NOVA SCOTIA COURT OF APPEAL
Citation: Pelley v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2008 NSCA 46
Date: 20080515
Docket: CA 286420
Registry: Halifax
Between:
Angela Pelley
Appellant
v.
Nova Scotia Workers’ Compensation Appeals Tribunal and
the Workers’ Compensation Board of Nova Scotia
Respondents
Judges: Cromwell, Oland and Fichaud, JJ.A.
Appeal Heard: April 2, 2008, in Halifax, Nova Scotia
Held: Appeal allowed per reasons for judgment of Cromwell, J.A.; Oland, J.A. concurring; Fichaud, J.A. dissenting.
Counsel: Linda L. Zambolin and D. William MacDonald, for the appellant
Andrew MacNeil, for the respondent Nova Scotia Workers’ Compensation Appeals Tribunal
Paula Arab and Madeleine Hearns, for the respondent Workers’ Compensation Board of Nova Scotia
Reasons for judgment:
I. INTRODUCTION:
[1] This appeal raises a narrow, but thorny question of statutory interpretation. It concerns the appellant’s eligibility to receive earnings-replacement benefits beyond the age of 65. In my respectful view, the appellant is entitled to the benefits she claims because the Workers’ Compensation Appeals Tribunal (WCAT) has misinterpreted the relevant provision of the Workers’ Compensation Act, S.N.S. 1994-95, c. 10, as am. (“Act”). For the reasons which follow, I would allow the appeal.
II. THE ISSUE AND STANDARD OF REVIEW:
[2] At issue is whether, as the Board contends and WCAT decided, the appellant’s earning-replacement benefits should end when she turned 65. The answer depends on the interpretation of s. 37(10) of the Act. To understand the precise question in issue, it is necessary to place s. 37(10) in the context of some other provisions.
[3] Workers’ compensation earnings-replacement benefits are payable when a worker suffers a loss of earnings resulting from an injury: s. 37(1). Section 37(1) provides:
37 (1) Where a loss of earnings results from an injury, an earnings‑replacement benefit is payable to the worker in accordance with this Section.
[4] A single injury may result in more than one period of earnings loss. For example, a worker may return to work following an initial period of earnings loss but then have to leave work again, suffering a further period of earnings loss because of the ongoing or recurrent effects of the injury.
[5] The Act does not distinguish, for eligibility purposes, between “initial” and “subsequent” earnings losses flowing from a single injury. In either type of situation, eligibility is determined by s. 37(1), which refers simply to “a loss of earnings” resulting from “an injury”. As we shall see, the Act distinguishes between initial and subsequent earnings losses only for the purposes of calculation of the benefits: s. 40; s. 75(2).
[6] Normally, earnings-replacement benefits cease when the worker turns 65: s. 37(9). However, there is an exception to this general rule, provided for in s. 37 (10), which applies when the worker is 63 years of age or older “... at the commencement of the worker’s loss of earnings...”. The question on appeal is whether this exception is limited to initial losses of earnings which occur at age 63 or older, as WCAT has decided, or whether, as the appellant contends, this exception applies to all losses of earnings – initial or subsequent – which occur at age 63 or older.
[7] I would state the issue on appeal as follows:
Did WCAT err by interpreting the words “.. at the commencement of the worker’s loss of earnings...” in s. 37(10) of the Act as referring only to an initial loss of earnings following an injury and not to a recurring loss of earnings resulting from an injury for which earnings loss benefits have previously been paid?
[8] I agree, for the reasons given by Fichaud, J.A., that WCAT’s answer to this question of law should be reviewed on appeal for correctness. It does not necessarily follow, however, that all questions of law that WCAT confronts in the course of its work will necessarily be reviewed on appeal according to the correctness standard.
III. ANALYSIS:
A. Facts:
1. Injury and benefits:
[9] The worker suffered a compensable injury in May of 2003. She was 62. She was off work for various periods when she became unable to continue her employment as a result of the May, 2003 injury. She returned to work, but had to stop. She received earnings-replacement benefits effective August 1, 2005. These were “subsequent” or “recurring” benefits attributable to her May, 2003 injury. Thus, her “initial” period of earnings loss occurred before she turned 63, but she experienced a subsequent period of earnings loss resulting from the same injury after she turned 63.
2. Decisions:
[10] The Board’s Claim Adjudicator, the Hearing Officer and WCAT all upheld, for essentially the same reason, the Board’s decision to terminate benefits on the appellant’s 65th birthday. It was common ground that, by virtue of s. 37(9), the appellant’s benefits would terminate at age 65 unless she fell within the exception set out in s. 37(10):
(9) Subject to subsection (10) and Sections 72 and 73, earnings‑replacement benefits are payable until the earlier of
(a) the date the Board determines that the loss of earnings has ended or no longer results from the injury; and
(b) the date the worker attains the age of sixty‑five years.
(10) Where a worker is sixty‑three years of age or older at the commencement of the worker's loss of earnings, the Board may pay the earnings‑replacement benefits for a period of not more than twenty‑four months following the date the loss of earnings commences.
