Nova Scotia Court of Appeal
Citation: Nova Scotia (Workers’ Compensation Board) v. Rhodenizer, 2015 NSCA 15
Date: 20150210
Docket: CA 425752
Registry: Halifax
Between:
Workers’ Compensation Board of Nova Scotia
Appellant
v.
Wade Rhodenizer, the Nova Scotia Workers’ Compensation
Appeals Tribunal, the Attorney General for the Province of
Nova Scotia and ABCO Industries Limited
Respondents
|
Judges: |
Fichaud, Farrar and Scanlan, JJ.A. |
|
Appeal Heard: |
October 15, 2014, in Halifax, Nova Scotia |
|
Held: |
Appeal allowed per reasons for judgment of Farrar, J.A.; Fichaud and Scanlan, JJ.A. concurring. |
|
Counsel: |
Paula Arab, Q.C. and Roderick (Rory) H. Rogers, Q.C., for the appellant Jane Spurr and Kenneth H. LeBlanc, for the respondent Wade Rhodenizer Alison Hickey, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal Sharon Whynot, for the respondent ABCO Industries not participating Edward A. Gores, Q.C., for the respondent Attorney General of Nova Scotia not participating |
Reasons for judgment:
[1] This appeal raises a discrete legal issue with respect to the interpretations of ss. 73 and 185 of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10. The question is whether an extended earnings-replacement benefit (EERB) decision is open to re-consideration pursuant to s. 185(2) of the Act.
[2] In my view, it is not. For the reasons that follow I would allow the appeal and set aside the decision below.
Facts
[3] The respondent, Wade Rhodenizer, was employed as a scale service technician with ABCO Industries Limited. He injured his lower back on June 7, 2005. The Workers’ Compensation Board (WCB) determined he had a compensable injury and awarded him temporary earnings-replacement benefits (TERB) until February 9, 2009.
[4] In a decision dated February 18, 2009, Mr. Rhodenizer was awarded an EERB representing the difference between his pre-injury earnings and his capability to earn income post-injury.
[5] In the decision, the Case Worker reasoned that Mr. Rhodenizer was earning $600.19 per week prior to his injury and she estimated he was capable of earning $278.60 per week post-injury as a customer service representative. In the end result, she calculated his EERB to be $1,131.39 per month.
[6] Mr. Rhodenizer appealed the determination of the amount of his EERB to a hearing officer. By decision dated June 23, 2009, the hearing officer dismissed his appeal.
[7] He then appealed the hearing officer’s decision to the Nova Scotia Workers’ Compensation Appeals Tribunal (WCAT). (The appeal also concerned Mr. Rhodenizer’s pain-related impairment, however, that is not in issue in this appeal).
[8] In a decision dated October 15, 2009 (WCAT #2009-549-AD), WCAT dismissed Mr. Rhodenizer’s appeal. As a result, the amount of Mr. Rhodenizer’s EERB became a final decision and the monthly award referred to above became effective on February 9, 2009.
[9] Pursuant to s. 73 of the Act and Board Policy No. 3.4.2R1, all EERBs are subject to a 36 month review and, if directed by the Board, a further review at 60 months.
[10] On the 36 month review, Mr. Rhodenizer’s EERB was reduced to $766.64 as a result of him receiving disability benefits under the Canada Pension Plan.
[11] Mr. Rhodenizer appealed the decision to reduce his EERB to a hearing officer. In a decision dated December 11, 2012, the hearing officer upheld the decision to reduce the EERB.
[12] Mr. Rhodenizer then appealed the hearing officer’s decision to WCAT. It was on the WCAT appeal that a January 18, 2013 report from Tom Stanley, a physiotherapist who did a functional evaluation on Mr. Rhodenizer, was provided to WCAT. In his report Mr. Stanley opined that Mr. Rhodenizer was not capable of working as a customer service representative as found by the WCB.
[13] In its decision dated April 22, 2013, WCAT allowed the appeal and agreed with Mr. Stanley, concluding that Mr. Rhodenizer was not capable of working as a customer service representative. Therefore, it ordered the WCB to recalculate his EERB without any deemed earnings.
