SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Alberta) DOUGLAS MARTIN

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1 BETWEEN: and SUPREME COURT OF CANADA (On Appeal from the Court of Appeal of Alberta) DOUGLAS MARTIN Court File No APPELLANT (Respondent) WORKERS' COMPENSATION BOARD OF ALBERTA, APPEALS COMMISSION FOR ALBERTA WORKERS' COMPENSATON AND ATTORNEY GENERAL OF CANADA RESPONDENTS (Appellants) FACTUM OF RESPONDENT APPEALS COMMISSION FOR ALBERTA WORKERS' COMPENSATION ApPEALS COMMISSION FOR ALBERTA WORKERS' COMPENSATION Appeals Commission 901, Street Edmonton, AB T5J 3L7 Telephone: (780) Facsimile: (780) Sandra Hermiston Counsel for the Respondent, Appeals Commission for Alberta Workers' Compensation GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, Ontario KIP 1 C3 Telephone: (613) Facsimile: (613) henry.brown@gowlings.com Henry S. Brown, Q.C. Ottawa Agents for the Counsel for the Respondent, Appeals Commission for Alberta Workers' Compensation

2 ii RAVEN, CAMERON, BALLANTYNE & YAZBECKLLP Barristers and Solicitors Laurier Avenne, West Ottawa, ON KIP 5Z9 Telephone: (613) Facsimile: (613) Andrew Raven Andrew Astritis Amanda Montague-Reinholdt Counsel for the Appellant WORKERS' COMPENSATlONBOARD OF ALBERTA th Street, 11th Floor Edmonton, AB T5K 1 G5 Telephone: (780) Facsimile: (780) douglas.mah@wcb.ab.ca Douglas R. Mah, Q.c. Counsel for the Respondent, Workers' Compensation Board of Alberta SUPREME ADVOCACY LLP Barristers and Solicitors 397 Gladstone Avenue, Suitel Ottawa, ON K2P OY9 Telephone: (613) Facsimile: (613) mfmajor@supremeadvocacy.ca Marie-France Major Ottawa Agent for the Counsel for the Respondent, Workers' Compensation Board of Alberta ATTORNEY GENERAL OF CANADA 234 Wellington Street, Room 1251 Ottawa, ON KIA OH8 Telephone: (613) Facsimile: (613) John S. Tyhnrst Counsel for the Respondent, Attorney General of Canada ATTORNEY GENERAL OF CANADA Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, ON KIA OH8 Telephone: (613) Facsimile: (613) christopher.rupar@justice.gc.ca Christopher M. Rupar Ottawa Agents for the Counsel for the Respondent, Attorney General for Canada

3 iii WORKERS. COMPENSA non BOARD OF BRITISH COLUMBIA 6951 Westminster Highway Richmond, BC V7C I C6 Telephone: (604) Facsimile: (604) laurel.courtenay@worksafebc.com Laurel M. COUlienay Scott A. Nielsen Counsel for the Intervener, Workers' Compensation Board of British Columbia GoWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, Ontario KIP IC3 Telephone: (613) Facsimile: (613) henry.brown@gowlings.com Henry S. Brown, Q.C. Ottawa Agents for the Counsel for the Intervener, Workers' Compensation Board of British Colnmbia VIGNEAULT THIBODEAU BERGERON Barristers and Solicitors , rue Bourdages Quebec, QC GIK 7E2 Telephone: (418) Ext: 5002 Facsimile: (418) pierre-michel.lajeunesse@csst.qc.ca Pierre Michel Lajeunesse Lucille Giard Counsel for the Intervener, Commission de la sante et de la securite du travail BERGERON,GAUDREAU Barristers and Solicitors 167, rue Notre Dame de l'ile Gatineau, QC J8X 3T3 Telephone: (819) Facsimile: (819) bergeron.gaudreau@qc.aira.com Richard Gaudreau Agents for the Intervener, Commission de la sante et de la seeurite du travail STEWART MCKELVEY Barristers and Solicitors Upper Water Street Halifax, NS B3J 2X2 Telephone: (902) Facsimile: (902) rrogers@stewartmckelvey.com Roderick (Rory) H. Rogers, Q.C. Madeleine F. Hearns Counsel for the Intervener, Workers' Compensation Board of Nova Scotia SUPREME ADVOCACY LLP Barristers and Solicitors 397 Gladstone Avenue, Suite 1 Ottawa, ON K2P OY9 Telephone: (613) Facsimile: (613) emeehan@supremeadvocacy.ca Eugene Meehan, Q.C. Ottawa Agent for the Counsel for the Intervener, Workers' Compensation Board of Nova Scotia