(Emphasis added)
[11] All decision-makers found she did not fall within the s. 37(10) exception. The appellant’s initial loss of earnings had occurred in May, 2003 when she was 62 years of age. It followed, they thought, that “...the commencement of [her] loss of earnings” had occurred before she reached 63 years of age or older, not after, as required by s. 37(10). This was because, in their view, the words “the commencement of [her] loss of earnings” refers only to an initial loss of earnings at age 63 or older, not to a subsequent one as experienced by the appellant.
B. The Board’s Position:
[12] The Board’s position is that “the commencement” of the worker’s loss of earnings, as referred to in s. 37(10), must be understood as being an initial loss of earnings. Three main arguments are advanced in support of this view. First, the Board submits that the appellant’s interpretation is contrary to the purpose of the provision and creates absurd results. Second, the Board argues that s. 37(1), read with s. 37(10), supports its interpretation. Finally, it is submitted that s. 75(2) supports the Board’s interpretation.
C. Analyis of Board’s Position:
[13] The Act must be interpreted according to Elmer Driedger’s modern approach. The words of the 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 [the legislature]...”.: see, e.g. Bell ExpressVu Ltd. Partnership v. Rex, [2002] 2 S.C.R. 559 at paras. 26 - 30. Taking this approach, my view is that the Board’s interpretation of s. 37(10) cannot be accepted.
1. The scheme and object of the Workers’ Compensation Act:
[14] Workers’ compensation legislation is remedial legislation. It was enacted to address the insecurity and delay inherent in leaving compensation for workplace injuries to the law of torts as administered by the courts. The object of workers’ compensation schemes is to provide quick, secure, no-fault compensation for work injuries in exchange for providing immunity from law suits to the employers who fund the scheme: Pasiechnuyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890 at paras. 23-31. The worker’s entitlement to benefits conferred by the Act “... should be construed liberally in favour of all... within its purview”: The Workmen’s Compensation Board v. Theed, [1940] S.C.R. 553 at 574.
[15] Section 37(10) confers compensation when it would otherwise terminate at age 65 by virtue of s. 37(9). Section 37(10) is therefore a benefit-conferring provision which should be read liberally in order to achieve its compensatory purpose. As was said long ago, “... the Courts will be slow to cut down the remedy given ... by adopting an interpretation which will introduce exceptions not made by the legislature.”: Halsbury’s Laws of England , 2nd ed., vol. 34, p. 799 cited in Workers’ Compensation Appeal Board v. Penney (1980), 38 N.S.R. (2d) 623 (S.C.A.D.) at 627.
[16] The Board submits that the appellant’s reading of s. 37(10) leads to an absurd result which is not consistent with the legislative purpose. I cannot agree.
[17] The purpose of s. 37(10) is to recognize that not all workers will retire at age 65. The section provides the Board with a discretion to continue paying earnings-replacement benefits in the case of workers who experience earnings loss at age 63 or older. The Board submits, however, that permitting benefits to be extended under s. 37(10) in the case of recurrence of a loss of earnings at age 63 or older could lead to the absurd result of earnings-replacement benefits that would never end in spite of the legislative cap of 24 months imposed by s. 37(10). As the Board put it in its factum:
[38] ... If one was to accept the Appellant’s argument that the commencement of the loss of earnings is from the date of the recurrence, this would defeat the legislative intent to terminate earning loss benefits at age 65. If the commencement of the loss of earnings is from the date of the recurrence a worker could continue to receive earnings loss benefits for life. In these circumstances, earnings replacement benefits would never end.
[18] Respectfully, this argument cannot succeed for three reasons.
[19] First, contrary to the Board’s submission, there is no legislative intent to terminate earnings-replacement benefits at age 65. Section 37(10) expressly provides for continuation of benefits beyond age 65.
[20] Second, the Board is afforded discretion under s. 37(10) to ensure that benefits paid beyond age 65 are consistent with the statutory purpose. Unlike the entitlement provision in s. 37(1), s. 37(10) makes the payment of earnings loss benefits under that subsection discretionary: it provides that “the Board may pay the earnings-replacement benefits”.
[21] Third, for an earnings-replacement benefit to be payable, the worker must experience earnings loss resulting from an injury as required by s. 37(1). Under s. 37(9)(a), benefits are payable until “... the date the Board determines that the loss of earnings has ended.” The benefit ends once the worker can no longer be said to be experiencing earnings loss because of the injury. Thus, the benefit would only be payable to a worker who actually was working or had intended to work at the relevant time. The Board’s submission that earnings-replacement benefits would “never end” overlooks this requirement.
[22] Of course, one can formulate examples in which the operation of s. 37(10) appears arbitrary. But this sort of arbitrariness is a component of any bright-line test for eligibility. It is not a product of extending the benefit of s. 37(10) to those who suffer a recurring, as well as an initial, loss of earnings at age 63 or older. In any event, not all of the examples one can formulate support the Board’s interpretation; adopting the Board’s interpretation would also give rise to anomalous situations. Consider the example of two workers suffering earnings losses two months before their 65th birthday, one an initial injury and loss of earnings and the other a recurrence. On the Board’s interpretation, the worker suffering the recurrence could receive only two months benefits whether or not the wage loss continues, while the other worker could continue to receive benefits for up to 24 months. This difference in treatment does not seem to me to serve any statutory purpose. Similarly, on the Board’s interpretation, an injured worker would not be entitled to benefits for a recurrence at or after age 63, but if the same worker sustained a new injury to a different body part, he or she would be entitled to earnings-replacement benefits for a maximum of 24 months in relation to the new injury. This differential treatment does not in my view serve any statutory purpose.
