Administrative law – Workers compensation – Benefits – Psychological injury – employment related – Test – Decisions of administrative tribunals – Evidenciary issues – Judicial review – Standard of review – Patent unreasonableness
Canada Post Corp. v. Nova Scotia Workers’ Compensation Appeals Tribunal,  N.S.J. No. 105, Nova Scotia Court of Appeal, March 16, 2004, Roscoe, Chipman and Cromwell JJ.a.
Myatt was found to have suffered a compensable psychiatric injury in 1998 after being physically and verbally threatened by a co-worker. He returned to work at Canada Post after 7 months but found that he was unable to continue due to work-related stress including health and safety concerns. Myatt filed a new Report of Accident in January of 2001 indicating an injury described as mental stress. The Workers’ Compensation Board refused to recognize the claim, and this finding was upheld by a Hearing Officer who presided over a three day oral hearing including viva voce evidence from five witnesses.
The Court noted that WCAT used a different test than the Hearing Officer for determining whether the claim was for a personal injury arising out of and in the course of Myatt’s employment.
Both tests required that findings of fact be made concerning the nature of the workplace. The Hearing Officer ultimately held that it was Myatt’s own self-perception and pre-existing obsessive compulsive disorder that led to the stress problem. WCAT, on a paper review of that decision, determined that a reasonable person in Myatt’s position would find the accumulation of events stressful.
Canada Post argued that WCAT erred in law by failing to defer to the Hearing Officer’s findings of fact, and by using the wrong test for recognition of the stress claim and the wrong test (or no test at all) for determining that the claimant had suffered a recurrent injury. The Court declined to address the second and third arguments, and answered only the standard of review/deference issue.
The appropriate standard of review to be used by WCAT on appeal from a decision of a Hearing Officer was set out in Doward v. Nova Scotia (Workers’ Compensation Board) (1997), 160 N.S.R. (2d) 22;  N.S.J. No. 171 (Q.L.) (C.A.) and Metropolitan Entertainment Group v. Durnford (2000), 188 N.S.R. (2d) 318;  N.S.J. No. 343 (Q.L.) (C.A.).
Reviewing the Doward and Durnford decisions, the Court stated:
…WCAT proceedings are of a hybrid nature, combining features of appeals de novo with reviews of the record; WCAT is to exercise an independent adjudicative function; WCAT’s deference to findings of Hearing Officers is defined and limited by its statutory mandate and its hybrid role; courts should be wary of curtailing that independent adjudicative function by imposing a rule of deference not contemplated by the legislature; and, that WCAT owes deference to a Hearing Officer’s findings of fact based on the assessment of oral testimony particularly where WCAT conducts a paper review and receives no additional evidence beyond that before the Hearing Officer. (para. 21)
The Court found that WCAT had erred in law, by failing to direct itself to the appropriate standard of review of the Hearing Officer’s decision.
It is apparent from WCAT’s reasons that it afforded the Hearing Officer’s findings of fact based on oral testimony no deference of any kind – and this notwithstanding that WCAT conducted a paper review only and had no new evidence before it. WCAT expressed the view that it preferred the testimony of some witnesses to that of others even though the Hearing Officer had reached the opposite conclusion. WCAT gave no reasons for doing so and indeed did not advert to any issue relating to the standard of review. This was an error of law.
The appeal was allowed and the matter was remitted back to WCAT for a new hearing.
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