4 TABLE OF CONTENTS Part I - Statement of Facts... 1 A. Overview... 1 B. Facts... 1 B. Judicial History... 1 Part II - Points In Issue... 3 Pm'! III - Argument... 4 A. Appeals Commission's Participation....4 B. Standard of Review....4 A Review of the Jurisprudence....4 Default Standard/Step Reasonableness... 9 C. Conclusion Part IV - Costs Part V - Order Requested Part VI - Table of Authorities... 13

5 PART 1-STATEMENT OF FACTS A. Overview 1. The Appeals Commission is participating in this appeal with respect to the issue of the appropriate standard of review. This case is unusual in that the Alberta Court of Appeal decided it was unnecessary to make an explicit determination of the appropriate standard of review because it agreed with the Commission's decision. The Appeals Commission submits that it is important to determine the appropriate standard of review in every case, even when a court agrees with the decision. Skipping this step has the potential to undermine the framework and purpose of judicial review and fail to appreciate and apply the principled approach developed by this Court. B. Facts 2. The facts are outlined in the Appeals Commission's decision. C. Judicial History 3. The Appellant Douglas Martin appeals from the August 29, 2011 decision of the Alberta Court of Appeal which restored the Appeals Commission's decision of March 9, 2009 denying his claim for workers' compensation benefits. 4. The Appeals Commission conducted an in person hearing on July 24, Subsequent to the oral hearing, additional written arguments were sought from the WCB and the other parties to the appeal. After the submissions were shared and rebuttals received, the Appeals Commission issued its 22 page decision on March 9, denying Mr. Martin's appeal? 5. The Honourable Justice V. O. Ouellette of the Alberta Court of Queen's Bench overturned the Appeals Commission's decision. After receiving comprehensive written 1 Appeals Commission Decision paragraphs 4 6 [AR. pp. 15 & 16] 2 Appeals Commission Decision paragraph 34 [AR, p. 35J

6 2 submissions and hearing extensive oral arguments, the Court detennined that it was appropriate to give oral reasons for its decision immediately following the special chambers application. 6. The Alberta Court of Appeal allowed the appeal and restored the decision of the Appeals Commission on August 29, 2012.

7 3 PART II - POINTS IN ISSUE 7. The Appeals Commission submits this appeal raises the following issues: A. What is the correct standard of review? and B. What is the proper application of that standard?

8 4 PART III - ARGUMENT A. The Appeals Commission's Participation 8. The Appeals Commission's participation in this appeal is limited to the issue of standard of review. The Commission takes no position regarding the reasonableness or correctness of its decision. B. Standard of Review 9. In Dunsmuir 3, this Court established a two-step process when deciding an application for judicial review. First, the court must examine the jurisprudence to determine whether there is an established standard of review. The second step is only engaged if the jurisprudence has not yet satisfactorily established the appropriate standard of review for the type of question raised in the application before the court. As set out below, the Appeals Commission submits that the jurisprudence has established a standard of review of reasonableness for the questions before this Court. A Review of Jurisprudence 10. Standards of review are established based on the issue under appeal. The issue set out in the Appeals Commission's decision is whether Mr. Martin had an acceptable claim for workers' compensation benefits.4 The Appeals Commission submits the jurisprudence establishes reasonableness as the appropriate standard of review for issues of entitlement to compensation. [44] Dunsmuir provided guidance as to how a standard of review might be determined summarily without requiring a full standard of review analysis. One method was to identify the nature of the question at issue, which would normally or, I say, presumptively determine the standard of review. Contrary to the view of my colleague in 3 Dunsmuir v. New Brunswick, [2008] S.C.l. No 9, 2008 SCC 9 at paragraph 62 [B.A. Tab 6] 4 Appeals Commission Decision, paragraph 3 [A.R. p. 15]