[23] I cannot accept the Board’s submission that the worker’s proposed interpretation of s. 37(10) leads to absurd results which are not consistent with the Act’s purpose.
2. The grammatical and ordinary sense of the words:
[24] Section 37(10) confers on the Board a discretion to continue earnings-replacement benefits beyond age 65 to workers who are “sixty-three years of age or older at the commencement of the worker’s loss of earnings.” As noted, this is in spite of the general rule that such benefits cease at age 65 as set out in s. 37(9)(b). For convenience, I will set out these two subsections:
(9) Subject to subsection (10) and Sections 72 and 73, earnings‑replacement benefits are payable until the earlier of
(a) the date the Board determines that the loss of earnings has ended or no longer results from the injury; and
(b) the date the worker attains the age of sixty‑five years.
(10) Where a worker is sixty‑three years of age or older at the commencement of the worker's loss of earnings, the Board may pay the earnings‑replacement benefits for a period of not more than twenty‑four months following the date the loss of earnings commences.
[25] When does a worker’s loss of earnings commence? The word “commence” means to “begin” and the commencement is the beginning. The worker’s loss of earnings begins when he or she experiences loss of earnings resulting from an injury. A worker, however, may experience more than one loss of earnings resulting from the same injury. In my view, the grammatical and ordinary sense of the word “commence” applies equally to the beginning of each such period of earnings loss resulting from an injury. Each such earnings loss period “begins” when it is experienced and ends when the injury no longer results in a loss of earnings. The triggering event for s. 37(10), as with s. 37(1), is the earnings loss, not the date of the injury which gives rise to it.
[26] I do not agree with WCAT that there is anything about the grammatical and ordinary sense of the word “commencement” that “... is more consistent with referring to the initial loss of earnings than a recurrence of a loss of earnings.” (WCAT reasons page 3). On the contrary, earnings loss, like the entitlement to earnings-replacement benefits, begins when “... earnings loss results from an injury” — in other words, when it is experienced — whether it is an initial loss or a recurrence of a loss resulting from an injury.
[27] The Board submits that s. 37(10) must be read in conjunction with s. 37(1) which sets out the basic rule of entitlement to earnings-replacement benefits. The Board’s position is that s. 37(1) indicates that the loss of earnings must “result from an injury” and that if those words are inserted into s. 37(10), it becomes clear that the section applies only to an initial loss of earnings. With that addition, the relevant clause of s. 37(10) would read: “ ... at the commencement of the worker’s loss of earnings from an injury ... ”.
[28] I agree with the Board that a loss of earnings must result from an injury. But that is true of both initial and recurring losses of earnings. In my view, even if one inserts the words “from an injury” into s. 37(10), this does not assist the Board’s position. The words simply reiterate the requirement that earnings loss must result from an injury. This does not support the position that such losses commence only at the time of the initial loss of earnings following the injury.
[29] The use of the word “commences” elsewhere in the Act shows that the word is apt to describe the beginning of either an initial or a recurring loss of earnings. The word is used to refer to the beginning of an initial loss of earnings in s. 40(3). However, in s. 75(2) the word “commences” is used to refer to the beginning of a recurring earnings loss.
[30] In my view, there is nothing in the ordinary and grammatical sense of the words of s. 37(10) which restricts the sense of the word “commencement” to an initial earnings loss as opposed to a subsequent earnings loss resulting from the same injury. Moreover, the use of the word “commences” in ss. 40(3) and 75(2) shows that it may refer to the beginning of either type of earnings loss.
[31] The appellant had several earnings losses resulting from the same injury. One commenced in May of 2003 and ended in January of 2004. Another commenced in August, 2005 when she was 64 years of age, that is, 63 years of age or older as required by s. 37(10). In my view, the word “commencement”, as a matter of ordinary usage and usage within this Act, is apt to describe the beginning of any period of earnings loss whether initial or recurring.
3. The provision in context:
[32] The Board submits that when s. 37 is read in light of s. 75 of the Act, it is apparent that s. 37(10) refers only to initial losses of earnings. I do not accept this argument. In my view, s. 75, and certain other sections of the Act that I will mention in a moment, show that the Legislature expressly differentiated between initial and subsequent earnings loss when it intended to make this distinction. There is no such distinction made in s. 37(10). In my view, the absence of any distinction there supports the appellant’s argument that no such distinction was intended in s. 37(10).
[33] Section 75 deals with a particular aspect of how to calculate an earnings- replacement benefit for a recurring earnings loss. This is a departure from the general rule on this subject set out in s. 37. Before dealing specifically with s. 75, it will be helpful to explain this general rule.
