The Court of Appeal set aside a decision of the Workers’ Compensation Commission, which had denied the appellant pension benefits, following her estranged husband’s death in a work-related accident, on the basis that the appellant and her child were not “dependants”. The Court of Appeal found that the Commission had failed to apply the correct test with respect to whether the appellant and her child were “dependents”.

27. October 2009 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Dependant – definition – Judicial review – Standard of review – Correctness – Reasonableness simpliciter – Interpretation of legislation – Evidence – Test

Elgie v. Alberta (Workers’ Compensation Appeals Commission), [2009] A.J. No. 899, Alberta Court of Appeal, August 25, 2009, C.M. Conrad, K.G. Ritter and J.Watson JJ.A.

In 2003, the appellant’s estranged husband died in a work-related accident. The appellant applied to the Workers’ Compensation Board for pension benefits for her and her child. Her child was the worker’s step-child, who had turned 18 three months after the worker’s death. The parties had separated approximately three years prior to the worker’s death. The appellant had sought support for herself and her children from her husband since the separation and, at the time of his death, was in the process of advancing those rights in a divorce action.

The Board denied the appellant’s application on the basis that neither she nor her son was a “dependent” as described in s. 1(1)(h) of the Workers Compensation Act. That decision was upheld by both the Decision Review Body and the Workers’ Compensation Appeals Commission, which found that while the appellant and her child were members of the worker’s family, there was no evidence of actual dependency on the worker’s earnings at the time of death. The appellant’s appeal and application for judicial review were dismissed by the Court of Queen’s Bench, on the basis that the Commission’s conclusion was not patently unreasonable.

The appellant appealed the decision of the Court of Queen’s Bench. The Court of Appeal first considered what was the correct standard of review. The reviewing judge applied the standards of patent unreasonableness and reasonableness simpliciter, but did so prior to the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9. The Court of Appeal proceeded to make its own determination of the proper standard with respect to each of the issues raised by the appellant. The Court of Appeal found that the first issue, regarding the interpretation of “dependent” under s. 1(1)(h) of the Act, was reviewable on the correctness standard. The second issue, being whether the Commission had erred in law by finding it did not have to ask whether the worker stood in loco parentis to the appellant’s son, was also reviewable on the correctness standard. Finally, the third issue regarding whether the Commission had considered irrelevant evidence was reviewable under the reasonableness standard.

The Court of Appeal proceeded to consider whether the Commission had erred in its interpretation of s. 1(1)(h) of the Act. The Court held that the principles of statutory interpretation favoured interpreting the Act broadly and consistent with coverage. The Court found that the Commission had erred in its interpretation of this subsection, by focusing on time of death (when the worker was not providing contributions to the appellant or her son), which took far too narrow an approach to coverage and failed to properly examine and interpret the language of the subsection. The language of the subsection is broad enough to protect those entitled to contributions from the worker’s earnings for the ordinary necessaries of life, even though they are not being received. It means that where a family member is legally entitled to contributions from a worker towards the ordinary necessaries of life, but death has intervened before the process of recovering those contributions has begun or been completed, the member of the family will still be a dependent under the Act. The Commission was required to consider whether the appellant and her son had been receiving contributions towards the necessaries of life at the time of the accident, or whether either were legally entitled to receive such contributions and would have, but for the death, received the same. Its failure to do so was both incorrect and unreasonable.

The Commission had also erred by adopting too strict a definition of the “ordinary necessaries of life”. It relied, in large part, on the fact that at the time of death, the appellant was able to support herself without the worker’s health care premiums and without social assistance. Necessaries, for the purpose of the Act, go beyond what is needed for existence and would include contributions required to maintain the lifestyle to which the worker had, or would be required, to contribute. The Commission’s deployment of an incorrect legal definition led it to an incorrect and unreasonable conclusion.

The Court also found the Commission had erred in law by deciding it did not have to conduct an enquiry into whether the deceased worker stood in loco parentis to the appellant’s youngest child. One of the questions the Commission was required to ask in determining dependency was whether either the appellant or her son would have been entitled to contributions. To make this assessment in the child’s case, it would be necessary to determine whether the worker stood in loco parentis, or “stood in the place of a parent” or such other definition upon which entitlement to child support under either the Divorce Act or the Family Law Act would rely.

Finally, the Court considered whether the Commission made a reviewable error by taking into account the effect that granting compensation to the appellant and her son would have upon the compensation being paid to the worker’s natural son, and by considering whether the appellant had applied for social assistance in determining she was not a dependent. There was nothing in the Commission’s reasons to suggest it took the former matter into account in trying to decide whether the appellant and her son qualified for compensation under the Act. However, the Commission had erred by using the fact that the appellant had not applied for social assistance as evidence contributing to the conclusion she was not a dependent. The Commission’s conclusion that this was relevant was neither intelligible nor within the range of acceptable outcomes that could be defended “in respect of the facts and law”, thus rendering it unreasonable.

In the result, the Commission’s decision was set aside and the appeal remitted to the Commission for proper disposition in accordance with the Court’s reasons.

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