S.C.C. No.: 35052 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE ALBERTA COURT OF APPEAL)
BETWEEN:
DOUGLAS MARTIN
APPELLANT (Respondent) - and -
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 SUPREME ADVOCACY LLP BOARD OF ALBERTA 397 Gladstone Avenue, Suite 100 9912 - 107th Street, 11th Floor Ottawa, Ontario K2P 0Y9 Edmonton, Alberta, T5K 1G5 Eugene Meehan, Q.C. Douglas R. Mah, Q.C. Marie-France Major Tel.: (403) 498-8665 Tel: 613-695-8855 Fax: (403) 498-7878 Fax: 613-695-8580 Email: [email protected] E-mail: [email protected] [email protected] Counsel for the Respondent, The Workers’ Compensation Board Agent for Counsel for the Respondent, The Workers’ Compensation Board
RAVEN, CAMERON, BALLANTYNE & YAZBECK LLP 1600 - 220 Laurier Ave West Ottawa, Ontario, K1P 5Z9
Andrew Raven Andrew Astritis Amanda Montague-Reinholdt Tel.: (613) 567-2901 Fax: (613) 567-2921 Email: [email protected]
Counsel for the Appellant, Douglas Martin
APPEALS COMMISSION FOR GOWLING LAFLEUR HENDERSON LLP ALBERTA WORKERS’ 160 Elgin Street, Suite 2600 COMPENSATION Ottawa, ON K1P 1C3 901, 10109 - 106 Street Edmonton, AB T5J 3L7 Henry S. Brown, Q.C. Tel: 613-233-1781 Sandra Hermiston Fax: 613-563-9869 Tel: 780-412-8700 E-mail: [email protected] Fax: 780-412-8701 E-mail: [email protected] Agent for the Respondent, Appeals Commission for Alberta Workers’ Counsel for the Respondent, Appeals Compensation Commission for Alberta Workers’ Compensation
ATTORNEY GENERAL OF CANADA ATTORNEY GENERAL OF CANADA 300 - 10423 101 Street N.W. Bank of Canada Building - East Tower Edmonton, Alberta, T5H 0E7 234 Wellington Street, Room 1212 Ottawa, Ontario, K1A 0H8 Bruce F. Hughson Tel.: (780) 495-2983 Christopher M. Rupar Fax: (780) 495-2964 Tel.: (613) 941-2351 Email: [email protected] Fax: (613) 954-1920 Email: [email protected] Counsel for the Respondent, Department of Justice Ottawa Agent for Counsel for Respondent, Department of Justice
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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 03-01 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 03-02 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
1
PART 1 – STATEMENT OF FACTS
A. Overview
1. Under the Government Employees Compensation Act1 (“GECA”), the responsibility for adjudicating the workers' compensation claims of federal employees lies with the decision- making 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, 1913. [BA Tab 31] 3 Appellant’s Factum, paras. 29 & 31. 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 1918. 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] 3
workers’ compensation program for persons covered under GECA who work in Alberta, Northwest Territories, Nunavut and Yukon Territory.6
9. 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.9
10. 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. 13.2 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.10
13. Over the years his involvement in the firearms issue led to several interactions with his employer of a labour relations nature.11
6 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] 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.12
15. 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 300.0 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 03-01 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, 2007. [AR, p. 152] 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.14
17. 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.15
18. 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.16
19. 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.17
14 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 03-01” or “the Policy”. 15 Initial adjudication letter of May 1, 2007 at pp. 1-5. [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. 15-16]. The paragraph numbers shown in square parentheses indicate the paragraph number in the decision from which the statement is drawn. 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 ...
4. (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, 200918 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. 14-35] 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 03-01 • 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 300.0 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 309.81 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 309.81 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 300.0 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 www.health.alberta.ca/documents/diagnostic-coe-icd-9.pdf [BA Tab 29]. 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. 13.4 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.20
20 Decision of the Honourable Justice V. O. Oullette, March 9, 2010 [AR, pp. 36-42] 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, 2012.21 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. 52-75] The paragraph numbers shown in square parentheses indicate the paragraph number in the Decision from which the statement is drawn. 10
• All parties accepted the Appeals Commission’s finding that Martin’s condition (post- traumatic 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]
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 03-01 applies to Martin’s claim, the standard of review is reasonableness (Appellant’s Issue1); B. Policy 03-01 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 03-01 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 03-01 (Appellant’s Issue 4).