[34] The general rule, set out in ss. 37(4), (5) and (6), is that there is a “waiting period” before compensation becomes payable for earnings loss. That period, as set out in s. 37(4), is the period during which the worker would have received two fifths of the worker’s net average weekly compensation. If, however, the loss of earnings persists for more than five weeks, the compensation includes this waiting period. For ease of reference, these sections are set out here:
(4) Notwithstanding subsection (1), the Board shall not pay compensation pursuant to subsection (1) until the worker who is injured is unable to continue to work with the employer for whom the worker was working when the injury occurred for a period of time during which the worker would have received remuneration from that employer equivalent to two fifths of the worker's net average weekly compensation.
(5) The Board shall not pay compensation to a worker in respect of the period of time referred to in subsection (4) except as provided for in subsection (6).
(6) Where a loss of earnings results from an injury for more than five weeks, the Board shall pay to the worker the amount deducted pursuant to subsection (4).
[35] Section 75(1) affirms that this general rule applies, but also creates an exception. The exception relates to the situation in which an earnings-replacement benefit becomes payable in relation to a recurring earnings loss that occurs within one year of the end of an earlier earning loss resulting from that injury. Section 75 provides:
75 (1) Subject to subsection (2), where a temporary earnings‑replacement benefit is payable, it shall be computed in accordance with Section 37.
(2) Where a temporary earnings‑replacement benefit is payable as the result of a recurrence of an injury, compensation shall be computed and be payable from the day on which the loss of earnings resulting from the recurrence commences unless one year has elapsed since the workers temporary earnings‑replacement benefit for the injury ended, in which case, subsection (1) applies.
[36] The Board submits that s. 75, read with s. 37, shows that the Legislature has explicitly provided for situations where recurrences commence either less than or greater than one year from the date of closure of earnings-replacement benefits. My difficulty with this submission, however, is that it supports the opposite of the position for which the Board contends.
[37] As noted earlier, the Act, for the purposes of eligibility, does not distinguish between initial and recurring earnings loss resulting from an injury. Section 37(1), the main entitlement provision, makes no such distinction. Earnings losses resulting from injuries are eligible for earnings-replacement benefits. The same is true of s. 37(10), the entitlement provision relating to benefits beyond age 65. However, the calculation provisions relating to earnings-replacement benefits do make this distinction when there is some need to differentiate between the two types of earnings loss. This suggests to me that where the Legislature intended to make this distinction, it did so expressly. It did not make this express distinction in either s. 37(1) or s. 37(10).
[38] Section 75 is an example. In simple terms, it eliminates the waiting period (under s. 37(4)) where there is a recurrence of earnings loss within a year of the end of earnings-replacement benefits for the same injury. The text of s. 75(2) expressly makes a distinction between initial and recurring income loss for the purposes of the date of commencement of payment by expressly referring to “... a temporary earnings-replacement benefit ... payable as the result of a recurrence of an injury ...”.
[39] Although not relied on by the Board in its submissions, another example may be found in s. 40. It deals with the time at which the worker’s net average earnings are to be considered for the purposes of calculating the loss of earnings under s. 38. Section 40 expressly distinguishes between “initial loss of earnings” and “subsequent loss of earnings” in the context of setting out the point in time the worker’s net average earnings should be considered in each case. Section 40(1), (2) and (3) provide:
40 (1) Subject to subsections (2) and (3), a worker’s net average earnings and maximum earnings are the worker’s net average earnings and maximum earnings as of the date of injury.
(2) Where a worker’s loss of earnings resulting from an injury has ended, and the worker subsequently suffers a loss of earnings
(a) resulting from the same injury; and
(b) the subsequent loss of earnings occurs more than twelve months after the initial loss of earnings has ended,
the worker’s net average earnings and maximum earnings are
(c) the worker’s net average earnings and maximum earnings before the initial loss of earnings; or
(d) the worker’s net average earnings and maximum earnings at the time of the subsequent loss of earnings,
whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.
(3) Where a worker’s loss of earnings resulting from an injury commences more than twelve months after the injury, the worker’s net average earnings are
(a) the worker’s net average earnings and maximum earnings before the injury; or
(b) the worker’s net average earnings and maximum earnings before the loss of earnings commences,
whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.
[40] From these sections, I would infer that where the Legislature intended to distinguish between initial and subsequent (or recurring) loss of earnings, it did so expressly. This intention is not evident in the entitlement provisions (s. 37(1) and s. 37(10)) but is apparent, and expressed in clear terms, in certain provisions dealing with calculation of the benefits (s. 75(2) and s. 40). I do not think we should read in any legislative intent to make this distinction in s. 37(10) where the Legislature has not done so expressly, but has done so expressly elsewhere in the statute.
4. Conclusion:
[41] In my view, s. 37(10) applies to workers who experience a loss of earnings that begins at age 63 or older. It is not restricted to workers who experience an initial loss of earnings at that time.
IV. DISPOSITION:
[42] I would allow the appeal, set aside the decision of WCAT and remit the matter to the Board to be dealt with according to law.
Cromwell, J.A.
Concurred in:
Oland, J.A.
