Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Discretion of court – Workers compensation – Benefits – Housing – Interpretation of legislation – Judicial review – Witnesses – Member of Legislative Assembly – Bias – Waiver of claim for bias
Fundy Linen Service Inc. v. New Brunswick (Workplace Health, Safety and Compensation Commission),  N.B.J. No. 41, New Brunswick Court of Appeal, February 26, 2009, W.S. Turnbull, J.Z. Daigle and J.T. Robertson JJ.A.
An employee of Fundy Linen sustained a work-related injury to her leg that impaired her mobility. The Commission provided the worker with $25,000.00 for her permanent physical impairment and paid her long-term disability benefits. The Commission found that the employee’s claim for financial assistance to purchase a barrier-free residence was beyond the Commission’s scope of responsibility. The employee successfully appealed that decision to the Appeals Tribunal, which directed the Commission to provide the employee with assistance in searching for alternative accommodation that could provide her with a barrier-free residence. Fundy Linen appealed this decision arguing that the Tribunal lacked the authority to provide housing assistance for workers on long-term disability payments and that the Tribunal’s decision was voidable on the basis of Tribunal bias. A local member of the Legislative Assembly made submissions on behalf of the employee before the Appeals Tribunal. The local member had informed the Tribunal that he had been a former member of the Tribunal and that he had earlier informed the president of the Commission that he could overrule the Commission’s decision. The local member then testified that the president said there was no doubt that the Panel would look at this very seriously and probably accept it. The Commission argued that since the employer did not participate in the hearing before the Tribunal, the employer waived its right to raise the bias and interpretative issues.
The Court of Appeal held that the doctrine of waiver should not apply to the allegation of Tribunal bias. Although Fundy Linen knew that the local member would testify before the Tribunal, Fundy Linen could not anticipate that the member would act as the employee’s advocate. This was a proper case for the Court to exercise its residual discretion to deal with the merits of the bias allegation, notwithstanding the application of the waiver doctrine. The local member’s conduct before the Commission and the Tribunal raised the appearance of improper interference with the administrative decision-making process. As the Tribunal lacked structural independence, it was impermissible for members of the executive branch of government or of elected members from the governing party to assume the role of advocate before the Tribunal on behalf of a constituent who is seeking to gain access to a public benefit. These elected members of the Legislative Assembly should not testify before a tribunal unless a case for exceptional circumstances could be made out to the Tribunal’s satisfaction. Here, the local member assumed the dual role of advocate and witness. His testimony went much further and reinforced the need for rules that restricted the participation of local members in tribunal hearings. The testimony of the local member made the Tribunal vulnerable to allegations that it might have been influenced in deciding as it did.
In the result, the Appeal was allowed and the matter was remitted to the Commission for reconsideration.
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