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).22
28. 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.23
29. 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.24
22 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. 13.2 [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. 11-13 [BA Tab 11]. 13
30. 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.25
31. 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
25 40 OR (3d) 97; 159 DLR (4th) 283; 109 OAC 117 at para. 20. [BA Tab 5] 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.26
33. As the Court of Appeal of Alberta noted in this case, the vires of Policy 03-01 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. 33-34 (ATA) [BA Tab 1] ; Celgene Corp v Canada, [2011] 1 SCR 3, at paras. 33-34 [BA Tab 6]; Smith v Alliance Pipeline Ltd, [2011] 1 SCR 160, at para. 26 [BA Tab 26]; Nor-Man, supra, at paras. 35-36 [BA Tab 21] 27 Court of Appeal Decision at para. 34. [AR, p. 61] 28 Appeals Commission Decision [AR, pp. 26-28] 29 Dunsmuir v. New Brunswick, [2008] 1 SCR 190 (Dunsmuir) at paras. 47-50. [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 13-18 [ABA Tab 16]; Embanks v Nova Scotia (Workers’ Compensation 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.33
37. 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]. 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] 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 03-01 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, 13-14 [ABA Tab 27]; Andersen, supra, at paras 4, 10 [BA Tab 2]. 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.42
44. 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. 44
42 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. 62-63 & 72] 19
46. 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 WCB45. 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 decision- maker’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. 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.48
49. 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.49
50. 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] 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.50
51. 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 work- related 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] 22
principled basis. Policy-making is a necessary activity in light of the sheer numbers of claims and the need for expediency (i.e. in 2012, there were over 199,000 injury claims administered by the WCB).55
53. Under Martin’s proposed approach, decision-making in GECA cases would become undisciplined, chaotic and inconsistent, adversely affecting all federal employees in Alberta and the three territories, as well as the Government of Canada and its departments and agencies. Since the bare words of the statute provide little in the way of guidance or principles of application, decision-making in the absence of robust, published policies would fall prey to the impressions and whims of the decision-maker on that day. In all cases, the workers’ compensation statute or statutes along with the policies work in concert to comprise an interconnected, and at times complex, system of benefits and obligations. The workers’ compensation system is not a buffet in which claimants are allowed to pick the policy items they like and reject the ones they don’t like.
Properly construed, the ‘determination of compensation’ under s. 4(3) of GECA also consists of policy-making
54. The job of ‘determining compensation’ under s. 4(3) of GECA is carried out not only at the individual case level but also at the higher systemic level through the enactment of policies. Creating polices to inform the determination of compensation is an important and fundamental facet of a workers’ compensation system because the words of a statute are not enough, particularly in an area such as entitlement where the facts and circumstances of an injury or accident can be almost limitless. Policies are necessary to give meaning to the words of the statute, including the words that define entitlement.
55. Therefore the Board of Directors of the WCB is one of the bodies described in s. 4(3)(a) of GECA as having the authority to determine compensation, but in this context referring to the determination of compensation at the systemic or policy level. The authority of the WCB to ‘determine compensation’ in accordance with s. 4(3) of GECA includes the power to make policies in respect of compensation.
55 WCB-Alberta 2012 Highlights [BA Tab 32] 23
56. As noted from Nabors, eligibility for compensation is as much a compensation question as level of benefits. Therefore part of determining compensation is also determining eligibility for or entitlement to compensation. Eligibility or entitlement is determined by considering and giving meaning to each and every component in s. 4(1)(a). Thus in determining eligibility the following questions must be asked and answered in the case of every GECA employee presenting a claim: (a) whether a personal injury has been sustained, (b) whether there was an accident, (c) whether the personal injury was caused by the accident, and (d) whether the accident arose out of and in the course of employment.
57. When the authority to determine compensation is read to include the authority to create policies informing the determination of compensation, it can be seen that Policy 03-01 is actually authorized by s. 4(3). Policy 03-01 addresses the causation aspects of the eligibility test found in s. 4(1)(a) by dealing with the questions listed in the preceding paragraph. Policy decisions of the Board of Directors are to be accorded deference and any such policy would be unauthorized only in a case where it is ultra vires the statute.56
58. A more direct example of provincial policy-making in the GECA context is found in Embanks, which deals with a Nova Scotia WCB policy that specifically addresses chronic stress cases under GECA and which is in substance the same as Alberta’s Policy 03-01. In Embanks, Cromwell JA (as he then was) noted:
[12] … There was the question of whether gradual onset stress was compensable at all under GECA. WCAT had often decided that it was, but the issue was unresolved by this Court. Beyond this threshold question, there was uncertainty about the conditions under which gradual onset stress should be recognized as a workplace injury. In particular, there was uncertainty about whether the existence of workplace stressors should be assessed objectively or subjectively. … [13] The Board exercised its policy-making authority to bring clarity to these issues. It adopted Policy 1.3.6 which applies to all decisions made on and after July 25, 2005. The Policy provides that both gradual onset and traumatic event
56 Parada v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 44 at paras. 24 & 26 [BA Tab 22] 24
stress are compensable under GECA and sets out the conditions under which each type of stress is compensable.
[14] To qualify as gradual onset stress, the Policy sets out four conditions which must be met. Most relevant to this appeal is the first requirement, that the workplace events or stressors must be “unusual and excessive in comparison to those experienced by an average worker in the same or similar occupation.” This requires what is often referred to as an objective approach to assessing the nature of the workplace stressors…
59. WCB policy, because it is binding on all decision-makers within the system, is a form of delegated legislation.57 As such, it is part of the law of the province. Compensation under GECA is required to be dispensed in accordance with the law of the province, as stated in s. 4(2):
4(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. (emphasis added)
The word “conditions” in s. 4(2) of GECA also means conditions of eligibility
60. Martin insists that the word “conditions” appearing in s. 4(2) relates only to benefits and not to eligibility. It is not clear why this must be the case. There is no limiting language in s. 4(2). The plain and ordinary meaning of the word “conditions”, taken in context, is reasonably interpreted to refer to both eligibility and benefits. The word “compensation” is taken to mean both and it is connected to the word “conditions” in s. 4(3). Further, in using the word “entitled”, the section speaks not only of what the employee is entitled to receive as compensation but also when the employee becomes entitled to receive it. One is only entitled to receive benefits if one meets the threshold requirements for eligibility as defined under the law of the province.