Dissenting Reasons:
[43] Upon a recurrence of an earnings loss from an earlier compensable injury under the Workers’ Compensation Act, does the worker’s loss of earnings “commence” anew to calculate the duration of benefits after the worker reaches age 65? In my view the answer is no, and I respectfully disagree with the reasons of my colleagues.
1. Background
[44] In May 2003 Ms. Pelley was employed as a personal care worker with RJF Health Care Services Limited. On May 4, 2003 Ms. Pelley fell off a boardwalk while taking a patient for a walk. The fall injured her shoulder. She was 22 days short of her 62nd birthday.
[45] The Workers’ Compensation Board (Board) accepted Ms. Pelley’s claim and awarded her temporary earnings replacement benefits (TERB) beginning May 5, 2003.
[46] Ms. Pelley was off work until late October 2003. Then she returned to modified duties working four hours per day. On December 16, 2003 the Board’s case worker determined that Ms. Pelley could return to full duties, and ruled that TERB should end on January 5, 2004. A hearing officer upheld the ruling. Ms. Pelley’s TERB ended on January 5, 2004.
[47] In June 2004, Ms. Pelley returned to the workforce as a galley cook on a cruise ship. In July 2004, Ms. Pelley left work because of a recurrence of her earlier shoulder injury. The Board resumed her TERB. This continued until May 25, 2005 when Ms. Pelley returned to work as a cook, and her TERB again terminated.
[48] On August 1, 2005 Ms. Pelley’s earlier shoulder injury again required her to leave work. In October 2005, the Board recommenced her TERB retroactive to August 1, 2005.
[49] Ms. Pelley underwent shoulder surgery December 2005.
[50] May 26, 2006 was Ms. Pelley’s 65th birthday, a significant date for the legal issues in this appeal.
[51] On October 23, 2006 the Board’s claims adjudicator ended Ms. Pelley’s TERB. Section 37(9) of the Workers’ Compensation Act, SNS 1994-95, c. 10, as amended (Act), says that normally earnings replacement benefits end at age 65. The claims adjudicator ruled that Ms. Pelley’s TERB should have ended at her 65th birthday, May 26, 2006. As the benefits to Ms. Pelley from May 26, 2006 to October 2006 were paid by the Board’s oversight, the Board did not seek to recover the overpayment.
[52] Ms. Pelley claimed that her TERB should have continued after May 26, 2006, based on s. 37(10) of the Act:
Where a worker is sixty-three years of age or older at the commencement of the worker’s loss of earnings, the Board may pay the earnings - replacement benefits for a period of not more than twenty-four months following the date that the loss of earnings commences.
Ms. Pelley says that she was over 63 years of age at the “commencement” of her loss of earnings on August 1, 2005, and that s. 37(10) entitles her to earnings replacement benefits for 24 months from August 1, 2005.
[53] Ms. Pelley appealed the termination of her TERB to a hearing officer, who denied her appeal. She appealed further to the Workers’ Compensation Appeals Tribunal (WCAT) which, in a decision of September 11, 2007, dismissed her appeal. The WCAT ruled that the “commencement” of Ms. Pelley’s loss of earnings was May 4, 2003 when she was only 61, so s. 37(10) did not apply. Her entitlement ended at age 65 under the normal rule in s. 37(9). The WCAT said:
I do not think that it was the intention of the Legislature that subsequent earnings-loss after age 63 would be considered the “commencement” of the loss of earnings triggering a possible 24 months of additional earnings-replacement benefits.
The triggering event for s. 37(10) is a worker, aged 63 years or older, suffering an initial loss of earnings. They can be considered for up to 24 months of earnings-replacement benefit from the date of the initial earnings-loss. Otherwise, earnings-replacement benefit entitlement ends at age 65. Other benefits under the Workers’ Compensation Act continue, including annuities for workers receiving an extended earnings-replacement benefit when they turn 65.
[54] Ms. Pelley applied for leave to appeal to this court. Leave was granted by consent on November 26, 2007, and the court has heard Ms. Pelley’s appeal.
2. Issue
[55] The issue is whether the WCAT erred in law by interpreting “at the commencement of the worker’s loss of earnings” in s. 37(10) to mean only Ms. Pelley’s “initial” loss of earnings due to the injury in May 2003, and not to the recurrent loss from that injury on August 1, 2005.
3. Standard of Review
[56] In Dunsmuir v. New Brunswick, [2008] S.C.J. No. 9 the Supreme Court adjusted the standard of review analysis. The decision of Justices Bastarache and LeBel, for five justices, stated the following points.
[57] Correctness and reasonableness are now the only standards of review. (¶ 34)
The ultimate question on the selection of a standard remains whether deference from the court is required to respect the legislative choice to leave the matter in the hands of the administrative decision maker (¶ 49). The court engages in “standard of review analysis”, without the “pragmatic and functional” label (¶ 63).
[58] The first step is to determine whether the existing jurisprudence has satisfactorily determined the degree of deference on the issue (¶ 62, 54, 57).
[59] If the existing jurisprudence is unfruitful, then the court should review the following factors to choose between correctness and reasonableness (¶ 55):
1. Does a privative clause give statutory direction indicating deference?
2. Is there a discrete and special administrative regime for which the decision maker has special expertise? This involves an analysis of the tribunal’s purpose disclosed by the enabling legislation and the tribunal’s institutional expertise in the field (¶ 64).
