PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - APPEAL DIVISION CAROL ANN BLANCHARD

Transcription

1 PROVINCE OF PRINCE EDWARD ISL IN THE SUPREME COURT - APPEAL DIVISION Date: Registry: Charlottetown BETWEEN: CAROL ANN BLANCHARD AD-0631 BETWEEN: LESTINA BISO AD-0632 BETWEEN: EUNICE BRENTON AD /2

2 BETWEEN: PATRICIA BURKE AD-0488 Place and Date of Hearing Charlottetown, Prince Edward Island AD-0631, AD-0632, AD November 20 and 21, 1997 AD December 8, 1997 Before: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice G.E. Mitchell The Honorable Mr. Justice J.A. McQuaid John W. Hennessey Counsel for the Appellants, Ms. Blanchard, Ms. Biso, Ms. Brenton John L. MacDougall, Q.C. Counsel for the Appellant, Ms. Burke J. Scott MacKenzie Counsel for the Respondent Linda M. Gaudet Counsel for the Intervenor Place and Date of Judgment Charlottetown, Prince Edward Island January 7, 1998 Written Reasons by: The Honorable Mr. Justice G.E. Mitchell Concurred in by: The Honorable Chief Justice N.H. Carruthers The Honorable Mr. Justice J.A. McQuaid

3 Date: Registry: Charlottetown AD-0631 CAROL ANN BLANCHARD AD-0632 LESTINA BISO AD-0634 EUNICE BRENTON AD-0488 PATRICIA BURKE (5 pages) Before: Carruthers, C.J.P.E.I.; Mitchell and McQuaid, JJ.A. Heard: November 20 and 21, 1997 and December 8, 1997 Judgment: January 7, /2

4 - 2 - WORKERS COMPENSATION - Right of Appeal - Findings of fact - Benefit of Doubt - Presumption of fact - Employer s objection not filed within prescribed time. The Court of Appeal upheld the decisions of the Workers Compensation Board denying benefits to the appellants. STATUTES CONSIDERED: Workers Compensation Act, R.S.P.E.I. 1988, Cap. W-7 (repealed), s-s.1(1), s.6, s-ss.6(1), 6(2), 6(4), s.17, s-ss.32(1) and (2), s-ss. 32(1)(a) and (j) John W. Hennessey, for the appellants, Ms. Blanchard, Ms. Biso, Ms. Brenton John L. MacDougall, Q.C., for the appellant, Ms. Burke J. Scott MacKenzie, for the respondent Linda M. Gaudet for the Intervenor

5 MITCHELL J.A.: [1] The appellant in each of these cases seeks an order setting aside a final decision of the respondent denying her compensation benefits because it concluded her disablement did not arise out of, and in the course of, her employment as required for eligibility under the Workers Compensation Act, R.S.P.E.I. 1988, Cap-W-7 (repealed)[hereinafter referred to Act@]. [2] The appellants applications for compensation were based on claims that they became ill and unable to work at a time when they were employed on unit 8 of the Hillsborough Hospital. They maintain that something in or about that workplace environment made them ill and that their disablement from it continues even though they no longer work there. It is not disputed that unit 8 was a malodorous and unpleasant place to work and has had some history of ventilation and air quality problems. The employer accepted that the appellants are ill and that they are not malingering. The contentious issue for the respondent to determine was whether their current disablement arose out of, and in the course of, their employment so as to entitle them to benefits under s.6 of the Act.The respondent resolved the issue against the appellants because it found they had not established any reasonable linkage between the workplace and their ongoing health problems. [3] The appeals filed by Mr. Hennessey on behalf of Ms. Blanchard, Ms. Biso, and Ms. Brenton are based on the grounds that the respondent erred by not giving them the benefits of s.17 and s-s.6(2) of the Act and by allowing the employer to intervene and object without its having complied with s-s.6(4) of the Act. The appeal filed by Mr. MacDougall on behalf of Ms. Burke is grounded on claims the respondent made overriding and palpable errors in its assessment of the evidence and that it did not give her the benefit of the doubt as required by s.17. [4] The provisions of the Act relevant to these appeals are as follows: 1.(1) In this Act (a) accident includes INTERPRETATION (I) a wilful and intentional act not being the act of the worker, (ii) a fortuitous event occasioned by a physical or natural cause, and (iii) disablement arising out of and in the