57 See also Skyline, supra, at para. 62 [BA Tab 25] 25
61. Thus the Appeals Commission committed no reviewable error in holding that the word “conditions” in s. 4(2) includes the conditions for acceptable chronic stress as found in Policy 03-01. Rather, the Appeals Commission followed s. 4(2) by observing the conditions prescribed under the law of the province in determining whether Martin was entitled to receive compensation.
Eligibility requirements under GECA the same as under the WCA
62. Martin complains that Policy 03-01 is limiting and qualifies the meaning of accident. Yet that is exactly the purpose of a policy. Not everything can be an accident, nor can everything be caused by employment. Policies place parameters around these concepts and thus promote rational, transparent and consistent decision-making. It is odd that Martin objected originally only to the latter two of the four criteria in Policy 03-01. Even the first criterion, the requirement of a DSM diagnosis, limits the scope of acceptable injury; however, that criterion is acceptable to Martin.
63. It was important for the Appeals Commission to compare the eligibility requirements in GECA with those in the WCA to illustrate that Policy 03-01 can equally apply to both. The Appeals Commission stated at para. 21.2:
From our review of the legislation we find that, under GECA, the definition of accident and the provisions regarding eligibility for compensation are the same or substantially similar to those in the WCA. 58
64. The Court of Appeal commented that it might not have been entirely grammatically correct to characterize the respective provisions as the “same or substantially similar”, noting that the WCA definition of “accident”59 appears to be more modern and contains forms of
58 [AR, p. 26.] 59 WCA, s. 1(1)(a) [BA Tab 38] defines accident as follows: “accident” means an accident that arises out of and occurs in the course of employment in an industry to which this Act applies and includes (i) a wilful and intentional act, not being the act of the worker who suffers the accident, (ii) a chance event occasioned by a physical or natural cause, 26
accident not included in the GECA definition.60 Nonetheless, the Court of Appeal accepted that for the purposes of applying Policy 03-01, there was no material difference between the two.
65. The criteria for eligibility for compensation in the two statutes are for all material purposes identical. Both require: [a] personal injury to a worker (WCA) or an employee (GECA), [b] that is caused by an accident, and [c] where the accident arises out of (was caused by) and in the course of employment. In both, an accident may be a wilful and intentional act, not that of the claimant, and a chance event (WCA) or a fortuitous event (GECA), in either case occasioned by a physical or natural cause.
66. The Appeals Commission’s point is that if Policy 03-01 is intra vires and consistent with the WCA, then it must be intra vires and consistent with GECA, since the eligibility requirements in both, which the Policy addresses, are the same.
Policy 03-01 is consistent with GECA
67. Martin contends that the Policy is inconsistent with GECA and therefore is inoperative in the adjudication of his claim. Without saying as much, Martin raises a paramountcy argument. The proper tests for inconsistency between federal and provincial enactments were recently pronounced by this Court in Ryan’s Commander,61 a case concerning whether the federal Marine Liability Act is paramount to Newfoundland and Labrador’s workers’ compensation statute, the Workplace Health, Safety and Compensation Act. The putative inconsistency arose between the federal statute’s creation of a marine tort and the provincial statute’s prohibition against suit in the workers’ compensation context.
68. This Court described the first test as the “archetypical operational conflict” where compliance with one statute necessarily means violation of the other. The second form of
(iii) disablement, and (iv) a disabling or potentially disabling condition caused by an occupational disease [BA Tab 39] 60 GECA, s. 2 defines accident as “ ‘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” while s. 4(1)(a) states that “compensation shall be paid to … an employee who … is caused personal injury by an accident arising out of and in the course of his employment;” [BA Tab 36] 61 Supra [BA Tab 14] 27 conflict is characterized by frustration of the purpose of the federal law. Of interest and applicability to this case are the Court’s comments on the interplay between federal and provincial enactments made at para. 69.:
… The “fact that Parliament has legislated in respect of a matter does not lead to the presumption that in so doing it intended to rule out any possible provincial action in respect of that subject”: Canadian Western Bank, at para. 74. Courts must not forget the fundamental rule of constitutional interpretation: “[w]hen a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes”: Canadian Western Bank, at para. 75, citing Attorney General of Canada v. Law Society of British Columbia, 1982 CanLII 29 (SCC), [1982] 2 S.C.R. 307, at p. 356. The “standard for invalidating provincial legislation on the basis of frustration of federal purpose is high; permissive federal legislation, without more, will not establish that a federal purpose is frustrated when provincial legislation restricts the scope of the federal permission”: COPA, at para. 66. 62
69. Clearly in the present case, neither form of conflict or inconsistency is found. While Policy 03-01 does define, limit or qualify eligibility, no inconsistency exists because not every claim is eligible for compensation. GECA does not prohibit the application of policies and, as noted above, may actually contemplate or authorize their creation and use. In addition, if the federal purpose here is to provide a compensation system for federal employees that mirrors that of the provinces, such a purpose is enhanced by the provincial enactment, not frustrated. Indeed, the application of the Policy to GECA claims does not impair the exercise of federal power. Rather, it is the exercise of federal power.