3. What is the nature of the question? Issues of fact, discretion or policy, or mixed questions of fact and law where the legal issue cannot readily be separated, generally attract reasonableness (¶ 53). Constitutional issues, legal issues of central importance, and legal issues outside the tribunal’s specialized expertise attract correctness. Correctness also governs “true questions of jurisdiction or vires”, ie. “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”. Legal issues that do not rise to these levels may attract a reasonableness standard if this deference is consistent with both (1) any statutory privative provision and (2) any legislative intent that the tribunal exercise its special expertise to interpret its home statute and to govern its administrative regime. Reasonableness may also be warranted if the tribunal has developed an expertise respecting the application of general legal principles within the specific statutory context of the tribunal’s statutory regime. (¶ 55-56, 58-60).
[60] Justices Bastarache and LeBel explained reasonableness:
47 Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
. . .
49 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93. . .
They explained correctness:
50 . . . When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct.
[61] In Puddicombe v. Nova Scotia (Workers’ Compensation Board), 2005 NSCA 62, ¶ 12-31, this court analysed at length the application of these contextual factors respecting the WCAT’s interpretation of provisions in the Workers’ Compensation Act. The court concluded:
31 On standard of review, I would conclude that in determining the applicable, broad legal principles to be deduced from the statutory requirement, WCAT must be correct. However, when applying those broad legal principles to the facts of a particular case, the outcome should be reviewed on the reasonableness standard.
[62] The issue here involves the interpretation of the WCAT’s home statute and the implementation of the administrative scheme for which the WCAT is expected to have both institutional expertise and sensitivity to the nuances of the legislative regime. Section 256(1) says that a decision of the WCAT is appealable to the Court of Appeal on questions of law or jurisdiction. The legislature has acknowledged that this court is to consider whether the WCAT erred in its interpretation of the Act.
[63] Both parties say that this court should apply correctness respecting interpretation of the Act in Ms. Pelley’s appeal.
[64] As Justices Bastarache and LeBel said in Dunsmuir, the first step is to consider whether to draw guidance from the established principles governing the standard of review under the Act. The Puddicombe approach is consistent with the factors outlined in Dunsmuir. The legislation contains no privative clause to exclude issues of law from the consideration of this court. To the contrary, the Act expressly authorizes this court to review issues of law by appeal.
[65] In my view, the WCAT must be correct respecting the broad legal principles deduced from the statutory requirements of the Act. The application of those broad legal principles to the facts would involve a reasonableness standard. The question here involves the interpretation of s. 37(9) and related provisions in the Act. I will review the WCAT’s decision for correctness.
4. Analysis
[66] In R. v. Sharpe, [2001] 1 S.C.R. 45, Chief Justice McLachlin reiterated Dreidger’s often cited “one principle of statutory interpretation”:
[33] . . . However, E. A. Driedger in Construction of Statutes (2nd ed. 1983) best captures the approach upon which I prefer to rely. He recognizes that statutory interpretation cannot be founded on the wording of the legislation alone. At p. 87, Driedger states: "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." Recent cases which have cited the above passage with approval include: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; R. v. Hydro‑Québec, [1997] 3 S.C.R. 213, at para. 144; Royal Bank of Canada v. Sparrow Electric Corp., [1997] 1 S.C.R. 411, at para. 30; Verdun v. Toronto‑Dominion Bank, [1996] 3 S.C.R. 550, at para. 22; Friesen v. Canada, [1995] 3 S.C.R. 103, at para. 10. ...
See also Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, at ¶ 41-54 and decisions of this court applying this principle to the Workers’ Compensation Act cited in Cohen v. Workers’ Compensation Board (N.S.), 2007 NSCA 118, at ¶ 18.
[67] I will consider the plain meaning of s. 37(10), then its legislative context and objective.
Plain Meaning
[68] Section 37(10) says:
(10) Where a worker is sixty‑three years of age or older at the commencement of the worker's loss of earnings, the Board may pay the earnings‑replacement benefits for a period of not more than twenty‑four months following the date the loss of earnings commences.
The words “the loss of earnings” in s. 37(10) refer to the eligibility requirement for earnings replacement benefits stated in s. 37(1):
(1) Where a loss of earnings results from an injury, an earnings‑replacement benefit is payable to the worker in accordance with this Section.
Section 37(10) refers to the commencement of loss of earnings from the injury.
[69] Ms. Pelley’s only injury occurred on May 4, 2003, when she fell off the boardwalk and damaged her shoulder. She did not suffer a new “injury” within s. 37(1) on August 1, 2005. Had she suffered a new injury on that later date, then s. 37(10) would apply. The critical fact is that Ms. Pelley had only one injury on May 4, 2003 that caused recurrent loss of earnings to Ms. Pelley from May 5, 2003 to January 5, 2004, then from July 2004 to May 25, 2005 and a third time beginning on August 1, 2005.