9 5 para. 97, I would not wish to retreat to the application of a full standard of review analysis where it can be determined summarily.5 II. Dunsmuir 6 confirmed that deference "will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have a particular familiarity" (at para. 54). 12. In ATA7, this Court outlined the types of questions which might result in a departure from the standard of reasonableness even when a tribunal is interpreting its home statute or a statute closely connect to its function: constitutional questions questions of law of central importance to the legal system as a whole and outside the adjudicator's expertise questions regarding the jurisdictional lines between tribunals true questions of jurisdiction or vires 13. The question before this Court is not constitutional, nor is it a question regarding the jurisdictional lines between two tribunals. The question is not of central importance to the legal system, but instead, it is specific to the workers' compensation regime. There is no dispute that the Appeals Commission has exclusive jurisdiction to hear and decide workers' compensation appeals in Alberta, including claims made by employees of the Government of Canada. 14. In 1997 this Court recognized that eligibility for compensation is a matter that "relates intimately to the purposes and structure of the workers' compensation system" and further that eligibility for compensation is, without question, within the WCB's exclusive jurisdiction Essentially, then, the question before the Board on an application under s. 168 is whether the plaintiff is eligible for compensation, and whether the defendant is immune from suit by virtue of being a contributor to the workers' compensation system. In both cases, the Board is 5 Alberta (l'1formation and Privacy Commissioner) v. Alberta Teacher's Association, 2011 S.c.I. No. 61; [2011] AC.S. No. 61 (ATA) at paragraph 44, [B.A. Tab 1J 6 Dunsmuir, supra, at paragraph 54 [RA. Tab 6] 'ATA, supra, at paragraph 30, [BA Tab 1 J 8 Pasiechnyk v. Saskatchewan (Workers' Compensation Board), [1997J 2 SCR 890 at paragraphs [BA Tab 10J

10 6 passing on a matter that relates intimately to the purposes and structure of the workers' compensation system, and that is expressed in terms whose meaning is inseparable from their meaning elsewhere in the Act. 42 There can be no question that the question of eligibility for compensation is one that is within the Board's exclusive jurisdiction. It is also clear upon examination that the issue of whether an action is barred is equally within the Board's exclusive jurisdiction. It would undermine the purposes of the scheme for the courts to assume jurisdiction over that question. It could lead to one of the problems that workers' compensation was created to solve, namely, the problem of employers becoming insolvent as a result of high damage awards. The system of collective liability was created to prevent that, and thus to ensure security of compensation to the workers. Individual immunity is the necessary corollary to collective liability. The interposition of the courts could also lead to uncertainty about recovery. Anglin 1. recognized this in Dominion Canners, where he suggested that the purpose of the Act reserving to the Board exclusive jurisdiction over the question of whether an action was barred was to avoid a worker's being completely denied recovery should the Board determine that he or she was not entitled to compensation but the court determine that he was. 43 In view ofthe above, the issue as to whether the proposed action is barred is one that is committed to the Board for final decision and is not reviewable unless it is patently unreasonable. 15. Gahir 9 is leading case in Alberta regarding the standard of review applicable to workers' compensation matters. As instructed by this Court in Dunsmuir, the Alberta Court of Appeal reviewed the jurisprudence regarding the standard of review applicable to decisions of the Appeals Commission and provided a summary of the established standards: findings offact, credibility and mixed fact and law are reviewed for reasonableness interpretations of workers' compensation policies, and the application of policies to particular fact situations are reviewed for reasonableness interpretation of sections of the Act lying within the expertise of the Board or the Appeals Commission are reviewed for reasonableness, as is the application of that law to particular fact situations true jurisdictional issues are reviewed for correctness. 16. As pointed out in Gahir lo, the "Schumaker"]] and Chauvet 12 cases established that questions of entitlement to compensation fall into the category of interpretation of workers' 9 Gahir v. Appeals Commission for the Alberta Workers' Compensation, and The Workers' Compensation Board of Alberta, 2009 ABCA 59, at paragraph 13 (Gahir), [B.A. Tab 7] 10 Gahir, supra,at paragraph 13 [B.A. Tab 7] 11 Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Appeals Commission), 2005 ABCA 235 (Schumaker) at paragraphs [B.A. Tab 2] 12 Chauvet v. Alberta (Workers' Compensation BoardAppeals Commission) 2007 ABCA 155 at paragraphs 20 and 28

