A man who worked in mining operations of Xstrata Canada Corporation (“Xstrata”) between 1979 and 1996 (“LeBlanc”) was successful on appeal from a decision of the Appeal Tribunal of the Workplace Health, Safety and Compensation Commission (“Appeals Tribunal”) for reimbursement of medical treatment related to heavy metals detected in his blood

24. July 2012 0

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Policies – Workers Compensation – Benefits – Hearings – Fairness  – Conduct of hearings – Independent expert – Judicial review – Witnesses – Evidence – Procedural requirements and fairness

LeBlanc v. New Brunswick (Workplace Health, Safety and Compensation Commission), [2012] N.B.J. No. 199, 2012 NBCA 49, New Brunswick Court of Appeal, June 7, 2012, J.E. Drapeau C.J.N.B., M.E.L. Larlee and J.C.M. Richard JJ.A.

Between 1979 and 1996 LeBlanc worked at Xstrata’s mining operations. He left his employment and later, in 2006, his blood test showed heavy metals levels and he underwent chelation treatments. LeBlanc brought an application to the Workplace Health, Safety and Compensation Commission to be reimbursed for chelation-related expenses arguing that he had heavy metal toxicity as a result of working in the mine. His claim was rejected and he appealed to the Appeals Tribunal. Prior to the hearing before the Appeals Tribunal, LeBlanc’s workers’ advocate advised counsel for Xstrata that a Ms. Inka Milewski, a Science Advisor and Director of Health Watch for the Conservation Council of New Brunswick, would be assisting in cross-examination of the Commission’s medical expert. Xstrata opposed the suggestion that Ms. Milewski be involved in the cross-examination of the expert. They wrote a letter which stated, in part, “we have no intention of allowing Dr. Siu to be questioned by [the workers’ advocate’s] witness.”

The Workers’ Advocate wrote to the Appeals Tribunal again in November 2009 indicating that Ms. Milewski would attend as a witness and that her role would include asking questions of expert witnesses and providing answers or clarification to the panel. On appeal the Court noted that Ms. Milewski was being proffered not as a witness, but to provide assistance as an advocate for LeBlanc.

Xstrata then took the position that LeBlanc was limited to one advocate per proceeding. However, there was no policy or procedure of the Appeals Tribunal purporting to limit who could be heard as a party’s representative. March 2010 Appeals Tribunal Guidelines stated that a party to an appeal may be represented by an advocate or agent. The Workers’ Advocate herself made it plain that she did not have the background to properly interpret the medical evidence or the medical documents in the file.

The hearing before the Appeals Tribunal was informal. Witnesses were not sworn and their testimony was not regulated by the typical structure seen in a Court of Law. LeBlanc’s argument on appeal, however went to the unfairness of the process that did not allow him to be represented by an advocate of his choice.

On appeal, the Court agreed. They held that there was no rule of law or procedure limiting LeBlanc to only one advocate at the hearing. In all of the circumstances, he was denied a fair hearing due to the Appeals Tribunal’s decision not to allow Ms. Milewski to question Dr. Siu. Dr. Siu had testified that LeBlanc never suffered from lead poisoning. The medical expert, Dr. Siu, was viewed by the Commission as an “independent expert”. It is the Appeals Tribunal, rather than the employer, that is vested with the power to determine process. Since the Workers’ Advocate was overwhelmed by the technical/scientific evidence offered by the Commission and Xstrata, the playing field was not level. Rather than deciding to decline Ms. Milewski the opportunity to cross-examine Dr. Siu, the Appeals Tribunal had never formally ruled on the request, made prior to the hearing. “It should have been abundantly clear to the Appeals Tribunal that Dr. Siu’s testimony was potentially determinative of the issues, and that neither Mr. LeBlanc nor the Workers’ Advocate was capable of mounting any serious challenge to its reliability”.

Where a case before the Appeals Tribunal involves an unrepresented, unsophisticated claimant litigating against both the Commission and the employer, hearings must be conducted such that the playing field appears level to the fair-minded observer, thereby allowing for a decision on the merits alone.

The appeal was allowed and the Appeals Tribunal decision set aside with a new hearing ordered before a differently constituted panel.

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