[70] The words “commencement of the loss of earnings” in s. 37(10), in my view, refer to the loss of earnings from the triggering injury, the basic eligibility condition of s. 37(1). The only injury occurred on May 4, 2003. Ms. Pelley’s commencement of her loss of earnings from that injury was on May 5, 2003. On May 5, 2003, she was under 63 years of age. So s. 37(10) does not apply.
Statutory Context
[71] This view is consistent with the statutory context. Recurrent losses of earnings from an injury are discussed in ss. 40 and 75 of the Act. I will discuss how these provisions dovetail with s. 37.
[72] Section 37(11) says that earnings replacement benefits “shall be calculated in accordance with s. 38.” Sections 38-40 are grouped under the heading “Loss of Earnings”. Section 38 says that the worker’s “loss of earnings” is the difference between the worker’s “net average weekly earnings” before the loss of earnings and the “net average weekly amount” the Board determines the worker is receiving or is capable of earning after the loss of earnings commences. Sections 39 and 40 then prescribe the calculation of “net average earnings” for the purpose of ss. 38 and 37(11).
[73] The wording of ss. 40(2) and 40(3) is instructive:
Relevant times
40 . . .
(2) Where a worker’s loss of earnings resulting from an injury has ended, and the worker subsequently suffers a loss of earnings
(a) resulting from the same injury; and
(b) the subsequent loss of earnings occurs more than twelve months after the initial loss of earnings has ended,
the worker’s net average earnings and maximum earnings are
(c) the workers net average earnings and maximum earnings before the initial loss of earnings; or
(d) the workers net average earnings and maximum earnings at the time of the subsequent loss of earnings,
whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury.
(3) Where a workers loss of earnings resulting from an injury commences more than twelve months after the injury, the workers net average earnings are
(a) the workers net average earnings and maximum earnings before the injury; or
(b) the workers net average earnings and maximum earnings before the loss of earnings commences,
whichever appears to the Board to best represent the actual loss of earnings suffered by the worker by reason of the injury. [emphasis added]
[74] Under s. 40(2)(b), after a worker’s “loss of earnings resulting from an injury has ended”, a “subsequent loss of earnings occurs” from the same injury. That is Ms. Pelley’s situation. Section 40(3) discusses a worker whose “loss of earnings resulting from an injury commences more than 12 months after the injury”. Section 40(3) says the initial, though delayed, loss of earnings from the injury“commences”. But section 40(2) uses “occurs”, not “commences”, to describe the recurrent loss of earnings from a single injury.
[75] Subsections 75(1) and (2) correlate with s. 37 the computation of earnings replacement benefits from a recurrent loss of earnings caused by a seminal injury.
Computation and payment of benefit
75 (1) Subject to subsection (2), where a temporary earnings‑replacement benefit is payable, it shall be computed in accordance with Section 37.
(2) Where a temporary earnings‑replacement benefit is payable as the result of a recurrence of an injury, compensation shall be computed and be payable from the day on which the loss of earnings resulting from the recurrence commences unless one year has elapsed since the workers temporary earnings‑replacement benefit for the injury ended, in which case, subsection (1) applies.
[76] Eligibility for TERB is determined by s. 37, not s. 75. That is clear from the opening words of s. 75(2). Section 75(2) prescribes, for a recurrent earnings loss, the application of the formula for calculating the earnings replacement benefits in s. 37. Sections 37(2) through (6) are material:
37 . . .
(2) The amount of any earnings‑replacement benefit payable to a worker is the difference between
(a) an amount equal to seventy‑five per cent of the worker's loss of earnings; and
(b) the amount of any permanent‑impairment benefit payable to the worker pursuant to Section 34.
(3) The amount of any earnings‑replacement benefit payable to a worker after the worker has received compensation pursuant to subsection (2) for a total of twenty‑six weeks is the difference between
(a) an amount equal to eighty‑five per cent of the worker's loss of earnings; and
(b) the amount of any permanent‑impairment benefit payable to the worker pursuant to Section 34.
(4) Notwithstanding subsection (1), the Board shall not pay compensation pursuant to subsection (1) until the worker who is injured is unable to continue to work with the employer for whom the worker was working when the injury occurred for a period of time during which the worker would have received remuneration from that employer equivalent to two fifths of the worker's net average weekly compensation.
(5) The Board shall not pay compensation to a worker in respect of the period of time referred to in subsection (4) except as provided for in subsection (6).
(6) Where a loss of earnings results from an injury for more than five weeks, the Board shall pay to the worker the amount deducted pursuant to subsection (4).
[77] Sections 37(4) to (6) provide that, after an injury, two-fifths of the worker’s weekly earnings (I will say two days’ earnings) are withheld from her earnings replacement benefits. If the worker suffers lost earnings for more than five weeks, then she receives payment for those two days. Further, under ss. 37(2) and (3) the worker’s earnings replacement benefits are 75% of her lost earnings for the first 26 weeks, then rising to 85% after 26 weeks.
[78] Section 75(2) considers the worker who suffers loss of earnings from an injury, then returns to work, but finds that her injury has not sufficiently mended, so she must again leave work, i.e., Ms. Pelley’s situation.
