The Court dismissed an application for judicial review of the Appeals Commission’s decision to overturn a decision of the Workers Compensation Board and the finding that a worker’s psychiatric illness was caused by his employment and was compensable

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Psychological injury employment related – Judicial review – Compliance with legislation – Privative clauses – Standard of review – Reasonableness simpliciter

Alberta (Workers’ Compensation Board) v. Appeals Commission, [2005] A.J. No. 233, Alberta Court of Queen’s Bench, March 7, 2005, Moen J.

The Respondent, Mr. St. Martin, had been exposed to asbestos in the course of his employment, as had his wife when she laundered his clothes. She had died from a disease caused by exposure to asbestos in 1996, following a four-year illness. His daughter died later in the same year. Mr. St. Martin underwent a number of tests and, in late 1996, a WCB doctor stated that he was a definite risk for developing the same disease which had caused his wife’s death. In February 1997, the WCB accepted responsibility for Mr. St. Martin’s asbestos-related pleural disease. He suffered from headaches and other symptoms for which his doctors prescribed medications, and had also been receiving counselling from a psychologist. In April 1997, Mr. St. Martin’s physician referred him to a psychiatrist.

Mr. St. Martin made a claim to the WCB for his psychiatric illness, saying it was also caused by his asbestos-related disease. The WCB did not accept that the depression was related to his work. When they denied his claim, Mr. St. Martin appealed to the Appeals Commission who overturned the WCB decision, finding that the psychiatric illness was caused by Mr. St. Martin’s employment and was compensable. This decision arose out of a limited appeal provision in the Workers Compensation Act.

The Court considered the appropriate standard of review and applied the functional and pragmatic analysis.

The Court first considered the presence or absence of a privative clause.

Until 2002, the courts had consistently found that decisions of the Commission were subject to a review by the courts on a standard of patent unreasonableness. However, in 2002, the legislature amended the Act by providing for an appeal of any decision of the Commission to the Court of Queen’s Bench on a question of law or jurisdiction. It also removed the WCB’s previously held right to require the Commission to re-hear matters. The new appeal provisions, found in section 13.4 of the Act, provide that if the Court sets aside a decision of the Commission, the Court must refer the matter back to the Commission for reconsideration in accordance with any directions the Court considers appropriate.

The Court noted that the Supreme Court of Canada has applied the functional and pragmatic analysis in many cases where the provision in question was a statutory appeal. In the case of the Workers Compensation Act, there was a privative clause which had been offset by the addition of an appeal provision. The Court noted that decisions of the Court of Queen’s Bench since the amendment had been divided on whether the appropriate standard of review continues to be patent unreasonableness or whether the amendment signals that the legislature wants the standard to be lower.

The Court concluded that the appeals clause found in the Act would militate in favour of a standard of review of reasonableness simpliciter and against a standard of review of patent unreasonableness. In some cases, but not here, it could indicate correctness.

Taking all the factors into consideration, the Court found that the appropriate standard of review to be applied was reasonableness simpliciter. The Court reviewed the Supreme Court of Canada’s statements on that standard from Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, and Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247.

The Court proceeded to apply that standard to the Commission’s decision. In order for a worker to be entitled to compensation under the Workers Compensation Act, a two-step analysis as set out in WCB policy 02-01 is required:

1. the accident must arise out of the employment; and
2. the accident must have occurred in the course of employment.

The WCB argued that the Commission had found that the psychiatric illness had arisen solely as a result of the grief that Mr. St. Martin suffered from the death of his wife and daughter, while the Commission argued that it took consideration of all of the factors contributing to the psychiatric illness of Mr. St. Martin. The Court found that the WCB had already determined that there was an accident arising from Mr. St. Martin’s employment, that is, that he was exposed to asbestos and that injury resulted from that exposure. The Commission only had to determine if the psychiatric illness arose from that exposure.

In reviewing the evidence, the Court found that the Commission had linked Mr. St. Martin’s psychiatric illness to many other factors related to his work, besides the death of his wife, that compounded his problems and left him permanently disabled. It was clear from the evidence before the Commission that Mr. St. Martin was justifiably fearful that he would develop the cancer associated with his asbestos exposure from which his wife had died. The Commission had found that the death of Mr. St. Martin’s wife, because it highlighted his own possible fate, was a significant work-related stressor that lasted for a long time and directly contributed to his illness.

In the result, WCB had not positively shown that the Commission’s decision, taken as a whole, was unreasonable. Even a searching review of the statutory provision and the policies of the WCB did not reveal an error of such proportions as to be unreasonable. The conclusion of the Commission was tenable, given the language in the underlying policy documents.

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