C. How the Excessive or Unusual Criterion Makes Sense and Accords with Law
The policy informs either whether an accident has occurred or whether an accident “arises out of” (was caused by) employment
70. Martin’s approach, as noted by the Court of Appeal of Alberta, also conflates the concepts of accident and causation.63 That Court rightly noted that the impugned Policy does not
62 Supra, para 69 [BA Tab 14] 63 Court of Appeal Decision, para. 40 [AR, p. 72] 28
change the definition of “accident” in GECA nor does it add extra requirements to that definition. Instead, the Policy provides guidance in determining whether an accident, as defined, has occurred and, if so, whether it is caused by (“arises out of”) employment.64
71. As the opening words of the policy itself denote, Policy 03-01 clearly is a causation policy.65 It provides guidance to the decision-maker by setting out a four part test to assist in determining entitlement in chronic stress cases. Martin objects to the third criterion: excessive or unusual events in comparison to normal pressures and tensions of the job. This criterion sets out an objective causation test. As the majority in the Court of Appeal noted, “To strip the requirement of the stress being beyond the normal for the job would be unreasonable.”66 A claimant’s reaction to a normal and ordinary aspect of the job must be viewed objectively, not subjectively, in the same way that Mr. Mustapha’s subjective overreaction to seeing a fly in his drinking water must be assessed with reference to “a person of ordinary fortitude” before blaming his injury on the water supply company.67
72. The main idea behind workers’ compensation is to compensate for injuries and conditions caused by work. Not every injury, condition, episode of discomfort or onset of anxiety is caused by work, even if it occurs at work. This is illustrated in Michelin North America (Canada) Inc. v. Nova Scotia (Workers' Compensation Board),68 which considered whether a worker’s condition of cognitive deficit resulting from his intolerance to shift work is an injury resulting from an accident arising out of and in the course of employment. The Court found that the mere fact that the worker had become symptomatic at work is not sufficient to satisfy the requirement that the condition was caused by work.69 More specifically, the Court held that inherent personal characteristics are not properly compensable, stating:
64 The concept of “arises out of employment” in relation to an “accident” as defined in a workers’ compensation statute was characterized by the Court of Appeal of Alberta in Macoon v. Alberta (Workers' Compensation Board), 1993 CarswellAlta 258, 7 Alta. L.R. (3d) 201, 135 A.R. 183 as referring to causation, at para. 8: “In our view, the words ‘arises out of’ impose a causal tie between the accident and the employment.” [BA Tab 13] 65 “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 when all of the following are met …” [BA Tab 35] 66 Court of Appeal Decision at para. 79 [AR, p. 71] 67 Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at paras. 14 & 15 [BA Tab 17] 68 2002 NSCA 166 (Michelin) [BA Tab 16] 69 Ibid at para. 39 [BA Tab 16] 29
In the present case, unlike Durnford, the Tribunal did confuse the manifestation of symptoms while at work with the requirement that the disablement arise out of and in the course of employment. Mr. Ross's cognitive deficit was a result of his shift-work maladaptation syndrome arising, as the Tribunal found, from his natural and innate intolerance of the conflict between his personal circadian sleep- wake pattern and the need to work at a time when his individual sleep-wake cycle would naturally be in the sleep phase or the need to sleep at the time he would naturally be awake. This intolerance is, as the Tribunal found, a personal characteristic inherent to the person. Unlike Durnford, there is no evidence that this condition is either caused or aggravated by the requirements of the job. Contrary to the Tribunal's holding based on its erroneous reading of Durnford, it cannot be said that simply because the condition manifests itself at work that the condition or its symptoms arise out of or in the course of employment…70
73. The excessive or unusual criterion in Policy 03-01 provides an objective test for determining whether an accident, as defined, has occurred and whether the condition complained of was caused by work or was simply a reaction that results from one’s innate makeup or personality. People may be unsuitable for certain jobs because of all manner of personal characteristics, either physical or mental. People may also dislike their jobs, their supervisors or their co-workers. This criterion prevents an individual from relying on personal unsuitability for a job, dissatisfaction with a job or the state of interpersonal relationships in a job as a basis for receiving compensation, absent an event that is excessive or unusual.71
Why an objective standard of causation is necessary
74. The requirement of an excessive or unusual triggering event, when compared to the normal pressures and tensions of the job reflects a systemic desire to have an ascertainable standard for this type of injury. Mental injuries by their nature, as well their connection to the workplace, are indistinct. Unlike physical injuries, such as a broken arm or a repetitive strain injury, mental stress is less tangible, harder to see and less amenable to proof of causation.