[14] It also directed the WCB to consider whether the Stanley report might be considered new evidence so as to permit a review and consideration of the EERB award from the time when it was originally awarded pursuant to s. 185(2) of the Act. In particular, the WCB was directed to consider the appropriateness of originally deeming Mr. Rhodenizer to be able to earn income as a customer service representative.
[15] The Case Manager did as instructed and re-calculated the EERB to a monthly amount of $1,869.78 effective as of the date of the 36 month review. She did not change the WCB’s original February 18, 2009 decision.
[16] Mr. Rhodenizer appealed that decision to a hearing officer seeking to have the original EERB decision overturned based on the Stanley report. In a decision dated May 29, 2013 the Hearing Officer declined to reconsider the initial EERB award. In doing so she relied on s. 73 of the Act and found that an EERB could only be reviewed 36 months after its initial determination and then, if the Board considered it appropriate, 24 months thereafter. In other words, once the initial EERB award was made, it could not be altered until the 36-month review. The Hearing Officer further explained that information presented at the 36-month review was only relevant to changing the EERB on a go-forward basis.
[17] The matter found its way up to WCAT for the third time. By decision dated February 27, 2014 (WCAT #2013-377-AD), WCAT found that the review provisions in s. 185 of the Act could be interpreted broadly enough to permit reconsideration of an EERB at any time and was not limited by the provisions of s. 73.
[18] I will set out and discuss in detail s. 185 and s. 73 when addressing the issue under appeal.
[19] By consent of the parties, this Court granted leave to appeal on May 8, 2014.
[20] It is with this backdrop I will now turn to consider the issue on this appeal.
Issue
[21] There is one issue on this appeal:
Did the WCAT commit a reviewable error in concluding that a final EERB award can be reviewed and adjusted at any time for “new evidence”, despite the language of ss. 73 and 185 of the Workers’ Compensation Act and Policy 8.1.7 R2?
Standard of Review
[22] It is well settled and not disputed by any of the parties to this appeal that where, as here, WCAT’s decision involves a question relating to the interpretation of the Workers’ Compensation Act, the standard of review is reasonableness.
[23] The reasonableness standard of review requires a court to read a tribunal’s reasons, together with the outcome, to determine whether the result falls within range of possible outcomes (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62).
Analysis
[24] I will start the analysis by setting out the text of the applicable provisions:
Jurisdiction and powers of Board
185(1) Subject to the rights of appeal provided in this Act, the Board has exclusive jurisdiction to inquire into, hear and determine all questions of fact and law arising pursuant to this Part, and any decision, order or ruling of the Board on the question is final and conclusive and is not subject to appeal, review or challenge in any court.
(2) Notwithstanding subsection (1) but subject to Sections 71 to 73, the Board may
(a) reconsider any decision, order or ruling made by it; and
(b) confirm, vary or reverse the decision, order or ruling.
Review of extended earnings-replacement benefit
73(1) Subject to subsection (2), the Board may review and adjust its determination of the amount of compensation payable to a worker as an extended earnings-replacement benefit
(a) once, commencing in the thirty-sixth month after the date of the initial award of the benefit;
(b) once, commencing in the twenty-fourth month after a review pursuant to clause (a) is completed, if at the time the review pursuant to clause (a) is completed the Board is of the opinion that a further review is necessary;
(c) after a review of the permanent-impairment rating of the worker pursuant to subsection 71(1) results in an adjustment of the permanent-impairment rating of at least ten percentage points according to the schedule established pursuant to Section 34; and
(d) at any time, where the extended earnings-replacement benefit was based on a misrepresentation of fact.
(2) The Board shall not vary the amount of compensation payable as an extended earnings-replacement benefit unless the amount of the variation would be equal to at least ten per cent of the amount of compensation being paid at the time of review.
(2A) Notwithstanding subsections (1) and (2), where a worker’s permanent-impairment benefit is adjusted pursuant to Section 71, the Board may adjust the amount of compensation payable as an extended earnings-replacement benefit pursuant to this Section so that the adjusted permanent-impairment and extended earnings-replacement benefits total eighty-five per cent of the loss of earnings calculated pursuant to Section 38.
(3) An award of an extended earnings-replacement benefit is final, subject to subsection (1), and shall not be further reviewed or adjusted. [Emphasis added]
...
