The Saskatchewan Workers’ Compensation Board decision declining jurisdiction to adjudicate a claim made by an employee of the University of Saskatchewan against the University for harassment was quashed by the Court of Appeal and the matter referred back to the Board. It was incumbent on the Board to examine the grievance advanced by way of arbitration and determine whether and to what extent that claim was a claim for a workplace injury that, if established, would entitle the grievor to compensation under the Workers’ Compensation Act, S.S. 1979, c. W-17.1. The Board needed to consider not only the fact that the grievor’s claim under the Act was denied, but the basis upon which it was denied. The question is whether the injury claimed falls within the jurisdiction of the Board, not whether the claimant was successful in proving the claim to the Board.

24. March 2009 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Jurisdiction – Labour law – Arbitration – Judicial review – Compliance with legislation – Standard of review – Reasonableness simpliciter

University of Saskatchewan v. Workers’ Compensation Board of Saskatchewan, [2009] S.J. No. 76, 2009 SKCA 17, Saskatchewan Court of Appeal, February 6, 2009, J. Klebuc C.J.S., J.G. Lane and G.A. Smith JJ.A.

This was an appeal from the judgment of a chambers judge of the Court of Queen’s Bench, dismissing an application for judicial review relating to a decision of the respondent, the Saskatchewan Workers’ Compensation Board (the “Board”). The appellant, the University of Saskatchewan, had sought a ruling from the Board pursuant to section 168 of the Workers’ Compensation Act, 1979, S.S. 1979, c. W-17.1, as to whether a grievance brought by the respondent, the Canadian Union of Public Employees, Local 1975 (the “Union”) was barred because it raised a claim that fell within the exclusive jurisdiction of the Board.

The respondent, Pamela Bowman, was a veterinary technician employed by the University and a member of the Union. The Union filed a grievance against the University claiming that Ms. Bowman had been the subject of personal harassment in the workplace. The Union claimed, on Ms. Bowman’s behalf, compensation for lost wages, aggravated and punitive damages. It also sought an apology and formal and substantial discipline of managers found to be responsible as well as censure of the dean. Ms. Bowman also filed a claim for compensation from the Board for injuries arising from the alleged harassment.

On the appeal, the appellant argued that the chambers judge erred in finding the standard of review of the decision of the Board was patent unreasonableness, and that he erred in his application of the appropriate standard of review to the Board’s decision. It was the employer’s position that the Board had, and exercised, exclusive jurisdiction over the questions of whether Ms. Bowman had suffered an injury as a result of personal harassment in the workplace, that the claim was rejected by the Board on the basis that neither the alleged harassment nor causation of her depression by her subjective perception of harassment had been proven. 1Thus, the employer argued, the grievance of Ms. Bowman which advanced essentially the same claim was barred under the Workers’ Compensation Act.

The Court of Appeal held that if the Board was satisfied that the claim asserted in the action was one that was not in relation to a workplace injury compensable under the Act, the proper decision would have been to rule that the action was not barred, rather than to refuse to rule on the matter. To refuse to rule on the matter, in the Court’s opinion, was to wrongfully refuse to exercise the exclusive jurisdiction conferred on the Board by the statute, which provided that any party to an action may apply to the Board for adjudication and determination of the question of whether the action is one barred by the Act.

The Court rejected the Board’s argument that there was no question properly before the Board because a grievance arbitration was not an “action”. The Court held that the term “action” was broad enough to encompass remedies sought for a workplace injury by way of the grievance procedure and arbitration.

Notwithstanding these comments, the Court held that another reading of the Board’s ruling was that it intended to dismiss the application before it on the basis of a conclusion that the grievance related to an injury that did not fall within the jurisdiction of the Workers’ Compensation Board or the Act. The Court held that the question of whether a claimed injury is one that is compensable under the Act is one that clearly falls within the Board’s jurisdiction, and its determination on that issue is reviewable on the standard of reasonableness.

In considering the reasonableness of the Board’s decision denying Ms. Bowman’s claim for WCB benefits in relation to a workplace injury, the Court noted that the Board did not provide reasons for the denial. In addition, the Board’s account of the earlier adjudication, while not strictly inaccurate, was incomplete and ambiguous. The question for the Board was whether and to what extent the grievance before the labour arbitrator raised claims that, if established, constituted claims for workplace injury compensable under the Act. This question was not addressed by the Board, which wrongly concluded that its own dismissal of the griever’s WCB claim was conclusive of the issue. Accordingly, the Court quashed the decision of the Board and referred the matter back to it to be determined in accordance with the law.

To stay current with the new case law and emerging legal issues in this area, subscribe here.