70 Ibid at para. 40 [BA Tab 16] 71 The purpose of the Policy can be further illustrated with this fictional example that incorporates the notion of “inherent characteristic” discussed in Michelin. Suppose an undiagnosed schizophrenic interprets his employer’s completely unremarkable behaviour towards him as menacing and forms the irrational belief that his employer is trying to kill him. He leaves work due to disabling stress stemming from the perceived workplace stressors. Under Martin’s analysis, such a claim is acceptable; however, someone applying the objective test in Policy 03-01 would say either that no accident has occurred or that the injury (the stress) was not caused by employment. 30
75. In light of the elusive nature of mental injuries and their connection to the workplace, the excessive or unusual standard was developed to provide an objective test of workplace causation. The application of this test is really an inquiry into whether it is probable that the reported mechanism of injury produced the injury that is claimed, an inquiry that is no different than in every case of a physical injury. In workers’ compensation, different types of injuries are proven by different methods depending on the nature of the injury and its amenability to direct or physical proof of causation. Some occupational diseases, for example, such as occupational cancers, are not amenable to physical proof (i.e. physical proof that exposure to a named toxin caused cells to mutate) and acceptance or denial of the claim is established through reference to scientific literature, not any direct proof which may be impossible in cancer cases.72 The nature of the injury dictates the method of causation assessment. With chronic stress injuries, an objective test yields the most rational and responsible decision.
The law supports only an objective standard
76. No one disputes that GECA claimants are permitted to make claims for chronic onset stress. This is so even where the provincial legislation prohibits such a claim for provincial claimants.73 The cases cited by Martin in support of the position that provincial law is inapplicable in determining entitlement in GECA cases (Rees, Stewart #1 and Stewart #2)74 all concern an absolute prohibition against acceptance of chronic onset stress found in the provincial legislation. However, that is not the case in Alberta. All claimants, whether under GECA or the WCA, are permitted to make claims based on chronic onset stress caused by the workplace. The only proviso is that, like any claim for physical injury that is made, the decision-maker must be satisfied that an accident has occurred and that there is sufficient workplace causation for the stress. The purpose of Policy 03-01 is to establish principles for making these determinations.
72 The WCB Policy Manual, Policy 03-01, Part II – Application 1: Relationship to Compensable Injury: “Often there is an obvious relationship between the nature of the injury and the compensable accident (e.g., a firefighter is burned when fighting a fire). However, the relationship is not always obvious. In these cases, there is a need for additional information, especially medical information, to establish the relationship to the compensable accident. For example, many occupational diseases have a long latency period. The WCB's inquiries must establish whether the work- related exposure was sufficient to cause the condition.” [BA Tab 35] 73 Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15 at para. 32 [ABA Tab 27]; Stewart #1, supra, at paras. 13 & 14 [ABA Tab 29]; Stewart #2, supra, at paras.7 & 8 [BA Tab 27]; and Embanks, supra, at para. 11 [BA Tab 9] 74 Appellant’s Factum, paras. 42, 43 & 44 31
77. Furthermore, there is agreement by Courts of Appeal in Canada that have considered the issue that mental stress claims under GECA must be adjudicated on an objective standard.
78. The case law begins with D.W. v. Workplace Health, Safety and Compensation Commission and Via Rail Canada Inc.,75 which stipulated an objective test of causation for traumatic, rather than chronic, stress in a case that likely should have been under GECA since it concerned employees of Via Rail.76 In facts not entirely dissimilar to Martin’s case, the claimant in D.W. complained about working conditions. The issue was not resolved and culminated in “[An] impasse [that] led to a verbal confrontation in which the appellant’s supervisor castigated her in a manner best described as a bombastic rant, punctuated by yelling.”77 In considering whether the event so described was “traumatic” for the purposes of the New Brunswick policy, the Court stated the following:
In my view, the test for assessing whether an event is traumatic must be an objective one. If it were a purely subjective test or even a modified objective test, the most innocuous of management decisions could support a claim for psychological injury. It would not be difficult for the skilled advocate to turn a case of “chronic” or “gradual onset” stress into a claim of psychological injury by focusing on a single incident; the one that broke the camel’s back, so to speak. The overly sensitive employee who is experiencing a severely stressful home or work life might well suffer an acute reaction to a critical management decision. A decision to lay an employee off work or to terminate employment, with or without just cause, may well lead to depression and the inability to find alternative work. But are these the types of claims for which the Legislature intended that compensation benefits would be available? I think not. To hold otherwise would be to sanction a regime in which the exception to the rule would become the rule. In my view, a subjective or modified objective test would be incompatible with the object of the 1992 amendment and its wording. For these reasons, the Commission was correct in imposing an objective test for deciding whether an event is a traumatic one. The question properly formulated is whether the reasonable person would regard the precipitous event as a traumatic one (out of the usual, expected or ordinary) because it is the type of occurrence that could realistically result in an employee being unable to continue with his or her employment.78
75 2005 NBCA 70 [BA Tab 7] 76 The court makes the observation, ibid, at paras. 61-62 that this probably should have been a GECA case 77 Ibid, at para. 2 78 Ibid, at para. 51 [BA Tab 7] 32
79. The objective test for chronic onset stress cases arising under GECA was first articulated in Stewart #2. Taking its cue from D. W., the Court concluded as follows:
[18] I am of the view an objective test is the appropriate standard against which to measure Ms. Stewart’s response to the workplace incidents with which she was presented. Because neither Appeals Tribunal which heard Ms. Stewart’s appeals applied that test to the facts before them, it remains for this Court to do so.