[25] Section 183 of the Act allows the Board to adopt policies to guide it in the application of the Act or the Regulations. It has done so with respect to s. 73 in Policy 3.4.2R1, effective September 4th, 2004. The applicable provisions provide:
1. Extended Earnings-Replacements Benefits (EERBs) will be reviewed 36 months after the date the EERB was determined.
2. …
3. An EERB may be reviewed 24 months after the 36-month review, if it is determined to be necessary by the Board at the time of the 36 month review. As a general guideline, an EERB will be reviewed a second time if the worker has not established a consistent earnings pattern during the first 36 months the worker was in receipt of the EERB or the worker has shown significant deterioration in his/her compensation condition. The Board may choose not to set another review date if the information on the file indicates the worker’s employment pattern, although casual or seasonal, is still an established pattern.
[26] Despite the permissive wording, “the Board may review” in s. 73(1) of the Act the policy directs that the Board “will” review the EERB after 36 months.
[27] All parties agree that the determination of the issue on appeal is one of statutory interpretation involving the interaction of s. 73 and s. 185(2) of the Act.
[28] The Supreme Court of Canada has repeatedly cited the “modern approach” to statutory interpretation as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
(see Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559 at ¶26 citing Driedger’s, Construction of Statutes (2nd, 1983)).
[29] In Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General), 2009 NSCA 44, MacDonald, C.J.N.S. does an in depth analysis of the rules of statutory interpretation (¶36-42). His analysis suggests there are three questions to be answered under the modern principles of statutory interpretation. They are:
1. What is the meaning of the legislative text?
2. What did the legislature intend? What did it hope to achieve? What intention did it have with respect to the facts of this case?
3. What are the consequences of adopting a proposed interpretation?
[30] MacDonald, C.J.N.S. also refers to Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) which invites us to apply the various rules of statutory interpretation in answering these three questions. Two of those rules of statutory interpretation are particularly relevant here: the presumption against tautology and the presumption against absurdity or absurd results; the former because WCAT either ignored or failed to give meaning to words found in the Act, the latter because WCAT relied on it to support its interpretation of the interaction between s. 185(2) and s. 73.
[31] In discussing the presumption against tautology Professor Sullivan tells us:
It is presumed that the Legislature avoids superfluous or meaningless words, that it does not pointless repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. ...
As these passages indicate, every word and provision found in a statute is supposed to have meaning and a function. For this reason courts should avoid, as much as possible, adopting interpretations that would render any portion of the statute meaningless or pointless or redundant. [Sullivan on the Construction of Statutes, supra, p. 210 (Citations omitted)]
[32] With respect to the presumption against absurdity or absurd results Professor Sullivan has this to say:
Interpretation involves the application of legislation to facts in ways that affects the well-being of individuals and communities for better or worse. Not surprisingly the courts are interested in knowing what the consequences will be in judging whether they are acceptable. Consequences judged to be good are presumed to be intended and generally are regarded as part of the legislative purposes. Consequences judged to be contrary to accepted norms of justice or reasonableness are labelled absurd and are presumed to have been unintended. ... [Sullivan, supra, p. 299]
The court’s jurisdiction to avoid absurd results parallels and complements its jurisdiction to promote legislative purpose. Whereas purposive analysis justifies the preference for interpretations that lead to good consequences, which are presumed to be intended, avoiding absurdity justifies the rejection of interpretations that lead to bad consequences which are presumed not to be intended. [Sullivan, at p. 317]
[33] WCAT correctly identified the questions it had to answer. After citing CBRM, supra; it goes on to answer the three questions. I will summarize WCAT’s answers to the three questions as follows:
• Meaning of the text – the words “Subject to” contained in s. 185(2) means dependant or conditional upon the Board’s power to review and adjust an EERB under s. 73 (p. 7).
• Legislative intent – WCAT posits two potential interpretations of the legislative intent. The first is that ss. 71 to 73 of the Act are a complete Code. The second is that s. 185(2) applies to EERB determinations insofar as its application is not inconsistent with s. 73 (p. 8).
• Consequences of Interpretation – WCAT considered it implausible or inconceivable that the Legislature could intend for EERB decisions to be subject merely to a right of appeal and the review provisions designated specifically for them (pp. 8-9).
