S.C.C. No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) DOUGLAS MARTIN. - and -

Transcription

1 S.C.C. No.: IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL) BETWEEN: DOUGLAS MARTIN - and - APPELLANT (Respondent) THE WORKERS COMPENSATION BOARD OF ALBERTA, APPEALS COMMISSION FOR THE WORKERS COMPENSATION and DEPARTMENT OF JUSTICE CANADA RESPONDENTS (Appellants) FACTUM OF THE RESPONDENT (THE WORKERS COMPENSATION BOARD OF ALBERTA, RESPONDENT) (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) WORKERS' COMPENSATION BOARD OF ALBERTA th Street, 11th Floor Edmonton, Alberta, T5K 1G5 Douglas R. Mah, Q.C. Tel.: (403) Fax: (403) douglas.mah@wcb.ab.ca Counsel for the Respondent, The Workers Compensation Board SUPREME ADVOCACY LLP 397 Gladstone Avenue, Suite 100 Ottawa, Ontario K2P 0Y9 Eugene Meehan, Q.C. Marie-France Major Tel: Fax: emeehan@supremeadvocacy.ca mfmajor@supremeadvocacy.ca Agent for Counsel for the Respondent, The Workers Compensation Board

2 RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP Laurier Ave West Ottawa, Ontario, K1P 5Z9 Andrew Raven Andrew Astritis Amanda Montague-Reinholdt Tel.: (613) Fax: (613) Counsel for the Appellant, Douglas Martin APPEALS COMMISSION FOR ALBERTA WORKERS COMPENSATION 901, Street Edmonton, AB T5J 3L7 Sandra Hermiston Tel: Fax: Counsel for the Respondent, Appeals Commission for Alberta Workers Compensation ATTORNEY GENERAL OF CANADA Street N.W. Edmonton, Alberta, T5H 0E7 Bruce F. Hughson Tel.: (780) Fax: (780) Counsel for the Respondent, Department of Justice GOWLING LAFLEUR HENDERSON LLP 160 Elgin Street, Suite 2600 Ottawa, ON K1P 1C3 Henry S. Brown, Q.C. Tel: Fax: Agent for the Respondent, Appeals Commission for Alberta Workers Compensation ATTORNEY GENERAL OF CANADA Bank of Canada Building - East Tower 234 Wellington Street, Room 1212 Ottawa, Ontario, K1A 0H8 Christopher M. Rupar Tel.: (613) Fax: (613) christopher.rupar@justice.gc.ca Ottawa Agent for Counsel for Respondent, Department of Justice

3 i TABLE OF CONTENTS Part I Statement of Facts...1 A. Overview...1 B. The Workers Compensation System in Alberta and GECA...2 C. Martin s Claim...3 D. Initial Adjudication, Review and Appeal...4 E. Judicial History...8 The Court of Queen s Bench of Alberta...8 The Court of Appeal of Alberta...9 Part II Points In Issue...11 Part III Statement of Argument...12 A. Standard of Review...12 The Default Standard is Reasonableness...12 Questions of Law Do Not Necessarily Result in a Correctness Standard...14 B. The legal justification for Policy applying to GECA claims...17 Purpose of GECA...17 Adjudication policies support the objectives of workers compensation statutes, including GECA...19 Properly construed, the determination of compensation under s. 4(3) of GECA also consists of policy-making...22 The word conditions in s. 4(2) of GECA also means conditions of eligibility...24 Eligibility requirements under GECA same as under the WCA...25 Policy is consistent with GECA...26 C. How the Excessive or Unusual criterion makes sense & accords with law...27 The Policy informs whether an accident has occurred or whether an accident arises out of (was caused by) employment...27 Why an objective standard of causation is necessary...29 The law supports only an objective standard...30 Why Charter considerations do not apply in this case...34 D. Conclusion...36 Part IV Costs...37 Part V Order Requested...37 Part VI Table of Authorities...38 Part VII Statutes and Other Enactments...39

4 1 PART 1 STATEMENT OF FACTS A. Overview 1. Under the Government Employees Compensation Act 1 ( GECA ), the responsibility for adjudicating the workers' compensation claims of federal employees lies with the decisionmaking bodies created by provincial workers compensation legislation. 2. The Appellant Douglas Martin ( Martin ), a federal employee employed by Parks Canada in Banff, Alberta, made a disability claim based on mental stress to the Workers Compensation Board of Alberta ( the WCB ). Martin objects to the application of the WCB s mental stress policy to his claim. He contends that only the provisions of GECA itself, and not the policy, can be applied to adjudicate his entitlement to compensation. 3. The WCB s interest in this case relates to its polycentric role as administrator of the workers compensation system in Alberta. This role requires the WCB to ensure that the system remains viable and sustainable, balances the interests of workers and employers and promotes the public interest objectives described in the Meredith Report. 2 In that capacity, the WCB articulates and applies policies to guide the operation of almost all aspects of the system. These policies function together with the statutes to form a complex interconnected system of rights and obligations. The polices are often aimed at putting meaning and definition to statutory words and concepts and creating limits and parameters so that expectations can be established for all users of the system. 4. This case is not, as Martin states, about which statute applies to the exclusion of the other GECA or the provincial workers compensation statute in determining Martin s entitlement. 3 Since Martin is a GECA employee, it is plain and obvious that GECA applies. Rather this case is about whether provincially made policy concerning mental stress claims can inform the adjudication of those claims when they arise under GECA. The issue is important to the WCB. 1 RSC 1985, c. G-5. [Book of Authorities ( BA ) Tab 36] 2 Sir William Ralph Meredith, Final Report, October 31, [BA Tab 31] 3 Appellant s Factum, paras. 29 & 31.