[19] The appellant contends the gradual onset of stress which led to her depression arose as a result of: (1) not being assigned sufficient work; (2) being required to assume a kneeling position for purposes of filing; (3) having her work station assigned to another employee, resulting in her acquiring a differently configured work station closer to her supervisors; and (4) being duped by her supervisor into requesting a return to her previous position (CR-03), when he (the supervisor) knew the position she was leaving would benefit from an increase in classification (and hence pay level) to CR-04. ... [24] While there is no doubt the constellation of events led to the appellant’s heightened stress levels, depression and her eventual departure from her employment, I am satisfied that a reasonable person would have reacted differently to those triggering events. Applying the objective test to the facts of this case, I am not satisfied the appellant suffered from an “accident” as defined in GECA.79
80. Applying a similar objective approach, all three members of the Court of Appeal of Alberta in this case took the view that an innocuous event such as receiving an access to information request could not constitute an “accident” under ss. 2 and 4(1)(a)(i) of GECA.80
81. In Embanks, Cromwell JA (as he then was) makes two important observations that are pertinent to this case: that the Nova Scotia policy, enacted specifically for chronic stress claims under GECA, contains an objective test for causation for determining whether work has caused an “accident” and such an objective test in the policy is declaratory of the common law that would have been applied even absent the policy:
[31] At the root of the inquires in those cases, as in this one, is whether there has been an “accident” within the meaning of the legislation … The same “ordinary reading” of the term “accident” (absent some express statutory expansion of the
79 Stewart #2, supra, at paras. 18, 19 & 24 [BA Tab 27] 80 Court of Appeal Decision at paras. 79 & 97 [AR, pp. 71 & 75] 33
term beyond its ordinary meaning) suggests that it is not appropriate to speak of an “accident” as something that occurred only in the perception of the worker. To put it simply, the question of whether there was an “accident” in the ordinary sense of the word cannot be answered by deciding that the worker thought there had been an accident. … … [41] In summary, WCAT did not err by considering whether stressors experienced by the worker had been unusual and excessive on an objective basis in the sense that they are compared to the work-related events or stressors experienced by an average worker in the same or similar occupation. This requirement, now embodied in Board Policy 1.3.6, sets out the better view of the law that applies even in the absence of the Policy.81
82. Two recent cases from the Court of Appeal of New Brunswick82 further solidify the position that chronic stress claimed under GECA is decided by an objective test using “excessive and unusual” stressors as the barometer, if not by policy, then through the common law. New Brunswick is a jurisdiction that does not recognize chronic onset stress as a compensable condition under the provincial workers’ compensation statute but is obliged to accept such claims, when properly established, under GECA. As Robichaud and Anderson relate, a common law test has been adopted to adjudicate entitlement in such cases. The common law test is largely based on Stewart #2. Referring to Stewart #2, the Court stated in Robichaud that chronic onset stress claims under GECA are properly established as follows:
Based on the objective test articulated in that decision, and the jurisprudence, a comparison has to be made with the average worker in the same and/or similar occupation. In turn, this leads one to ask the ultimate question: whether the workplace stressors were unusual and excessive compared to those experienced by an average worker in the same or similar occupation. The stressors must be looked at individually and collectively.83
83. Since the objective test approach represents the common law, Martin’s case would have been decided according to the same common law test even in the absence of the Alberta policy. The result would have been the same.
81 Embanks, supra, at paras. 31 & 41 [BA Tab 9] 82 Robichaud, supra, [ABA Tab 27] and Anderson, supra [BA Tab 2] 83 Robichaud, supra, at para 12 [ABA Tab 27] 34
84. There is absolute clarity from the case law in Canada that GECA is amenable to chronic stress claims; that the GECA definition of “accident”, not the provincial one, applies in GECA cases; and that the objective standard that was used in this case applies in their respective jurisdictions.
Why Charter considerations do not apply in this case
85. Martin relies on Zundel to suggest that using the “excessive or unusual” criterion in Policy 03-01 to establish an acceptable chronic onset stress claim under GECA is discriminatory and contrary to Charter values.84 The law arising from Zundel is clear and straightforward. First, it must be assumed that the impugned provision is constitutionally valid. Second, proper statutory analysis and interpretation must give rise to more than one reasonable interpretation of a provision; this is the threshold issue of ambiguity. Third, once the various interpretive options are identified, the one that best accords with “Charter values” should prevail85. A major theme in the subsequent case law is that Courts have developed the first step in this analysis in order to prevent the principle from being used as an alternative way to make a Charter challenge.86
86. No argument is advanced by Martin that the definition of accident in GECA nor any of the other components of eligibility in s. 4(1) suffers from ambiguity.87 He does not raise two equally reasonable but competing interpretations for any of the provisions in question. Rather, he asserts that the use of the excessive or unusual criterion in Policy 03-01 is discriminatory. As it stands, Martin’s argument is the type of collateral attack on the constitutionality of a legislative provision (the Policy), dressed up as a principle of interpretation, that the Courts have stated should be avoided.88