[34] WCAT then concludes its analysis as follows:
The Panel is of the view that by making s. 185(2) subject to ss. 71-73, the Legislature could not have intended to remove the possibility of a reconsideration of a decision from the Act. Instead, the Legislature gave the Board a general discretion to reconsider, and created some mandatory review provisions. The ability to reconsider is a discretionary remedy; whereas the review provisions are obligatory, provided the necessary pre-conditions are met.
The Panel’s interpretation of s. 185(2) and Policy 8.1.7R2 would grant discretion to the Board to consider a final EERB decision (provided new evidence was received) outside of the statutory review periods in s. 73. In the Panel’s view, the “subject to ... language in s. 185(2) merely speaks to the fact that the Board’s ability to review and adjust is no longer discretionary once the time period and/or other requirements necessary to trigger reviews under ss. 71-73 are met. In the case of an EERB, once 36 months passes from the original EERB decision, it will be reviewed and adjusted. This is not discretionary, but mandated by the section. New evidence is not required to authorize this type of review. [Underlining mine]
[35] In other words, the WCB can reconsider an EERB decision at any time if there is new evidence which would justify overturning the initial decision, but it must review the decision when the triggering circumstances in s. 73 arise.
[36] With respect, WCAT’s analysis is fundamentally flawed.
[37] WCAT’s starting point – that the Legislature created mandatory review provisions – is clearly wrong. Subsections 73(1)(a)-(d) set out situations in which the Board “may” review its determinations. The wording of the Act is not mandatory at all. The 36-month review is only required by virtue of policy 3.4.2R1, not by the legislation. The “mandatory review” referred to by WCAT is not mandated by the Act and cannot be the springboard for its interpretation.
[38] Even if the only way s. 185(2) is subject to s. 73 is that the option to re-open a decision is no longer discretionary at 36 months then, presumably, a s. 185(2) reconsideration would be available at any time either before or after the time periods in s. 73. WCAT’s decision stands for the proposition that any time there is new evidence that might have impacted the original decision, the WCB can use s. 185(2) to review the original decision and make the award retroactive when it would not otherwise have been.
[39] Allowing for reconsideration of EERB awards at any time leaves no room for an understanding of s. 185(2) as “subject to” any of the provisions in s. 73 of the Act. I will explain further.
[40] In reaching its conclusion, WCAT overlooked the clear and explicit language in s. 73(1)(c) and (d) which allows for review of an EERB in two specific circumstances:
1. When a review of the permanent impairment rating of the worker pursuant to s. 71(1) results in an adjustment of that permanent impairment rating at least 10 percentage points (s. 73(3)); and
2. At any time where the extended earnings-replacement benefit was based on a misrepresentation of fact (s. 73(1)(d)).
[41] This is further reflected in Policy 3.4.2R1, referred to earlier which provides:
An EERB may be reviewed at any time if:
(a) a review of a permanent impairment rating results in an adjustment to the Permanent Impairment rating of at least ten percentage points, or
(b) it is determined the EERB was based on misrepresentation of fact.
[42] Section 73 illustrates that the Legislature turned its mind to when EERBs may be reviewed and has limited it to the two circumstances in s. 73(1)(c)-(d).
[43] This also finds support in Policy 8.1.7R2 which addresses when a reconsideration may take place under s. 185(2). Before citing the provisions of Policy 8.1.7R2, it is helpful to look at the force and effect of policies under the Act. Section 183(5) provides:
(5) Until a different policy is adopted, every policy adopted by the Board of Directors pursuant to subsection (2) is binding on the Board itself, the Chair, every officer and employee of the Board and on the Appeals Tribunal.
(5A) Notwithstanding subsection (5), a policy adopted by the Board is only binding on the Appeals Tribunal where the policy is consistent with this Part or the regulations.