5 2 Since the administration of GECA is part of its mandate, the WCB needs to know whether it is required to operate one unified program of workers compensation in the province or two separate programs, one provincial and one federal. 5. Martin specifically takes umbrage with the policy requirement that an acceptable claim for chronic onset stress must be precipitated by workplace events that are excessive or unusual, which he argues is not permitted by GECA. The WCB s position is that the excessive or unusual standard provides an objective test of causation that embodies the prevailing law in Canada. Furthermore, the WCB takes the view that the policy is not only consistent with GECA, it is authorized by and promotes the objectives of GECA. 6. The WCB has nearly 100 years of experience and expertise in adjudicating workers compensation claims, 4 including mental stress claims and claims under GECA. Workers compensation, as a discipline, seeks to resolve in a clear, rationale and evidence-based way the complex issues of how human health is affected by the workplace. That experience and expertise has been distilled into the principles found in WCB policy. The choice in this appeal is between allowing GECA claims to be adjudicated with reference to a set of rational, articulated and comprehensive principles or instead forcing GECA claims to adjudicated in a vacuum, without regard to any form of guidance beyond the bare words of the statute. 7. Moreover, this case involves the decision of an administrative tribunal (the Appeals Commission) interpreting and applying an enabling or closely-connected statute on a question squarely within its jurisdiction. It is well settled from recent jurisprudence emanating from this Honourable Court that decisions of this nature deserve deference. B. The Workers Compensation System in Alberta and GECA 8. The WCB administers the provincial workers compensation program in Alberta under the provisions of the Workers Compensation Act, 5 ( the WCA ). The WCB also administers the 4 Alberta s first workers compensation legislation, based on the Meredith model, was enacted in See The Workmen s Compensation Act, 1918, Chapter 5, assented to April 13, 1918, extracts (ss. 1-30) [BA Tab 37]. 5 RSA 2000, c. W-15 [BA Tab 38]

6 3 workers compensation program for persons covered under GECA who work in Alberta, Northwest Territories, Nunavut and Yukon Territory Under the authority of s. 6 of the WCA, the Board of Directors of the WCB has enacted a series of policies to inform decision-makers in the system, participants in the workers compensation program (claimants and employers) and the general public of the rules and practices applicable to decision-making in workers compensation in Alberta. 7 These policies are binding on all decision-makers in the system, including the Appeals Commission, 8 and are published on the WCB s website A claimant who disagrees with an adjudication decision may request that the decision be reviewed by the WCB s review body under s. 46 of the WCA (the review body is called the Dispute Resolution and Decision Review Body or DRDRB). If the claimant is in turn dissatisfied with the DRDRB s decision, that decision may be appealed to the external and independent Appeals Commission under s of the WCA. By virtue of s. 4(3) of GECA, the same review and appeal system is available to GECA claimants. 11. There is no policy-making function in GECA similar to s. 6 of the WCA. Furthermore, there are no adjudication, review or appeal entities created by GECA. These functions all devolve to the provincial bodies created by the WCA through s. 4(3) of GECA. C. Martin s Claim 12. Martin had been employed as a park warden with Parks Canada Agency ( the employer ) for over 30 years. For a period of time starting in the 1990s, Martin was a proponent of park wardens being permitted to carry sidearms as a health and safety measure Over the years his involvement in the firearms issue led to several interactions with his employer of a labour relations nature GECA, s. 5. [BA Tab 36] 7 WCA, s. 6. [BA Tab 38] 8 WCA, s. 13.2(6)(b). [BA Tab 38] 9 WCB Policies and Information Manual General Policies, Claimant and Health Care Services Policies, Employer Services Policies Table of Contents [[BA Tab 33] 10 DRDRB decision at p. 5. [AR, p 12]

7 4 14. On December 8, 2006 Martin received a letter from his employer s head office requesting that he comply with an access to information request. The receipt of this letter, although a normal and ordinary event in Martin s job, triggered Martin s stress reaction. Martin went on stress leave as of December 23, 2006 upon the recommendation of his physician. It is this stress condition that is the basis of Martin s workers compensation claim Martin s treating psychiatrist, Dr. Dumka, in a March 14, 2007 letter in support of the claim provided a working diagnosis of post traumatic stress secondary to the behaviors of the administration towards him. 13 No inquiry appears to have been made at any adjudicative level with regard to the adequacy of Dr. Dumka s diagnosis. D. Initial Adjudication, Review and Appeal 16. WCB Policy contains the following four-part test and commentary for causation of an acceptable workers compensation claim for chronic onset stress: As with any other claim, the WCB investigates the causation to determine whether the claim is acceptable. Claims for this type of injury are eligible for compensation only when all of the following criteria are met: there is a confirmed psychological or psychiatric diagnosis as described in the DSM, the work-related events or stressors are the predominant cause of the injury; predominant cause means the prevailing, strongest, chief, or main cause of the chronic onset stress, the work-related events are excessive or unusual in comparison to the normal pressures and tensions experienced by the average worker in a similar occupation, and there is objective confirmation of the events. In addition to the duties reasonably expected by the nature of the worker s occupation, normal pressures and tensions include, for example, interpersonal relations and conflicts, health and safety concerns, union issues, and routine labour relations actions taken by the employer, including workload and 11 Initial adjudication letter of May 1, 2007 at pp. 1 & 2. [AR, pp. 2-3] 12 Appeals Commission decision at paras. 27, 28 & 30. [AR, pp. 30, 33 & 34] 13 Assessment of Dr. M. Dumka dated March 14, [AR, p. 152]