11 7 compensation policies and are subject to the reasonableness standard. The Alberta Court of Appeal has subsequently confirmed this approach in Watson: [16] Whether a particular employee is entitled to compensation, and the level ofthat compensation, generally falls into the standard of reasonableness: Alberta (Workers' Compensation Board) v Alberta (Workers' Compensation Appeals Commission), 2005 ABCA 235,371 AR 62 at paras Even if this Court determines that the question before the Appeals Commission is a pure question of law because it involves statutory interpretation, jurisprudence indicates that the appropriate standard of review is reasonableness. In Holmberg, where the question was the interpretation of a phrase in the Workers' Compensation Act involving the ability of a worker to earn wages, the Alberta Court of Appeal applied the reasonableness standard: [II] Although that question involves the interpretation of a statute, this Court has determined that the standard of review in these circumstances would nonetlleless be reasonableness if the meaning to be attributed to that section lay within the expertise of the AC: Gahir v. Alberta (Workers' Compensation Appeals Commission), para. 13,448 A.R In Buckle/ 5 the Alberta Court of Appeal characterized the question as a question oflaw and applied the reasonableness standard to the Commission's decision. The Court commented iliat this level of deference recognized the proper role of the Appeals Commission in the workers' compensation system. The question before the Appeals Commission in Buckley was ilie role of fault in removing a worker from protection from civil action. [BA Tab 5] 13 Watson v. Alberta (Workers' Compensation Board), 2011 ABCA 127, 502 AR 207 at paragraph 16 [BA Tab II] 14 Holmberg v. Alberta (Workers' Compensation, Appeals Commission), 2011 ABCA 173 at paragraph 11 [B.A Tab 8] 15 Buckley v. Entz, 2007 ABCA 7 at paragraphs 33 and 34 [B.A. Tab 4]

12 8 Default Standard of Review/Step Two 19. In ATA 16 this Court created the rebuttable presumption of reasonableness as the applicable standard of review for questions involving: where the question involves interpretation of a provision of its home statute and falls squarely within the tribunal's expertise, it is presumed to be a question of statutory interpretation that is subject to deference (see paragraphs 32, 34 and 39) in order for correctness to apply, the question must be of "central importance to the legal system" AND "outside the tribunal's specialized expertise" (see paragraph 46) 20. In the event that this Court determines that the jurisprudence does not establish an appropriate standard for this question and the default standard of review does not apply to this question, Dunsmuir directs a contextual analysis: [64] The analysis must be contextual. As mentioned above, it is dependent on tbe application of a number of relevant factors, including: (1) tbe presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of tbe factors, as some of them may be determinative in tbe application of tbe reasonableness standard in a specific case. 21. The Commission is protected by a full privative clause (except for questions of law or jurisdiction) which generally signals a more deferential standard of review. As stated above, this has resulted in the most deferential standard of review being applied by the Alberta Court of Appeal for all questions except those truly jurisdictional in nature (Davick, Schumaker, Buckley and Chauvet). 22. In Davick17, the Court of Appeal concluded that the Appeals Commission is central to the workers' compensation system and as such deference to its decisions was warranted: 74 The Appeals Commission is not required to undertake a polycentric analysis, taking into account broad policy objectives, or the public interest; rather, it routinely resolves disputes among workers, employers and the WeB. Nevertheless, one of the \6 ATA. supra, at paragraphs [B.A. Tab 1] 17 Alberta (Workers' Compensation Board) v. Appeals Commission, 2005 ABCA 276 at paragraph (Davick), [B.A. Tab 3]