84 [1992] 2 SCR 731 [ABA Tab 26]; Appellant’s Factum, paras. 72 & 73 85 See Bell ExpressVu Limited Partnership v R, [2002] 2 SCR 559 at para. 29 &30 [BA Tab 3]; Newfoundland (Treasury Board) v Newfoundland Assn of Public Employees, [2002] NJ No 324 (NL CA) at paras. 564 & 565 [BA Tab 19]; Libo-on v. Fort Saskatchewan Correction Centre, [2004] AJ No 615 (AB QB) at paras. 90 & 91 [BA Tab 12]; and MDR v Ontario (Deputy Registrar General), [2006] OJ No 2268 (OB SC) at paras. 24-25 [BA Tab 15] 86 R v. Rodgers, [2006] 1 SCR 554 at paras. 18-19 [BA Tab 24]; and R v Knibb, [1997] AJ No 513 at paras. 50-51 [BA Tab 23] 87 Rather, Martin says in his Factum that the relevant provisions of GECA are unambiguous. See Appellant’s Factum, para. 42 88 Canada (AG) v Mossop, [1993] 1 SCR 554 at paras. 36-37 [BA Tab 4]; and Rodgers, supra, at paras. 18-19 [BA Tab 24]. 35
87. At its root, the dispute in this case is not about the meaning of the GECA definition of accident or any of the other eligibility or entitlement components in s. 4(1). Rather, the dispute is about whether resort to the Policy is allowed in the adjudication of chronic stress cases arising under GECA. Decision-makers exercising jurisdiction under s. 4(3) of GECA are required to make judgment calls about whether personal injury has been sustained, whether an accident has occurred, whether the accident caused the personal injury and whether the accident arose from employment. Ultimately the question to be decided by this Court is not what the specific words in GECA mean but rather whether those decision-makers in making those judgment calls can rely on policies such as Policy 03-01 to fill in discretionary gaps or must rely solely on bare statutory words.89 For the reasons stated above, it is clear the application of such policy to GECA cases is not only legally justified but necessary.
88. The Battlefords case cited by Martin deals with discrimination on the basis of mental disability under a provincial human rights code.90 The particular form of discrimination was with regard to the length of disability benefits payable – limited to two years in the case of mental disability unless there was confinement to a mental institution. There no was no equivalent limitation for physical disabilities. Battlefords does not provide an apt analogy. There is no similar limitation on the length of payment of benefits in the case at bar. Rather, the point of contention seems to be that the test for determining causation in chronic stress cases, under both GECA and the WCA, is different than for physical injuries. As explained above, that is because mental injuries by their intangible nature are less amenable to proof of causation and therefore require a different form of causation test.
89. Furthermore, Martin’s reliance on Plesner91 cannot assist on this point. First, Plesner dealt with policy provisions for traumatic onset stress not chronic onset stress. The policy criteria in the British Columbia policy relating to traumatic stress are vastly different and considerably
89 In considering the WCB’s ability to articulate and apply compensation policies, the Court of Appeal of Alberta recently said in Vallette v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 12 at para. 23: “Put another way, the WCB’s ability to create policy to fill in discretionary gaps in the workers’ compensation regime is acknowledged.” [BA Tab 28] 90 Appellant’s Factum, paras. 74 & 75 91 Appellant’s Factum, paras. 76-81 36
more detailed than Alberta’s policy regarding chronic onset stress. Second, there was direct challenge to the British Columbia policy under s. 15(1) of the Charter with a proper record and parties before the Court. Third, the claimant in Plesner had advanced a claim of post-traumatic stress disorder under the DSM IV based on a single traumatic experience occurring at work. However, the parts of the British Columbia policy that were struck out by the Court of Appeal as discriminatory all appear to be related to the diagnostic criteria for post-traumatic stress disorder as found in the DSM IV. The Court did not deal with the fact that the offending language and concepts originated from the DSM IV. In other words, Plesner is a curiosity at best – a case where a claimant claimed post-traumatic stress disorder under the DSM IV but the Court struck out the DSM IV criteria and concepts as discriminatory.92
D. Conclusion
90. Parliament’s intention in enacting GECA was to provide federal employees with access to the provincial workers’ compensation scheme and ensure parity with provincial workers. The application of provincially enacted policies to GECA claims provides this parity. If anything, the promulgation of policies such as Policy 03-01 should be viewed as part of the determination of compensation assigned to the WCB through s. 4(3) of GECA. The application of policies in the adjudication of injury claims promotes consistency, transparency and rationality in the workers’ compensation system, whether the cases arise under GECA or the WCA. This is a goal of any system of administrative decision-making.
91. The policy in question, Policy 03-01, is consistent with both the definition of accident in GECA and the other components of eligibility found in s. 4(1). Policy 03-01 informs the determination of work-related causation in chronic stress cases by providing an objective test. The policy in requiring excessive or unusual stressors embodies the common law developed in Canada with respect to chronic stress cases under GECA.
92 Compare the words struck out as discriminatory in Policy # 13.30 from Schedule “A” to the Reasons for Judgment of Madam Justice Prowse in Plesner [ABA Tab 25] with the language contained in the commentary and the diagnostic criteria for 309.81 Posttraumatic Stress Disorder in the DSM IV [BA Tab 35]. 37
92. Consequently, in applying Policy 03-01 to Martin’s claim, the Appeals Commission committed no reviewable error.
PART IV – COSTS
93. The WCB submits that costs should follow the event.
PART V – ORDER REQUESTED
94. The WCB respectfully requests that the appeal be dismissed.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated at Edmonton, Alberta this _____ of August, 2013.