8 5 deadlines, work evaluation, performance management (discipline), transfers, changes in job duties, lay-offs, demotions, terminations, and reorganizations, to which all workers may be subject from time to time The WCB s initial adjudication letter of May 1, 2007 indicated, inter alia, the following: Martin had been involved in a series of labour relations interactions with his employer with respect to the firearms issue over the course of years. During Martin s 33 year tenure as a park warden he had not experienced any traumatic (in the sense of life-threatening) events while on the job. The facts of Martin s claim failed to meet the criteria in the WCB s policy for either traumatic stress or chronic onset stress and, in consequence, the claim could not be accepted Martin advanced his workers compensation claim to the WCB s internal review body, the DRDRB. The initial adjudication had addressed entitlement under the headings of both traumatic stress and chronic onset stress. However, the DRDRB reviewer noted that the claim was based on a series of events occurring over a period of time and not a single traumatic event, and therefore confined himself to considering entitlement under the heading of chronic onset stress. He noted that the receipt of the December 8, 2006 letter immediately preceded Martin s stress leave. Like the initial adjudicator, the DRDRB reviewer found that the policy requirements for chronic onset had not been met and therefore the claim could not be accepted The DRDRB decision was then appealed to the external Appeals Commission. As part of the submission to the tribunal, Martin also argued that the WCB policy concerning chronic onset stress should not be applied in determining Martin s entitlement and that entitlement should only be determined with reference to ss. 2 and 4(1) of GECA. Martin, the employer (as represented by Justice Canada) and the WCB were all requested to make further written submissions on this issue and did so WCB Policies and Information Manual, Policy 03-01, Part II, Application 6, Question 10 [BA Tab 35], referred to in this Respondent s Factum as Policy or the Policy. 15 Initial adjudication letter of May 1, 2007 at pp [AR, pp. 2-6] 16 DRDRB decision at pp. 1-6 [AR, pp. 8-13] 17 Appeals Commission Decision dated March 9, 2009 at paras. 4, 5 & 6 [AR, pp ]. The paragraph numbers shown in square parentheses indicate the paragraph number in the decision from which the statement is drawn.

9 6 20. Sections 2, 4(1) & (2) of GECA provide: 2. In this Act, accident includes a wilful and an intentional act, not being the act of the employee, and a fortuitous event occasioned by a physical or natural cause (1) Subject to this Act, compensation shall be paid to (a) an employee who (i) is caused personal injury by an accident arising out of and in the course of his employment, or (ii) is disabled by reason of an industrial disease due to the nature of the employment; and (b) the dependants of an employee whose death results from such an accident or industrial disease. (2) The employee or the dependants referred to in subsection (1) are, notwithstanding the nature or class of the employment, entitled to receive compensation at the same rate and under the same conditions as are provided under the law of the province where the employee is usually employed respecting compensation for workmen and the dependants of deceased workmen, employed by persons other than Her Majesty, who (a) are caused personal injuries in that province by accidents arising out of and in the course of their employment; or (b) are disabled in that province by reason of industrial diseases due to the nature of their employment. 21. The Appeals Commission rendered a 22 page written decision on March 9, that stated, inter alia, the following: With respect to the legal issue of whether the WCB policy applies On the authority of the 1998 ONCA decision Canada Post Corporation v. Smith, the purpose of GECA is to provide compensation for federal workers injured by an accident in accordance with entitlements available in the province they work. [paragraph 21.1] 18 Appeals Commission Decision [AR, pp ]

10 7 There are no material differences between the definition of accident in the WCA and the definition of accident in GECA and therefore the policy concerning acceptance of chronic onset stress can apply to both. [paragraphs 21, 21.2 & 21.3] Under s. 4(2) of GECA, a person who falls within s. 4(1) is entitled to receive compensation at the same rate and under the same conditions as provided under provincial law. The term under the same rate refers to the calculation of benefits. This is distinct from the phrase under the same conditions which includes eligibility or entitlement criteria under policy. [paragraph 21.4] According to Canada Post Corporation, The various provincial laws, not the GECA, set out the relevant boundaries of the compensation schemes for injured workers. [paragraph 21.4] In consequence, GECA authorizes decision-makers to apply the WCB chronic stress policy (Policy 03-01) to Martin s claim. [paragraph 22] With respect to the merits of the claim under Policy There was a confirmed psychological or psychiatric diagnosis of a stress related illness as defined in the DSM, namely post traumatic stress secondary to administration behavior. [paragraph 26] 19 While recognizing that there had been a long series of interactions between Martin and his employer with respect to the firearms issue, the predominant cause of the stress condition was the receipt of the December 8, 2006 letter requesting compliance with an access to information request. [paragraph 28] 19 As noted earlier, no inquiry was ever made into the adequacy of the diagnosis. The diagnosis is curious because (i) there is no diagnostic code of in the DSM IV, and (ii) the description of Martin s traumatic event does not match the definition of traumatic event in the Diagnostic Criteria for Posttraumatic Stress Disorder in the DSM IV. The definition requires an event in which both the following are present: (i) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and (ii) the person s response involved intense fear, helplessness or horror. Examples of such events in include military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, being taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disaster, severe automobile accidents, or being diagnosed with a life-threatening illness. Refer to American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, or DSM IV-TR [BA Tab 30]. In mentioning the number 300.0, Dr. Dumka may have been referring to the Alberta Health Diagnostic Codes which attributes a code number of to Anxiety states generally under the heading 300 Neurotic disorders. Refer to Alberta Health, Claims Assessment, Alberta Health Diagnostic Codes, p. 64 found online at [BA Tab 29].

