The Appellant (the Workers’ Compensation Board) successfully appealed a decision of the Workers’ Compensation Appeal Tribunal (“WCAT”). The WCAT had allowed a claim for compensation made by the Respondent (Ms. Cormier) but its decision was found to disclose a reasonable apprehension of bias.

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Workers Compensation – Benefits – Judicial review – Bias – Evidence – Standard of review – Correctness

Prince Edward Island (Workers’ Compensation Board) v. Cormier, [2011] P.E.I.J. No. 2, 2011 PECA 1, Prince Edward Island Court of Appeal, January 7, 2011, D.H. Jenkins C.J.P.E.I., J.A. McQuaid and M.M. Murphy JJ.A.

The Respondent (Ms. Cormier) filed a claim with the Appellant, the Workers’ Compensation Board of Prince Edward Island (the “Board”). She had been employed as a pastoral care associate. She claimed that she suffered from various health issues (including headaches, nausea, and ringing in her ears), which she attributed to what is often referred to as “sick building syndrome”.

Ms. Cormier’s claim for compensation was initially denied and it was also denied after an internal reconsideration. She appealed the decision to the Workers’ Compensation Appeal Tribunal (“WCAT”). Partway through the hearing, Ms. Cormier attempted to introduce new evidence and the WCAT referred the claim back to the Board to consider the new evidence. The Board concluded the evidence was not new and returned the matter to WCAT. WCAT overturned the findings of the Board and concluded that Ms. Cormier’s health problems arose from the workplace and that she was entitled to receive compensation. The Board sought leave to appeal the decision of WCAT before the Court of Appeal. Leave was granted on the ground alleging that there was a reasonable apprehension of bias.

The Board took issue with the passage in the WCAT’s decision wherein it stated: “…whereas physicians in the employ of the Board could reasonably be seen to have a slight bent towards a finding that might help their employer…” The Board asserted that this passage demonstrates a reasonable apprehension of bias. The Court of Appeal reviewed this argument and noted that the appropriate standard of review was correctness.

The Board argued that the impugned statement indicated that the WCAT was predisposed to a particular result and the inclusion of the statement is sufficient to indicate that predisposition. Ms. Cormier argued that the decision was well reasoned and that the entire decision must be reviewed contextually; one statement is not sufficient to set aside the decision. She also argued that the matter of the objectivity of the physicians was an issue at the hearing.

The majority of the Court of Appeal found that the statement did give rise to a reasonable apprehension of bias. The majority reviewed the evidence and found there was no evidence before the WCAT that would permit it to come to the conclusion that the doctors employed by the Board were doing anything other than objectively evaluating the worker’s claim from a medical standpoint. Therefore, the majority felt that the statement constituted stereotyping. In other words, the majority found that a reasonable and informed person would conclude that the impugned statement demonstrated a propensity to prejudge the matter and a predisposition to arrive at a certain result. This was particularly the case because the statement was included at a part in the decision where the WCAT was weighing the primary evidence.

The dissenting judge found that the impugned statement needed to be reviewed with regard to the entire reasons of the WCAT. There were various other passages in the decision where the WCAT weighed the evidence of the various physicians and indicated the full reasoning of the WCAT.

The dissenting judge also noted that Ms. Cormier’s family doctor had seen and/or examined her 21 times compared to the Board’s medical advisors who had never examined her. He felt this was a significant factor in why the WCAT preferred the evidence of her family doctor over the evidence of the Board’s medical advisors. In other words, there was clearly a basis outlined in the decision for why the evidence of her family physician was preferred. The impugned statement was not significant given the entire context of the decision. He held that the appeal ought to be dismissed.

In the result, the appeal was allowed and the WCAT’s decision was set aside and the matter remitted to the WCAT for a re-hearing by a different panel.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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