______Douglas R. Mah, Q.C. Counsel for the Respondent
38
PART VI TABLE OF AUTHORITIES PARA Cases 1. Alberta Teachers’ Association v. Alberta (Information and Privacy Commissioner), [2011] 3 SCR 654 ...... 32, 38, 39 2. Attorney General of Canada v Anderson and Workplace Health, Safety and Compensation Commission, 2013 NBCA 2...... 41, 82 Attorney General of Canada v Robichaud and Workplace Health, Safety and Compensation Commission, 2013 NBCA 1...... 35, 36, 41, 82 Battlefords and Disctrict Co-operative Ltd. v. Gibbs, [1996] 3 SCR 566 ...... 88 3. Bell ExpressVu Limited Partnership v R, [2002] 2 SCR 559 ...... 85 4. Canada (AG) v Mossop, [1993] 1 SCR 554 ...... 86 Canada Post Corp v Nova Scotia (Workers’ Compensation Appeals Tribunal), 2007 NSCA 129 ...... 35 5. Canada Post Corp. v. Smith, 40 OR (3d) 97; 159 DLR (4th) 283; 109 OAC 117 ...... 30, 43 6. Celgene Corp v Canada, [2011] 1 SCR 3...... 32 7. D.W. v. Workplace Health, Safety and Compensation Commission and Via Rail Canada Inc., 2005 NBCA 70 ...... 78 8. Dunsmuir v. New Brunswick, [2008] 1 SCR 190...... 34 9. Embanks v Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 28...... 35, 58, 76, 81 10. Gahir v. Alberta (Workers’ Compensation, Appeals Commission), 2009 ABCA 59 ...... 29 11. Holmberg v. Alberta (Alberta Workers’ Compensation, Appeals Commission), 2011 ABCA 173 ...... 29 12. Libo-on v. Fort Saskatchewan Correction Centre, [2004] AJ No 615 (AB QB) ...... 85 13. Macoon v. Alberta (Workers' Compensation Board), 1993 CarswellAlta 258, 7 Alta. L.R. (3d) 201, 135 A.R. 183 ...... 70 14. Marine Services International Ltd. V. Ryan Estate, 2013 SCC 44 ...... 51, 67, 68 15. MDR v Ontario (Deputy Registrar General), [2006] OJ No 2268 (OB SC) ...... 85 16. Michelin North America (Canada) Inc. v. Nova Scotia (Workers' Compensation Board), 2002 NSCA 166...... 72 17. Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 ...... 71 18. Nabors Canada Ltd v. Alberta (Workers' Compensation Appeals Commission), 2010 ABCA 243 ...... 49, 50 39
19. Newfoundland (Treasury Board) v Newfoundland Assn of Public Employees, [2002] NJ No 324 (NL CA) ...... 85 20. Newfoundland and Labrador Nurses Union v. Newfoundland and Labrador Treasury Board, 2011 SCC 62...... 38 21. Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 SCR 616 ...... 27, 32, 38 22. Parada v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2011 ABCA 44 ...... 57 Plesner v. British Columbia Hydro and Power Authority, 2009 BCCA 188 ...... 89 23. R v Knibb, [1997] AJ No 513 ...... 85 24. R v. Rodgers, [2006] 1 SCR 554 ...... 85, 86 R. v. Zundel, [1992] 2 SCR 731 ...... 85 Rees v. Canada (Royal Canadian Mounted Police), 2005 NLCA 15 ...... 44, 76 25. Skyline Roofing Ltd. v. Alberta (Workers’ Compensation Board Appeals Commission), 2001 ABQB 624 ...... 48, 59 26. Smith v Alliance Pipeline Ltd, [2011] 1 SCR 160 ...... 32 27. Stewart v. Workplace Health, Safety and Compensation Commission, 2010 NBCA 67...... 41, 76, 79 Stewart v Workplace Health, Safety and Compensation Commission, 2008 NBCA 45...... 35, 44, 76 28. Vallette v. Alberta (Appeals Commission for Alberta Workers’ Compensation), 2012 ABCA 12 ...... 87
Books and Articles 29. Alberta Health, Claims Assessment, Alberta Health Diagnostic Codes, p. 64 found online at www.health.alberta.ca/documents/diagnostic-coe-icd-9.pdf ...... 21 30. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision, or DSM –IV-TR ...... 21 31. Sir William Ralph Meredith, Final Report, October 31, 1913 ...... 3
PART VII STATUTES AND OTHER ENACTMENTS Policies 32. WCB-Alberta 2012 Highlights ...... 52 33. WCB Policies and Information Manual – General Policies, Claimant and Health Care Services Policies, Employer Services Policies – Table of Contents ...... 9 40
34. WCB Policies and Information Manual, Work-Relatedness, Policy 02-01 ...... 52 35. WCB Policies and Information Manual, Policy 03-01 ...... 16, 52, 75
Statutes 36. Government Employees Compensation Act, RSC 1985, c. G-5, s. 2, 4, 5 37. The Workmen’s Compensation Act, 1918, Chapter 5, assented to April 13, 1918, extracts (ss. 1-30) 38. Workers’ Compensation Act, RSA 2000, c. W-15, ss. 1(1)(a), 6, 13.2(6)(b), 13.4, 46, 154 39. Order in Council 309/93