11 8 A request to comply with an access to information request is a normal occurrence in that workplace and accordingly does not constitute the excessive or unusual events required under the chronic stress policy. Rather, as an event, it falls within normal pressures and tensions that do not qualify under the policy. [paragraph 30] Martin s subjective perception of the letter as a threat to his well-being is not objectively borne out. [paragraph 31] In the result, Martin s case satisfied only two of the required four policy requirements and therefore the claim could not be accepted. [paragraph 33] E. Judicial History The Court of Queen s Bench of Alberta 22. Martin commenced a judicial review and an appeal under s of the WCA to challenge the decision of the Appeals Commission. The matter was heard on March 9, 2010 with the Honourable Justice V. O. Ouellette overturning the Appeals Commission and ordering a new hearing essentially for these reasons: The adjudicative scheme under GECA requires the decision-maker to engage in two separate steps. First, the decision-maker must decide with reference only to s. 4(1)(a)(i) of GECA whether there was an accident that entitles the claimant to compensation. Having so found, the decision-maker s second step is to determine the amount of compensation payable with reference to s. 4(2) of GECA. The third and fourth policy criteria for chronic onset stress in Alberta, requiring the work-related events to be excessive or unusual in comparison to normally experienced pressures and tensions and that there be objective confirmation of those events, are add-ons or additional hurdles that are not contemplated in s. 4(1)(a)(i) of GECA. On a standard of correctness, it was therefore wrong for the Appeals Commission to require the latter two policy criteria be satisfied and the decision was accordingly overturned Decision of the Honourable Justice V. O. Oullette, March 9, 2010 [AR, pp ]

12 9 The Court of Appeal of Alberta 23. The decision of Oullette J was then appealed by the WCB to the Court of Appeal of Alberta. A panel consisting of Fraser CJA and Watson and McDonald JJA heard the appeal on September 13, 2011 and released a written decision on August 29, In allowing the appeal and restoring the decision of the Appeals Commission, the majority Court of Appeal (Watson JA and Fraser CJA) stated, inter alia, that: It was unnecessary to decide whether the standard of review is reasonableness or correctness as the Court of Appeal agreed with the Appeals Commission s conclusions concerning the interplay of GECA and the WCA and the application of WCB policy in the specific context of Martin s compensation claim. [paragraph 31] There is no conflict between the WCA and GECA as to the criteria that must be satisfied for Martin s claim to be acceptable. Both statutes apply harmoniously with the same result in this case and the WCB s chronic stress policy does not intrude on federal jurisdiction to define eligibility under s. 4(1)(a)(i) of GECA. [paragraph 31] Applying the policy does not involve unacceptable inequality of treatment under s. 15 of the Charter. [paragraph 31] In any event, the issue was not properly before the Court. [paragraph 34] On either a reasonableness or correctness standard, there is no basis to interfere with the Appeals Commission s finding that the concept of accident in the two statutes, for the purposes of this case, are not in conflict. [paragraph 35] The Appeals Commission is undoubtedly very familiar with both the WCA and GECA. [paragraph 30]. The decision that the two definitions are effectively the same for the purposes of assessing psychological injury is a decision by [an] expert Commission. [paragraph 54] 21 Reasons for Judgment of the Court of Appeal of Alberta (Fraser CJA, Watson and McDonald, JJA) dated August 29, 2012 ( Court of Appeal Decision ). [AR, pp ] The paragraph numbers shown in square parentheses indicate the paragraph number in the Decision from which the statement is drawn.

13 10 All parties accepted the Appeals Commission s finding that Martin s condition (posttraumatic stress disorder) was triggered by a specific workplace event, namely the receipt by him of the December 8, 2006 letter. [paragraph 35] The concepts of accident and causation should not be conflated. [paragraph 40] In particular, s. 4(1)(a)(i) says nothing about how causation is to be determined and does not preclude causation criteria that events must be excessive or unusual or require objective confirmation. [paragraph 59] The four criteria contained in the policy are really aimed at establishing factual causation. [paragraph 78 & 80] Martin s approach results in a strictly subjective test for causation of psychological injury, which ignores elements of proof of causation. [paragraph 79] The objective approach embodied in the Alberta policy is actually reflective of the common law relating to causation for psychological injury under GECA. [paragraphs76 & 80] In the interest of promoting co-operative federalism, a defining feature of the Canadian legal structure, the interaction of federal and provincial legislation should be made workable by Courts consistently with the intent of both levels of legislature. [paragraphs 42, 50 & 83] 24. In a separate judgment concurring in the result, McDonald JA allowed the appeal on a more fundamental basis, namely that Martin failed to meet the threshold entitlement criteria contained in GECA itself. [paragraphs 85, 86, 97 & 98]

14 11 PART II POINTS IN ISSUE 25. In response to the issues raised by Martin, the WCB submits that: A. On the determination by the Appeals Commission that Policy applies to Martin s claim, the standard of review is reasonableness (Appellant s Issue1); B. Policy applies in the adjudication of Martin s case as it supports the purpose and objectives of GECA and is authorized by and consistent with GECA (Appellant s Issue 2); C. The excessive or unusual criterion in Policy is an objective test that informs the causation analysis for chronic stress injuries and embodies the law in Canada (Appellant s Issue 3); 26. The WCB makes no submissions on whether the facts of Martin s case satisfy the four requirements of Policy (Appellant s Issue 4).