[44] In addressing Policy 8.1.7R2, WCAT says:
The Panel finds that the review and adjust provision in s. 73 does not preclude the Board from exercising its reconsideration power under s. 185(2). In the present case, the Hearing Officer had the jurisdiction under s. 185(2) and Policy 8.1.7R2 to consider whether Mr. Stanley’s report is new evidence and, if so, whether it warrants a reconsideration of the original EERB decision. (p. 9)
[45] I now turn to Policy 8.1.7R2 which provides:
(5) The discretion of the Board to reconsider a decision, order or ruling made by it, pursuant to s. 185(2), is subject to the limitation on the Board’s discretion to review compensation payable as a permanent impairment benefit, a temporary earnings-replacement benefit and an extended earnings-replacement benefit as set out in ss. 71-73 of the Act. [Underlining mine]
[46] WCAT does not refer to this provision in its decision. The explicit statement that the WCB’s discretion to reconsider is subject to the “limitation” to review compensation payable as set out in s. 73 bolsters the interpretation that the review provisions in s. 73 are a complete code. In my view, this, again, supports the view that EERB decisions are limited to the review provisions in s. 73.
[47] Finally, s. 73(3), and I will repeat it for convenience, provides:
(3) An award of an extended earnings-replacement benefit is final, subject to subsection (1), and shall not be further reviewed or adjusted.
[48] Although WCAT recites this provision in its decision, it does not address it in its analysis when interpreting the legislative text. This provision makes it clear that an award of an EERB is final subject only to the reviews as set out in s. 73(1).
[49] In the course of its decision, the panel held that “clear and explicit language” would be necessary to prohibit reconsideration of decisions covered by ss. 71-73 (p. 8).
[50] Section 185(2) makes it expressly subject to s. 73; s. 73 sets out its own review mechanisms for the benefits awarded under that section. Section 73(3) makes an award final subject to the provisions of that section.
[51] With all due respect, I am unsure what more the Legislature could have done to exclude s. 73 from the operation of s. 185(2).
[52] WCAT’s decision appears to be anchored in its conclusion that the Legislature could not have intended to preclude review of an EERB award at any time on the basis of “new evidence”. Essentially, it concluded that such an interpretation would amount to an absurd and unfair result to workers, particularly in light of the importance of EERB benefits. It said:
In the Panel’s view, this interpretation would pose a significant limitation on the ability to reconsider Board decisions, covering a wide swath of decisions pertaining to, arguably, the most important types of benefits payable on a claim.
Given the importance of these benefits, it is difficult to accept that by making s. 185(2) subject to ss. 71-73, the Legislature intended to extinguish the power to reconsider original decisions regarding benefits covered by ss. 71-73.
The Panel agrees with the Adviser. She argues that clear and explicit language is necessary to restrict compensation in this manner, which is not present in the Act. Hence, the Panel does not accept the Board’s submission that the language of s. 185(2) means that the reconsideration provisions do not apply to benefits under ss. 71-73.
The Panel is of the view that by making s. 185(2) subject to ss. 71-73 the Legislature could not have intended to remove the possibility of a reconsideration of a decision from the Act. ...
[53] The result of WCAT’s decision is that there never would be any finality to the award of EERB benefits either from the WCB’s point of view, or the worker’s point of view.
[54] WCAT only considered the consequences from one angle – that of the denial of a potentially larger EERB reward to the worker. However, WCAT’s determination could result in an EERB reward being reduced or eliminated altogether on the basis of “new evidence” even after the expiration of the review periods under s. 73. Its analysis assumes all reviews based on new evidence would be beneficial to the worker.
[55] The Legislature has, by its wording, sought to bring finality to what WCAT recognized, as a very important benefit and not subject it to innumerable reviews.
[56] The interpretation put forth by WCAT not only fails to make the discretion to reconsider in s. 185(2) subordinate to the limited discretion to review under s. 73 – it renders the limitations in that section illusory.
[57] In my view, no measure of creative interpretation could make EERB awards subject to reconsideration under s. 185(2) of the Act (Ellsworth v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2013 NSCA 131).
[58] The purpose of the legislation is evident on plain reading of the statute, that is, that the Legislature did not intend that EERBs would be subject to reconsideration under s. 185(2) and that it intended to bring finality to these awards through the provisions of s. 73.
[59] In my respectful view, WCAT’s conclusion does not occupy the range of possible interpretive outcomes of the legislation. WCAT’s finding that EERB awards are subject to review under s. 185(2) is unreasonable. I would set aside the decision of WCAT and reinstate the decision of the Hearing Officer.
Farrar, J.A.
Concurred in:
Fichaud, J.A.
Scanlan, J.A.