favour of the issuance of the writ rather than for refusal. But the expression, albeit latin, has no magic virtue and cannot change writ of grace into writ or right or destroy the discretion even in cases involving lack of jurisdiction.” [11] The second concerned whether, conceptually, an order which is nullity might nevertheless be appealed, depending on the scope and effect of the appeal provisions bearing on that issue. Of this Mr. Justice Beetz said (at p. 586): “Furthermore, and even if it can be said that the decision of the council committee was nullity, believe it was still appealable to the senate committee for the simple reason that the senate committee was given by statute the power to hear and decide upon appeals from the decisions of the council, whether or not such decisions were null ... Prov. Sec. P.E.I. Egan, 1941 CanLII (SCC), [1941] S.C.R. 396; 76 C.C.C. 227; [1941] D.L.R. 305 ...” [12] The third of the opinions of particular significance to the instant case centred on whether the right of appeal there in issue “constituted an adequate alternative remedy”. Mr. Justice Beetz suggested that that question be addressed with reference, among other considerations, to the nature of the complaint and the right of appeal; the composition, powers and duties of the appellate body; the manner in which it was apt to exercise its powers; and the comparative expedition and cost of proceeding by way of appeal rather than alternatively. [13] In light of the foregoing, we took Harelkin’s case as standing for the following propositions: 1. Certiorari remains “a writ of grace” to grant or withhold as, in the discretion of the court, circumstances suggest. 2. If in the circumstances right of appeal of sufficient scope and appropriate effect exists, then an order, even though it be nullity, is nevertheless appealable. 3. If the right of appeal provides an “adequate alternative remedy”, having regard for the considerations bearing upon that matter, the residual discretion in the court will ordinarily be exercised in denial of certiorari. Only if “special circumstances” are present will the courts then exercise their prerogative power and quash on certiorari. [20] When person has an adequate alternative remedy available that he or she has not pursued, relief in the nature of certiorari is not available to that person except in special circumstances: Bayne at para. 13. Mr. Galger has available to him further right of appeal that he has not pursued. [21] He argues, though, that the decisions that he is fit for employment were made without jurisdiction, so that there is no proper decision from which to appeal. In effect, he argues that each of the decisions of the case management division and of the appeals committee is nullity, depriving Mr. Galger of an adequate alternative remedy. As discussed in Bayne at paras. 11 and 13, however, even if the decision is nullity it still can be appealed. [22] If the appeal available to Mr. Galger in the workers’ compensation system is an adequate alternative remedy, then in the absence of special circumstances he must attempt to have the alleged error of fact remedied through appeal before resorting to judicial review. Adequate alternative remedy [23] The right of appeal from the appeals committee to the Board members does provide Mr. Galger with an adequate alternative remedy. The power of the Board to delegate its powers, and to provide for review of decisions made under the Act, stems from ss. 19, 21-24 and 104(1): 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. 21(1) The board may delegate any of its powers or functions to any of its staff and any employer or worker affected by any act of person in the exercise of any delegated power may apply to the board to review, set aside, amend, stay or otherwise deal with the act of that person. (2) The board may, upon an application under subsection (1) or of its own motion, exercise its powers and perform its functions with respect to the delegated power in issue as if the person had not acted in that manner. 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 (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. (3) Notwithstanding subsection (2), the board may reconsider any matter that it has dealt with or may rescind, alter or amend any decision or order it has made. 23 The board shall have the same powers as the Court of Queen’s Bench for compelling the attendance of witnesses and examining them under oath, and compelling the production of books, papers, documents and things. 24 The board may cause depositions of witnesses residing within or outside the province to be taken before any person appointed by the board, in manner similar to that prescribed in The Queen’s Bench Rules for the taking of those depositions. 104(1) Any weekly or other periodical payment to worker or dependent spouse of worker payable out of the fund may be reviewed on the motion of the board or at the request of the worker, dependent spouse or employer and, on that review, the board may terminate or diminish the payment or may increase the payment to sum not beyond the maximum compensation prescribed in this Act. [24] Under these provisions the Board has established its appeal process, including final right of appeal to the Board members. The Board has made information available to workers that describes the appeal process. That information includes: (a) Saskatchewan Workers’ Compensation Board policy no. POL 03/96, entitled “Appeals”; (b) Saskatchewan Workers’ Compensation Board policy no. POL 13/91 (amended by ADM03/2000), entitled “Reversing Decisions”; and (c) Saskatchewan Workers’ Compensation Board Fact Sheet, entitled “Appeals: how to have an injury claim decision reviewed”. [25] These materials establish that: (a) worker who disagrees with decision of the appeals committee may obtain “further review” by the Board members; (b) if requested by the worker, the Board review will include personal attendance by the worker; (c) in appeal proceedings worker may be represented; (d) there is no restriction of the subject matter of an appeal to the Board members; and (e) Board members will rule on an appeal with full written reasons. [26] The subject matter of an appeal to the Board members is not limited to points of law, and so on appeal the Board members would be able to consider Mr. Galger’s issue of fact. [27] In the case of the Board there is not, in either the Act or in the information made available by the Board, detailed recitation of procedures relating to an appeal to the Board’s members. Countering that absence, though, are the remarks of Sopinka, J. in Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), 1997 CanLII 316 (SCC), [1997] S.C.R. 890 at pages 913-914: The composition, tenure, and powers of the Board demonstrate that it has very considerable expertise in dealing with all aspects of the workers’ compensation system. Not only does the Board have day-to-day expertise in handling claims for compensation, in setting assessment rates and promoting workplace safety; but it also has expertise in ensuring that the purposes of the Act are not defeated. As Wakeling J.A. commented at p. 301 in his dissenting reasons: [The Board members] are well equipped to draw on background of experience to determine how the Act will best function so as to assure continued consistent development of the intended purposes of the Act. have no reason to doubt they are well qualified to decide the various issues the legislation is designed to present them. [28] The legislature has chosen to establish the workers’ compensation system as an self-contained system, with no right of appeal to the courts beyond the final decision of the Board: s. 22(2). The legislature regarded this as sufficient in matters of workers’ compensation, likely because of the extensive system that it established in the Act. [29] Finally, especially in light of the comments of Sopinka, J. in Pasiechnyk, there is no reason to suppose that the Board members would not effectively deal with the issue raised by Mr. Galger. Conclusion [30] Whether or not each of the impugned decisions was made without jurisdiction and consequently is a nullity, Mr. Galger has an adequate alternative remedy available to him. No special circumstances, that might justify judicial intervention at this time, have been presented. An order in the nature of certiorari is not available to Mr. Galger because he has not yet pursued his right of appeal. [31] The application is dismissed. The parties may speak to costs. J. G.M. CURRIE
FIAT: In December 2000, the medical review panel of the Workers' Compensation Board of Saskatchewan decided that the applicant was not fit for work. On January 2005, the Board's appeals committee upheld a 2004 decision of the Board's case management division that the applicant was fit for employment. Although the applicant has another avenue of appeal available to him within the workers' compensation system, he takes the position that the impugned decisions were made without jurisdiction, so that there is no proper decision from which to appeal, leaving him with an application for judicial review as his only remedy. HELD: Whether or not the impugned decisions were made without jurisdiction and consequently are a nullity, the applicant has an adequate alternative remedy available to him. No special circumstances that might justify judicial intervention at this time have been presented. An order in the nature of certiorari is not available to him because he has not yet pursued his right of appeal. The application is dismissed.