15 12 PART III STATEMENT OF ARGUMENT A. Standard of Review The default standard is reasonableness 27. Recent and compelling authority from this Court has established that when a Court considers the decision of an administrative tribunal interpreting or applying its home statute, it is presumed that the appropriate standard of review is reasonableness. By way of example, this Court has stated: The standard of reasonableness normally prevails where the tribunal s decision raises issues of fact, discretion or policy; involves inextricably intertwined legal and factual issues; or relates to the interpretation of the tribunal s enabling (or home ) statute or statutes closely connected to its function, with which it will have particular familiarity (Dunsmuir, at paras. 51 and 53-54; Smith, at para. 26) The Appeals Commission, the tribunal in this case, is an appellate tribunal with final and binding decision-making authority over the adjudication of workers compensation claims handled by the WCB of Alberta, including the claims of federal employees under GECA that arise in Alberta, Northwest Territories, Nunavut and Yukon Territory It is well recognized that the Appeals Commission is an expert tribunal in matters pertaining to workers compensation. The Appeals Commission is entitled to deference when deciding a matter that is within its jurisdiction or interpreting an enabling or closely connected statute. Whether or not a claimant is entitled to compensation is a matter clearly within jurisdiction of the Appeals Commission Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 SCR 616 (Nor-Man) at para. 36. [BA Tab 21] 23 WCA, s [BA Tab 38] & GECA, s. 5 [BA Tab 36] 24 Gahir v. Alberta (Workers Compensation, Appeals Commission), 2009 ABCA 59 at para. 13 [BA Tab 10]; Holmberg v. Alberta (Alberta Workers Compensation, Appeals Commission), 2011 ABCA 173 at paras [BA Tab 11].

16 Its jurisdiction and expertise encompasses claims made to the WCB of Alberta under GECA. As indicated, GECA itself creates no decision-makers and creates no review bodies or appeal tribunals but rather delegates those important functions to the entities created under provincial legislation, in this case the WCA. Accordingly, the Appeals Commission is the final appellate tribunal that determines the workers compensation claims of federal employees under GECA, including questions of entitlement. So far as the Appeals Commission is concerned, GECA is an enabling statute, as confirmed by Abella JA (as she then was) in Canada Post Corp. v. Smith: This means that the GECA has assigned exclusive jurisdiction to the Board and Tribunal for determining what injured federal workers are entitled to in Ontario. The effect of granting this exclusive jurisdiction is to render the GECA a "home" or "constituent" statute for the two administrative agencies responsible for injured workers in Ontario. The fact that s. 4(3) of the GECA unambiguously delegates interpretative responsibility over compensation to the Workers' Compensation Board and the Workers' Compensation Appeals Tribunal effectively neutralizes the argument that the GECA is an external statute and reinforces the reality that its provisions are incorporated by reference into the Board and Tribunal's mandate In the present case, it is not surprising that the Court of Appeal of Alberta recognized that the Appeals Commission is very familiar not only with the WCA but also GECA. Federal employees covered under GECA are ubiquitous in Alberta and the three territories. Employees of federal government departments, Canada Revenue Agency, Parks Canada Agency, Canada Post Corporation, Via Rail and civilian employees of the RCMP and military are but some examples. Given the presence of numbers of federal employees in Alberta and the three territories of Canada, it is obvious the Appeals Commission routinely deals with GECA claims and is well familiar with the interplay between the two statutes. As noted by the Court of Appeal of Alberta, its findings on the relationship between the two statutes should be considered to be the decision of an expert tribunal. 32. Since this is a decision of an expert tribunal in an area (entitlement to workers compensation in GECA cases) that it regularly deals with as part of its usual jurisdiction, its OR (3d) 97; 159 DLR (4th) 283; 109 OAC 117 at para. 20. [BA Tab 5]

17 14 decision on the particular question, whether a provincial policy related to entitlement applies to a GECA claim, should be afforded the utmost deference. This Honourable Court has reinforced on several occasions the deference that judicial review courts must accord to expert tribunals interpreting their enabling statutes or closely associated statutes, absent one of those rare true questions of vires or jurisdiction As the Court of Appeal of Alberta noted in this case, the vires of Policy has never been put in issue, 27 nor can it be said that jurisdiction (in the narrow sense of whether the tribunal has the authority to make the decision) is at issue here. 34. The Appeals Commission devotes some 13 single-spaced pages of its decision to discussing the issue of whether the Alberta policy can apply in mental stress cases under GECA. It notes the purpose of GECA is to provide compensation for injured federal employees in accordance with entitlements available in the province they work [paragraph 21.1]. It compares the respective definitions of accident under GECA and the WCA and concludes there is no material difference [paragraphs 21.2 & 21.3]. After examining both the statutory wording and public policy underlying GECA, the Appeals Commission concludes that provincial policy can apply in the Applicant s case [paragraph 21.4 & 22]. 28 It is a careful, transparent, justifiable and intelligible analysis decision that meets the reasonableness test in Dunsmuir. 29 Moreover, the Court of Appeal of Alberta agreed with the analysis. 30 Questions of law do not necessarily result in a correctness standard 35. Relying on cases from the Courts of Appeal of Nova Scotia and New Brunswick, 31 Martin urges this Court to find that, as a question of law, the issue of the applicability of 26 Alberta Teachers Association v. Alberta (Information and Privacy Commissioner), [2011] 3 SCR 654, at paras (ATA) [BA Tab 1] ; Celgene Corp v Canada, [2011] 1 SCR 3, at paras [BA Tab 6]; Smith v Alliance Pipeline Ltd, [2011] 1 SCR 160, at para. 26 [BA Tab 26]; Nor-Man, supra, at paras [BA Tab 21] 27 Court of Appeal Decision at para. 34. [AR, p. 61] 28 Appeals Commission Decision [AR, pp ] 29 Dunsmuir v. New Brunswick, [2008] 1 SCR 190 (Dunsmuir) at paras [BA Tab 8] 30 Court of Appeal Decision at paras. 31 & 51. [AR, pp. 60 & 64] 31 Stewart v Workplace Health, Safety and Compensation Commission, 2008 NBCA 45 at paras 6-7 [Stewart #1] [Appellant s Book of Authorities ( ABA ) Tab 29]; Canada Post Corp v Nova Scotia (Workers Compensation Appeals Tribunal), 2007 NSCA 129 at paras [ABA Tab 16]; Embanks v Nova Scotia (Workers Compensation

