Administrative law – Workers compensation – Benefits – Procedural fairness – Statutory provisions – Privative clauses – Decisions of administrative tribunals – Workers Compensation Boards – Hearings – Rules of evidence – Fresh evidence – Admissibility – Jurisdiction – Judicial review – Standard of review – Patent unreasonableness
Alberta (Workers’ Compensation Board) v. Appeals Commission,  A.J. No. 1012, Alberta Court of Appeal, August 25, 2005, Picard, Fruman and Ritter JJ.A.
An injured worker had appealed the denial of his claim by the Workers’ Compensation Board (“WCB”) through the internal appeals process. This concluded with a hearing before the Appeals Commission which allowed his appeal and ordered the WCB to pay benefits. The Appeals Commission had relied on new medical evidence presented at the hearing.
The WCB applied to the Court of Queen’s Bench to appeal the decision, pursuant to section 13.4(1) of the Workers’ Compensation Act which established an appeal to that Court from a decision of the Appeals Commission on a question of law or jurisdiction. The reviewing judge dismissed the WCB’s appeal, characterizing the WCB’s grounds as questions of mixed fact and law, which did not fall under the statutory right of appeal in section 13.4(1). The reviewing judge then proceeded with the application on the basis of judicial review and concluded that the Appeals Commission’s decision was not patently unreasonable.
The WCB appealed, arguing that (1) the reviewing judge had erred in failing to characterize one of the questions before him as a question of law or jurisdiction, (2) the reviewing judge had erred in finding that questions of mixed fact and law do not fall within the statutory right of appeal in section 13.4(1) of the Act, and (3) the reviewing judge had applied the incorrect standard of review. The Court of Appeal’s standard of review for each of these alleged errors was correctness.
On the first ground of appeal, the WCB argued that the reviewing judge had erred in his characterization of the question of whether the Appeals Commission had failed to conduct proper inquiries with respect to the new medical evidence that had been advanced at the hearing. The evidence was presented for the first time at the Appeals Commission hearing. The WCB chose not to attend the hearing, despite having received notice of the doctor’s attendance, so the doctor’s expert qualifications were not directly challenged at the hearing, nor was evidence provided to contest the validity and reliability of the evidence. The WCB conceded that the doctor’s evidence was relevant and did not complain about lack of notice or violation of any other aspect of the right to be heard. The WCB alleged a right to have the Appeals Commission qualify the expert and inquire further into the reliability and scientific validity of brain-mapping. The Court found that this did not fit within the established parameters of procedural fairness or natural justice. The issue was not arguable and did not raise an appealable question of law or jurisdiction.
The WCB also argued that the Appeals Commission erred in failing to apply the test for admission of expert evidence as outlined by the Supreme Court of Canada in R. v. Mohan,  2 S.C.R. 9. The WCB alleged that the Appeals Commission had failed to properly qualify the expert, as required by Mohan. The Court held that this argument departed from established principles of administrative law, as strict rules of evidence do not apply to administrative tribunals, unless expressly prescribed. An administrative tribunal is seldom, if ever, required to apply strict rules relating to the admissibility of evidence, such as the Mohan test. It followed that the Appeals Commission’s failure to formerly qualify the doctor to give expert evidence did not give rise to an arguable question of law or jurisdiction. In the administrative context, the arguable issue involved the weight the Appeals Commission placed on the expert evidence, which the reviewing judge characterized as a question of mixed fact and law. The question here was highly fact-intensive, attracting a more deferential standard of review.
Regarding the second ground of appeal, whether questions of mixed fact and law do not automatically fall within section 13.4(1) of the Act, the Court held that questions of mixed fact and law are not appealable unless there is an extricable legal question. There was no such question in this case. The Appeals Commission’s decision was protected by the full privative clause in section 13.1 of the Act, signalling a more deferential standard of review.
The Court of Appeal considered the standard of review to apply to the Appeals Commission’s decision. The presence of a fact-intensive question protected by a full privative clause, the Appeals Commission’s experience and particular expertise in evaluating medical evidence and the Act’s purpose of providing an efficient and rapid process of compensation independent of court involvement, indicate that a high level of deference should be accorded to the Appeals Commission’s decision, in this case, on this question. The Court held that the reviewing judge had correctly selected the patent unreasonableness standard of review. The WCB did not take issue with the reviewing judge’s application of that standard.
The worker’s former employer made its first appearance in this matter before the reviewing judge and raised an additional ground, alleging that it did not receive adequate notice of the new evidence to be introduced by the expert at the Appeals Commission hearing. The employer had received a hearing notice indicating that the doctor would be in attendance; however, the employer chose not to appear at the hearing, nor did it indicate any interest in attending or inquiring about the doctor’s evidence. The employer argued that it ought to have received notice of the nature of the opinion that would be expressed by the expert, as well as a copy of his report. The Court noted that the employer has a more limited interest in the process than the WCB or the worker. The Court held that the Appeals Commission was not remiss in failing to provide the employer with the report and the reviewing judge did not err in finding sufficient notice had been given.
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