[79] Under the concluding words of s. 75(2), if one year or more has elapsed since the worker’s initial earnings replacement benefits ended, then s. 37 applies in full. The worker must be off work for five further weeks after the recurrence before she can receive the first two days of her lost earnings under ss. 37(4) through (6). Under ss. 37(2) and (3) the worker will receive only 75% of her lost earnings for the first 26 weeks after the recurrence. The recurrence is treated similarly to a new injury.
[80] If under one year has elapsed between the end of the worker’s initial earnings replacement benefit and the recurrence of her lost earnings, then s. 75(2) says that “compensation shall be computed and be payable from the day on which the loss of earnings from the recurrence commences.” Her TERB picks up where it left off. The worker need not suffer another five week holdback or 26 week benefit reduction.
[81] This interpretation of ss. 75(1) and (2) is the established practice. I refer to WCAT decision 2005-015-AD, dated July 25, 2005:
Section 75(2) sets out a distinction between TERB for recurrences within one year of the previous loss of earnings ending, and recurrences beyond one year of the previous loss of earnings ending. The distinction is clearly in how compensation is computed and payable. Section 75(2) sets out specifically how and when TERB is computed and payable for recurrences within one year. It states that, for those recurrences, compensation is payable from the day of the recurrence of the loss of earnings and is computed from that date as well. Consequently, if a Worker has already had 26 weeks of TERB, his TERB would be computed at 85 percent, and is payable from the date of the recurrence of the loss of earnings (i.e. the two-fifths waiting period would not apply.)
Section 75(1) states that where TERB is payable, it is payable according to s. 37. For the Worker, that means that his TERB does not commence on the date of the recurrence of his loss of earnings, but after the two-fifths waiting period, and is payable at a rate of 75 percent for the first 26 weeks, regardless of the worker having already received TERB for 26 weeks. The only exception to TERB being paid in accordance with s. 37, is the distinction carved out by s. 75(2) for the recurrences within one year of the end of the last loss of earnings.
[82] Subsections 75(1) and (2), interpreted consistently with s. 37, have implications for Ms. Pelley’s appeal. Ms. Pelley’s TERB ended May 26, 2005, and her recurrence occurred within a year on August 1, 2005. Section 75(2) means that Ms. Pelley’s benefits picked up on August 1, 2005 where they stopped on May 25, 2005. This is consistent with her loss of earnings “commencing” with the May 2003 injury under s. 37. Had her lost earnings commenced on August 1, 2005, for eligibility under s. 37, she would have undergone another five week holdback and 26 week benefit reduction (75%) beginning on August 1, 2005. Similarly, Ms. Pelley’s earlier loss of earnings following the July, 2004 recurrence would have triggered yet another five week holdback and 26 week benefits reduction. This did not occur, and her benefits remained at the long term (85%) rate. That is because Ms. Pelley had already undergone the holdback and 26 week benefit reduction that were triggered by the commencement of her earnings loss in May 2003. Having avoided a second holdback and benefit reduction, Ms. Pelley may not consistently assert that her earnings loss commenced again on August 1, 2005.
Legislative Objective
[83] Ms. Pelley’s counsel refers to the case law that the Workers’ Compensation Act’s objective is remedial, and the Act requires a liberal interpretation. With that principle I agree. But the principle does not support the conclusion requested by Ms. Pelley. Section 37(10) extends an eligible worker’s entitlement beyond the normal termination of benefits at age 65. Section 75(2) in tandem with s. 37 avoids penalizing a worker who returns to work within one year, but finds that her attempt is premature because her injury is insufficiently mended. That worker, according to s. 75(2), should not endure another waiting period and another 26 week benefits reduction. These are remedial applications of the Act.
[84] Assume two workers each injured at age 62 years 9 months, with identical injuries and duration of disabilities. The first does not return to work. Her benefits will end on her 65th birthday under s. 37(9). The second attempts to return to work four months after her injury, at age 63 years one month, but must leave after a few days because her injury is insufficiently healed to permit the resumption of her employment functions. According to Ms. Pelley’s argument, the second worker’s brief return “commences” another earnings loss that entitles the worker to 24 months benefits under s. 37(10). If that worker once more attempts to return to work sometime after her first unsuccessful return, works for a few days, then again ceases employment because of the initial injury, she would be entitled to another 24 months of earnings replacement benefits under s. 37(10). This could repeat indefinitely. This second worker with these indefinite benefits under s. 37(10) has suffered the same injury with the same duration of disability as the first worker. The only difference is that the second worker attempted to return to work for a few days before she realized that her initial injury still did not permit a resumption of her job duties. The first worker correctly diagnosed that her injury would not permit her return to work.
[85] Nothing in the legislative objective behind earnings replacement benefits justifies such a distinction between these two hypothetical workers.
5. Conclusion
[86] In my view, Ms. Pelley’s loss of earnings “commenced” on May 5, 2003. On August 1, 2005 her earnings loss did not commence, but recurred. Her entitlement expired on her 65th birthday by s. 37(9), under the normal rule. As she was not yet 63 years of age or over at the date her loss of earnings commenced in May 2003, s. 37(10) does not apply. I would dismiss the appeal.
Fichaud, J.A.