18 15 provincial policy to a GECA claim requires a standard of review of correctness. There are three reasons why questions of law in judicial review of administrative proceedings do not necessarily result in a correctness standard. 36. First, it is significant that the cases relied upon by Martin are all statutory appeals in which privative clauses, which are central in finding a standard of review of reasonableness, are absent. As is evident from Robichaud, 32 these jurisdictions have developed a body of case law that establishes the standard of review applicable in appeals to their Courts of Appeal. The cases cited by Martin depend on this jurisprudence and do not put forward a substantive standard of review analysis, with the exception of Stewart #1. In that case the Court specifically identified the absence of an applicable privative clause as a factor that weighed in favour of a correctness standard in the Dunsmuir contextual analysis The case at bar is a case of combined judicial review and judicial appeal while the Court of Appeal of Alberta characterized the case as one of judicial review. 34 In any event, some regard must be accorded to the privative clause in present Alberta s WCA. 35 In the Dunsmuir contextual analysis, this is a factor weighing heavily in favour of a reasonableness standard a factor missing in the Maritime cases. Consequently, the Maritime cases should carry little weight in determining the standard of review for this case. 38. Second, with the exception of Robichaud, all of these cases were decided prior to the 2011 release of the Supreme Court of Canada s deference trilogy. 36 In particular, in ATA the Appeals Tribunal), 2008 NSCA 28 at para 6 [Embanks] [BA Tab 9]; Attorney General of Canada v Robichaud and Workplace Health, Safety and Compensation Commission, 2013 NBCA 1 [Robichaud] [ABA Tab 27]; 32 See e.g.: Robichaud, supra, at para 9. [ABA Tab 27] 33 Stewart #1 at para. 7 [ABA Tab 29] 34 Court of Appeal Decision, para 21 [AR, p. 58]. 35 The privative clause applicable to the Appeals Commission is found at s. 13.1(1) of the WCA and reads: 13.1(1) Subject to sections 13.2(11) and 13.4, the Appeals Commission has exclusive jurisdiction to examine, inquire into, hear and determine all matters and questions arising under this Act and the regulations in respect of (a) appeals from decisions under section 46 made by a review body appointed under section 45, (b) appeals from decisions under section 120 made by a review body appointed under section 119, (c) appeals from determinations of the Board under section 21(3), and (d) any other matters assigned to it under this or any other Act or the regulations under this or any other Act, and the decision of the Appeals Commission on the appeal or other matter is final and conclusive and is not open to question or review in any court. [BA Tab 39] 36 Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador Treasury Board, 2011 SCC 62 [BA Tab 20]; Nor-Man, supra, [BA Tab 29]; and Alberta (Information an Privacy Commissioner) v. Alberta Teachers Association, 2011 SCC 61 (ATA) [BA Tab 1].

19 16 Court states that a question of law will not be sufficient for establishing a standard of review of correctness when a tribunal is interpreting a home statute, or statutes closely connected to its function. 37 As noted above, GECA has been identified as a statute that is either a home statute or one with which Alberta s Appeals Commission is closely connected. In the case at bar, the Appeals Commission is clearly interpreting GECA in determining whether the policy is applicable to Martin s claim under GECA. 39. In these situations, the deference trilogy is clear that a mere question of law does not, in itself, garner a correctness standard. Rather, in order to attract a correctness standard, it must be (1) a question of law of central importance to the legal system as a whole and (2) a question of law outside the decision-maker s area of expertise. 38 Nor-man is especially helpful as this was a case concerning an arbitrator s application of the common law doctrine of estoppel to a labour issue. This Court rejected the submission that correctness was the proper standard because, even though it was a question of law, the doctrine was only applied as such within the sphere of labour relations and, consequently, the application was not relevant to the legal system as a whole. Further, the arbitrator was applying the doctrine in an area of law that was well within expertise. As a result, Nor-man adopted a reasonableness standard. 40. Here, the issue posed by Martin (the applicability of the excessive or unusual criterion) can only apply in the narrow circumstances of a GECA claim for chronic onset mental stress where a provincial workers compensation policy also addresses the subject-matter. It is not a question of central importance to the legal system, nor is it outside the decision-maker s usual sphere of expertise. The analysis in Nor-man should accordingly be preferred over the analysis suggested by the aforementioned Maritime cases. 41. Third, Robichaud and its companion case Anderson, 39 the two post-trilogy cases, are distinguishable in that they are not cases considering the applicability of provincial policy to the GECA but a different legal issue entirely. In an earlier New Brunswick Court of Appeal 37 ATA, supra, at para 30. [BA Tab 1] 38 ATA, supra, at para 46; [BA Tab 1] Nor-Man, supra, at para 32. [BA Tab 21] 39 Attorney General of Canada v Anderson and Workplace Health, Safety and Compensation Commission, 2013 NBCA 2 (Anderson). [BA Tab 2]

