The Alberta Court of Queen’s Bench concluded that the Appeals Commission of the WCB (the “Appeals Commission”) made no reviewable error in concluding that the Respondent was an insured worker acting in the course of his employment when he was involved in a motor vehicle accident with the Applicant who was similarly subject to the operation of the Workers Compensation Act, R.S.A. 2000, c. W-15 (the “Act”). In the result, the Applicant was barred by operation of s. 23(1) of the Act from pursuing a civil action commenced against the Respondent for losses occasioned in the accident.

Administrative law – Workers compensation – Statutory provisions – Worker – Definition – Immunity from civil actions – Judicial review application – Administrative decisions

Barker v. Sowa, [2003] A.J. No. 1276, Alberta Court of Queen’s Bench, October 16, 2003, Bielby J.

The Applicant applied for judicial review of the decision of the Appeals Commission dated August 7, 2002. In the decision, the Appeals Commission held that the Respondent was a worker as defined by the Act when he was involved in a motor vehicle accident with the Applicant who also was a worker at the time. The August 7th decision confirmed that the Respondent was immune from civil action for recovery of damages relative to the Plaintiff’s injuries in the accident pursuant to section 23(1) of the Act.

The Applicant filed for judicial review of the Appeals Commission’s decision on the following grounds: 1) the Appeals commission erred in finding that the Respondent did not bear the burden of proof, 2) the Appeals commission erred in failing to draw an adverse credibility ruling on the viva voce evidence, and 3) in improperly delegating its decision making duty by adopting the investigator’s opinion.

On Appeal the Court held that there is no authority for the proposition that the Respondent bears the burden of proof and even if the Respondent had borne the burden, the decision would have been the same. In regard to findings on credibility the court stated that conclusions of fact drawn by the Appeals Commission are not amenable to judicial review. The court would not replace the Appeals Commission’s findings on credibility with its own, nor would they impose an adverse inference from inconsistencies that were found in the evidence of the witnesses that testified at the hearing.

With respect to the issue that the Appeals Commission improperly delegated its duty to make a decision by way of adopting the opinion of an investigator, the court held that there was nothing on the record that would indicate that the Appeals Commission did not make their own decision. The written reasons contained a careful analysis of the evidence and the conclusions were drawn from the evidence which demonstrated that the Appeals Commission arrived at its conclusions on its own.

The court held that the Appeals Commission made no error which could have affected its decision. In the result, the Applicant was barred by operation of s. 23(1) of the Act from pursuing a civil action for losses occasioned in the accident.

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