The Applicant worker employed in the coal mines of Cape Breton Development Corporation (“Devco”), a federal corporation, applied for workers compensation based on loss of lung function due to occupational disease. The Workers’ Compensation Board refused his claims for want of evidence of loss of lung function. In dismissing the appeals, the Workers’ Compensation Appeals Tribunal held the worker to the civil standard of proof, because he was a federal employee claiming under the Government Employees Compensation Act (“GECA”). The Nova Scotia Court of Appeal held that the matter should be remitted to the Workers’ Compensation Appeals Tribunal for review of all the relevant evidence in light of the provisions of the Nova Scotia Workers’ Compensation Act.

Administrative law – Workers compensation – Benefits – Statutory provisions – Federal and provincial legislation – Government employees – Judicial review – Administrative decisions – Compliance with legislation – Evidence – Jurisdiction

McLellan v. Nova Scotia (Workers’ Compensation Appeals Tribunal), [2003] N.S.J. No. 365, Nova Scotia Court of Appeal, October 14, 2003, Glube C.J.N.S., Freeman and Saunders JJ.A.

This was an appeal from a decision of the Workers’ Compensation Appeals Tribunal dismissing the Appellant’s appeals from decisions of hearing officers of the Workers’ Compensation Board who rejected his claims for compensation, one based on coal worker’s pneumoconiosis and loss of lung function, the other based on occupational disease.

The Appellant worked as a coal miner for Devco, a Crown corporation, for more than 20 years. He began experiencing breathing difficulties in the 90s and by 1994 was complaining of increased shortness of breath. Provincial workers’ compensation legislation applies to employees of federal departments such as Devco by virtue of the Government Employees Compensation Act, R.S.C. 1985, c. G-8 which provides compensation to workers injured in workplace accidents.

Section 12 of the Nova Scotia Workers Compensation Act, S.N.S. 1994-95, c.10, the “automatic assumption” provision, provides “[a]ny coal miner who has worked at the face of a mine or in similar conditions for twenty years or more and who suffers from a loss of lung function will be compensated according to his disability”.

According to the legislation, causation was presumed but the coal worker employed by the federal government still had the onus of proving that his condition was the result of his occupational disease and not some other cause. In reviewing the evidence, the tribunal held that on a balance of probabilities the coal worker had not demonstrated that he was disabled by his employment-related condition and therefore not entitled to compensation.

The matter was appealed to the Nova Scotia Court of Appeal who first noted that the Tribunal held the federal worker to the civil standard of proof without the benefit of doubt available to him under Provincial legislation. The court held that this was a misinterpretation of the GECA and an error of law going to the Tribunal’s jurisdiction. The court followed its recent decision in Cape Breton Development Corporation v. Estate of James Morrison, 2003 NSCA 103 which found that all provisions of the Nova Scotia workers’ compensation scheme which do not conflict with GECA apply to all federal workers in the province. The court held that the federal government intended federal workers under GECA to be governed by the same conditions as provided by the law of the province where they are usually employed, even when those conditions vary from one province to another. The Tribunal committed an error in law by holding the Appellant to a rigid civil standard of proof and failing to give the worker the benefit of the doubt that he was entitled to under Nova Scotia law. In the result, the court allowed the appeal and remitted the matter to the Tribunal for a review of all relevant evidence in light of the provisions of the Nova Scotia Workers’ Compensation Act.

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