20 17 Decision, Stewart #2, 40 a two-prong common law test was articulated for determining the eligibility of federal workers under GECA with chronic onset stress claims. In both Robichaud and Anderson, the sole issue was whether or not the tribunal correctly applied the common law test as stated in Stewart #2. 41 Whether a tribunal correctly applies a common law test is a substantially different issue than whether or not provincial policy is applicable in the interpretation and application of a federal statute. The Courts have equal, if not greater, expertise in construing the common law, while the Appeals Commission has more expertise in dealing with the specific question of applying the chronic stress policy in chronic stress cases coming under GECA. On this basis, the two recent New Brunswick cases hold very low persuasive value in determining the appropriate standard of review for this case. 42. In any event, as shown below, the Appeals Commission decision is correct. B. The Legal Justification for Applying Policy to GECA Claims Purpose of GECA 43. Parliament s intent in enacting GECA was to provide workers compensation to federal employees on the same footing as workers under provincial legislation. It did so by conferring decision-making responsibility upon provincial workers compensation bodies and directing that the laws of the province apply in determining compensation claims. The objective was to achieve parity within the province, not create a single national system that would be administered by ten different authorities. This objective was described by Abella, JA (as she then was) in Canada Post Corp v Smith,: [17] The appellant suggests, however, that an acknowledgment of interpretative primacy over the GECA to provincial boards, creates a patchwork of rights for injured federal employees, depending on the laws of the province in which they usually work. This is inconsistent with a homogenous federal approach to compensation. 40 Stewart #2, supra [BA Tab 27] 41 Robichaud, supra, at paras 4, [ABA Tab 27]; Andersen, supra, at paras 4, 10 [BA Tab 2].

21 18 [18] This result, in my view, is neither inequitable nor inconsistent with the principles of federalism. Making different administrative arrangements with different provinces is not unconstitutional. Rather than leaving injured or disabled federal workers with no recourse, the federal government passed the GECA so that every federal employee had the right to whatever compensation other injured workers in the same province could claim. What the federal government has ensured is uniformity in compensation between injured employees in any given province, whether federally or provincially employed The cases relied upon by Martin to suggest the pan-canadian approach focus on the fact that in the two jurisdictions in question (New Brunswick and Newfoundland and Labrador), 43 the definition of accident under provincial legislation expressly excluded chronic stress. Since the GECA definition has no such exclusion, the federal definition was at odds with the provincial definition. It was because of this material difference that the Courts in those cases said that entitlement or eligibility must be determined by reference to federal law not provincial law. This stands to reason since the claims arose under GECA, not the provincial workers compensation statute. Here, the Appeals Commission has not applied a different provincial definition. No one in this appeal disputes that the GECA definition has primacy. As found by the Appeals Commission and concurred in by the Court of Appeal, the federal and provincial definitions are materially the same. It is not a matter of (in the words of Stewart #2) the province redefining accident in GECA in the province s own image. Rather, the two definitions are mirror images of one another. The real question is whether the policy is at odds with the GECA definition of accident. As discussed below, it is not. 45. Even if applying provincial policies in the adjudication of entitlement in GECA claims results in differential treatment across Canada, it is well established that differences in federal programs by region are permissible, if not expected, within the fundamental and defining reality of cooperative federalism that underlies our Canadian legal structure. As the Court of Appeal of Alberta rightly points out in this case, Courts should harmonize the interplay between legislative levels, not seek out conflict Canada Post, supra, at paras. 17 & 18 [ABA Tab 16]. 43 Rees [ABA Tab 28] and Stewart #1 [ABA Tab 29]. 44 Court of Appeal Decision at paras. 42 & 83. [AR, pp & 72]

22 The interaction between GECA and the WCA is a good example of cooperative federalism at work. Through s. 4(3) of GECA the responsibility for determining compensation in GECA cases is delegated to the WCB 45. In turn, the WCA at s. 154 contemplates assignment of such duties. 46 In furtherance of s. 154, the Lieutenant Governor in Council issued an Order in Council dated May 5, 1993, 47 officially clothing the provincial WCB with the mandate of administering the federal GECA. Adjudication policies support the objectives of workers compensation statutes, including GECA 47. The Applicant complains that the policy is limiting and that in GECA cases the decisionmaker s discretion to accept a claim or not accept a claim should be exercised only with reference to ss. 2 and 4(1)(a)(i). Yet, it is well established that administrative tribunals engaged in discretionary decision-making may rely on polices to guide the exercise of discretion, whether specifically authorized by statute or not. 48. Policies in administrative decision-making serve a number of purposes, which were enumerated by Slatter J (as he then was) in Skyline Roofing Ltd. v. Alberta (Workers Compensation Board Appeals Commission), at para 75: policies provide notice to the public of what the tribunal expects of them, and what the public might expect of the tribunal; policies encourage consistency in decisions where many public officials or employees are involved in making similar decisions; 45 Section 4(3) of GECA [BA Tab 36] states: 4(3) Compensation under subsection (1) shall be determined by (a) the same board, officers or authority as is or are established by the law of the province for determining compensation for workmen and dependants of deceased workmen employed by persons other than Her Majesty; or (b) such other board, officers or authority, or such court, as the Governor in Council may direct. 46 Section 154 of the WCA [BA Tab 38] states: 154 The Lieutenant Governor in Council may by order refer or assign to the Board (a) the administration of any other Act, (b) the performance of any duty or task, or (c) the performance of any duty or task in connection with the administration of a statute or ordinance of a public authority in Canada relating to workers compensation, and that is requested of it by the proper authority in that regard. 47 Order in Council 309/93. [BA Tab 39] Note the Order In Council states that it is issued in response to a request by the federal Minister of Labour.