13 9 principal purposes of the WCB Act is to provide a system of compensation independent of court involvement, as recognized by the reviewing judge at paras The Appeals Commission's role is central to this purpose, indicating deference to the Appeals Commission's decision. In addition, the WCB Act is properly described as a policy-laden statute, further suggesting deference: Voice at para. 18; Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Appeals Commission), 2005 ABCA 235 at para The question before the Appeals Connnission was whether a worker was entitled to receive workers' compensation benefits. The Appeals Connnission considered the applicable legislation, policy and facts in order to make this determination. 24. In Chauvet l8, the Alberta Court of Appeal recognized the Connnission as an expert tribunal: 51 Regarding the relative expertise of the AC as compared to the courts, the AC deals exclusively with workers' compensation matters, and regularly applies the Board's policies. The AC normally has the advantage of hearing from the parties (and not just their counsel) via their evidence. Additionally, with the passage of time, the AC has established a body of expertise based on its experience. On the other hand, workers' compensation cases represent only a small part of the courts' work. Moreover, the courts' ability to make factual assessments is limited, given that the judicial review and appeal proceedings under the Act are conducted solely on the basis of a review of the record. The AC's relative expertise also suggests deference. Reasonableness 25. The following comments are offered by the Supreme Court of Canada in Dunsmuir 19 : 47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to 18 Chauvet, supra, at paragraph 51 [BA Tab 5] 19 Dunsmuir, supra, at paragraph 47 [RA. Tab 6]

14 10 outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [emphasis added] 26. Merging the two deferential standards into "reasonableness" is not to be tal(en as an invitation for greater judicial scrutiny and the concept of deference must be sufficiently explored. 2o Deference, therefore: "is both an attitude of the court and a requirement of the law of judicial review" (paragraph 48) "imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" (paragraph 48) "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime" (paragraph 49) "requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, and for the different roles of the courts and administrative bodies within the Canadian constitutional system" (paragraph 49) 27. In Newfoundland Nursel], this Court offered insight into the evaluation of decisions in light of the reasonableness standard: deference to administrative tribunal decision-making requires "a respectful attention to the reasons offered or which could be offered in support of a decision" (para. 12)... For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal's proximity to the dispute, its expertise, etc., then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. the Court should exhibit a "respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist" (para. 13) "Dunsmuir. supra, at paragraph 48 and 49 [EA Tab Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador Treasury Board, 2011 sec 62 at paragraphs [EA Tab 9]

15 11 "adequacy" of reasons is not a stand-alone basis for quashing a decision, instead the reasons must be read together with the outcome (para. 14) courts must show "respect for the decision-making process of adjudicative bodies with regard to both the facts and the law" Dunsmuir, at para. 48) (para. 15) "a decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion" (para. 16) "In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met." (para. 16) C. Conclusion 28. The Appeals Commission submits that the correct standard of review in this matter is reasonableness.

16 12 PART IV - COSTS 29. The Appeals Commission seeks no costs and requests that no costs be assessed against it. PART V - ORDER REQUESTED 30. The Appeals Commission makes no submissions regarding the Order Requested. ALL OF WHICH IS RESPECTFULLY SUBMITTED. Dated at Edmonton, Alberta this 26 day of August, Sandra Hermiston General Counsel, Appeals Commission for Alberta Workers' Compensation

17 13 PART VI TABLE OF AUTHORITIES PARA Cases 1. Alberta Teachers' Association v. Alberta (Information and Privacy Commissioner), [2011]3 SCR , 12, Alberta (Workers' Compensation Board) v. Alberta (Workers' Compensation Appeals Commission), 2005 ABCA , Alberta (Workers' Compensation Board) v. Appeals Commission, 2005 ABCA , Buckley v. Entz, 2007 ABCA ,21 5. Chauvet v. Alberta (Workers' Compensation Board Appeals Commission) 2007 ABCA ,21,24 6. Dunsmuir v. New Brunswick, [2008]1 SCR , 11,20,25,26 7. Gahir v. Alberta (Workers' Compensation, Appeals Commission), 2009 ABCA ,16 8. Holmberg v. Alberta (Alberta Workers' Compensation, Appeals Commission), 2011 ABCA Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador Treasury Board, 2011 SCC Pasiechnykv. Saskatchewan (Workers' Compensation Board), [1997]2 SCR Watson v. Alberta (Workers' Compensation Board), 2011 ABCA