Court of Appeal

Date:  20020617

Docket:  CA 177445

                                NOVA SCOTIA COURT OF APPEAL

[Cite as: Michelin North America (Canada) Inc. v.  Nova Scotia (Workers’ Compensation Board), 2002 NSCA 87]

                          Glube, C.J.N.S.; Freeman and Hamilton, JJ.A.

BETWEEN:

MICHELIN NORTH AMERICA (CANADA) INC.

Appellant

                                                          - and -

RICHARD ROSS, THE NOVA SCOTIA WORKERS’ COMPENSATION APPEALS TRIBUNAL, and THE WORKERS’ COMPENSATION BOARD OF NOVA SCOTIA

Respondents

                                        REASONS FOR JUDGMENT

Counsel:                          C. Peter McLellan, Q.C. and Kecia Podetz for the appellant

                                      Jane A. Spurr, Terrance Brown and Linda Zambolin for the respondent, Richard Ross

Louanne Labelle for the respondent, Workers’ Compensation Appeals Tribunal

Madeleine F. Hearns for the respondent, Workers’ Compensation Board of Nova Scotia

Appeal Heard:                  June 17, 2002                                                       

Judgment Delivered:         June 17, 2002                                              

THE COURT:                 Leave to appeal granted in part per oral reasons for judgment of Freeman, J.A.; Glube, C.J.N.S. and Hamilton, J.A. concurring.

FREEMAN, J.A. (Orally):

[1]              This is an application for leave to appeal, pursuant to s. 256 of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10, a decision by the Workers’ Compensation Appeals Tribunal, that symptoms related to shiftwork maladaption syndrome can constitute an injury as defined in s. 2 of the Act.

[2]              The appellant relies on two of the eight grounds of appeal submitted as issues, as revised in the course of the hearing, namely issues three and four.  Issue number three is that the Tribunal exceeded its jurisdiction and committed an error of law in its interpretation and application of Metropolitan Entertainment Group v. Durnford (2000), 188 N.S.R. (2d) 318 (C.A.) by finding that a personal condition, shiftwork maladaption syndrome, which is not caused or aggravated by work can be compensated under the Act; and number four, that the Tribunal committed an error of law in its interpretation and application of s. 187 of the Act. 

[3]              The burden on an applicant for leave is to show that an arguable issue exists see:  Amirault v. Westminer Canada Ltd., [1993] N.S.J. No. 329 (C.A.).  If an arguable issue is raised it is not for this court on a leave application to consider the merits or to speculate as to the outcome of the appeal.

[4]              We are satisfied that the grounds listed above namely grounds three and four raise arguable issues. 

[5]              The decision with respect to which leave is sought raises a novel ground  for awarding workers’ compensation and may have far reaching consequences.  We hereby grant leave to appeal with respect to the two listed grounds.

Freeman, J.A.

Concurred in:

Glube, C.J.N.S.

Hamilton, J.A.