23 20 published policies make decision-making more transparent; decisions consistent with the policy have a known source, while inconsistent decisions call for justification; policies are necessary or expedient when a large volume of decisions must be made; while policy might emerge from a series of decisions, a formally stated policy is likely to be more comprehensive, rational and accessible Such purposes are clearly desirable in any regime of administrative decision-making. In workers compensation, the promulgation of policies supports the objectives of the system. These objectives were expressed in Nabors Canada Ltd. v. Alberta (Appeals Commission for Alberta Workers Compensation Board) as follows: The underlying purpose and rationale of the Workers Compensation scheme is to provide a compulsory, no-fault system of compensation for workers; it was intended to remedy the perceived inefficiencies and inadequacies of the tort system that it replaced by providing an expeditious process at minimal expense, so that compensation may be provided to injured workers without the need for court proceedings: Pasiechnyk v. Saskatchewan (Workers Compensation Board), [1997] 2 S.C.R. 890, per Sopinka J In Nabors, the Appellant, as in this case, attempted to bifurcate the concept of compensation into two distinct areas of entitlement to compensation and the benefits payable as compensation, as a means of avoiding the application of a policy that defined entitlement criteria. The Appellant argued that the word compensation in reference to the WCB Board of Directors authority to make compensation policy encompassed only the benefit levels, not the question of entitlement. The Court of Appeal responded that the concept of compensation necessarily embodies both entitlement and benefits, since excluding the former would tend to defeat the purpose of the legislation. In commenting upon the Appeals Commission s duty to apply WCB policy, the Court of Appeal concluded: The Commission is often called upon to assess not only entitlement to compensation, but the extent to which the injuries are compensable. In carrying out its task, the Commission is bound by the Board s policies. There is no obvious 48 Skyline Roofing Ltd. v. Alberta (Workers Compensation Board Appeals Commission), 2001 ABQB 624 (Skyline) at para. 75 [BA Tab 25] 49 Nabors Canada Ltd v. Alberta (Workers' Compensation Appeals Commission), 2010 ABCA 243 (Nabors) at para. 11[BA Tab 18]

24 21 rationale to limit those policies to the second stage of the analysis. To accept the appellant s submission would limit the benefits served by Board policies, namely consistency and efficiency, to the manner in which the Commission assesses the level of compensation under the Act, but would undermine those benefits when assessing entitlement to compensation. Such an approach is inconsistent with the underlying purpose of the Act, read as a whole Since GECA is a workers compensation statute, its objectives cannot be different than those expressed in Pasiechnyk as referred to above. 51 Consequently, accepting Martin s contention that WCB entitlement policies cannot apply to GECA cases runs counter to the whole reason for which GECA was enacted to provide a consistent and efficient system of compensation for federal employees on par with that of provincial workers. 52. WCB policies govern a host of questions related to entitlement to compensation. Some of the topics include: travel for work purposes, use of residential facilities, injuries in parking lots, athletic activity, criminal acts, intoxication, fighting, horseplay, epileptic seizures, fainting in the workplace, eating while at work, lunch breaks and coffee breaks, cardiac cases, hearing loss, second injury, and, of course, psychiatric and psychological disability, to name a few. 52 Some of the policies are limiting, as in the case of psychiatric and psychological injury, but some also expand coverage. For example, coverage is extended to persons who are living in an employer s camp or making use of a private road leased by the employer, even when they are not actually working, 53 and to persons who are undergoing medical or rehabilitation treatment for workrelated injury while they are off work. 54 It is beyond doubt that federal employees under GECA would similarly find themselves in the myriad of factual circumstances covered by these policies. These are policies of general applicability to all workers within the Alberta workers compensation regime and serve the systemic objectives of consistency, transparency, rationality and efficiency identified in cases such as Skyline and Nabors. Not all claims can be accepted, so policy-making in this regard supports the statute by informing statutory decision-making on a 50 Ibid, at para. 18 [BA Tab 18]. 51 Recently in Marine Services International Ltd. V. Ryan Estate, 2013 SCC 44 (Ryan s Commander) [BA Tab 14], this Honourable Court stated at para. 33 that GECA is a workers compensation statute based on the Meredith model discussed in Pasiechnyk. 52 WCB Policies and Information Manual ( the WCB Policy Manual ), Work-Relatedness, Policy 02-01, Parts I & II & Injuries, 03-01, Parts I & II, Applications 1-6 [BA Tab 34] 53 The WCB Policy Manual, Policy 02-01, Part II, Applications 1 & 3 [BA Tab 34] 54 The WCB Policy Manual, Policy 03-01, Part II, Application 2 [BA Tab 35]