6 2 course of his employment; RIGHT TO COMPENSATION 6.(1) Where, in any industry within the scope of this Part, personal injury by accident arising out of and in the course of employment is caused to a worker, compensation as hereinafter provided shall be paid to the worker or his dependants... 6.(2) Where the accident arose out of the employment, unless the contrary is shown, it shall be presumed that it occurred in the course of the employment, and where the accident occurred in the course of employment, unless the contrary is shown, it shall be presumed that it arose out of the employment. 6.(4) Any person entitled to object to any claim that has been filed with the Board may do so by notifying the Board in writing within ten days of the date the claim has first been reported to the person objecting; the notice shall state fully the nature of the objection and the reasons therefor, and a copy of the report shall be handed to the worker or mailed to his latest known address. EFFECT OF ACT IN LAW 17. Notwithstanding anything in this Act, on any application for compensation an applicant is entitled to the benefit of the doubt, which means that it is not necessary for the applicant to adduce conclusive proof of his right to the compensation applied for, but the Board is entitled to draw and shall draw from all circumstances of the case, the evidence and medical opinions, all reasonable inferences in favour of the applicant. THE WORKERS COMPENSATION BOARD

7 32.(1) Except as stated in subsections (2) and (5), the decisions and findings of the Board upon all questions of law and fact are final and conclusive, and in particular, but not so as to restrict the generality of the powers of the Board hereunder, the following shall be deemed to be questions of fact: (a) the question whether an injury has arisen out of or in the course of any employment within the scope of this Act; 3 (j) the question whether personal injury or death has been caused by accident. (2) An appeal shall lie to the Appeal Division of the Supreme Court from any final decision of the Board upon any question as to its jurisdiction or upon any question of law, but such appeal can be taken only by permission of a judge of the Supreme Court, upon application within fifteen days after the rendering of the decision, and upon such terms as the judge may determine; notice of the application shall be given to the Board at least two clear days before presentation. [5] It is trite law that there is no right of appeal except to the extent provided by statute. Subsection 32(2) of the Act provides for appeals from a final decision of the respondent. However, this legislation only allows for appeals upon issues of jurisdiction and questions of law. There is no right to appeal the respondent s findings of fact, and this Court has no right to entertain such an appeal regardless of how much it might disagree with the respondent s assessment of the evidence. Subsection 32(1) specifically provides that the respondent s findings of fact are Afinal and conclusive.@ Furthermore, the Legislature expressly states in s-ss.32(1)(a) and 32(1)(j) that the questions of whether an injury has arisen out of, or in the course of, employment and whether personal injury has been caused by accident are ones of fact. Thus, the Legislature of this Province has made it clear that it wants the respondent alone and not the courts to decide those questions. That being the case, there is no right of appeal and we have no jurisdiction to interfere with the respondent s findings on those issues. [6] However, the broad and exclusive fact finding jurisdiction of the respondent is limited by s.17 of the Act. A failure to apply, or a misapplication of this provision, is subject to appellate review under s-s.32(2). The appellants contend the respondent s finding that their disablements did not arise out of, or in the course of, their employment resulted from its failure to give them the benefit of the doubt as required by s.17. However, I cannot agree. Section 17 does not mean that every claim must succeed if there is some evidence to support it. It only means that despite an applicant s failure to adduce conclusive proof of a

8 4 right to benefits, he or she should nevertheless be awarded them if their entitlement can reasonably be inferred by the respondent. The respondent must make its decision on whether such an inference is reasonable on the basis of the evidence as a whole. Section 17 only authorizes and directs the respondent to draw all of the inferences in favour of the applicant that are reasonable from its assessment of all the circumstances, evidence, and medical opinions. [7] The records in each case indicate the respondent made an extensive investigation of the claim, conducted a lengthy hearing, and that in the process of reaching its decision was mindful of the provisions of s.17 and s-s.6(2) of the Act and considered all of the circumstances, all of the evidence, and all of the medical opinions. These were not cases where the appellants claims were unchallenged, or where the respondent found the evidence for and against the appellants claims more or less equally balanced, or where it could not decide between alternative hypothesises. Based on its assessment of the evidence as a whole, the respondent concluded it could not reasonably infer the appellants disablements arose out of, and in the course of, their employment. On the contrary, the respondent concluded from its weighing of the evidence the best available hypothesis was that the disablements did not arise out of, and in the course of, the appellants employment. This conclusion displaces any presumption of fact that might otherwise prevail by virtue of s-s.6(2). It may be that another trier of fact could have reached a different conclusion but there is no other, and I can find no reversible error in what the respondent has done. [8] The remaining issue has to do with the respondent s permitting the employer to intervene and object without complying with s-s.6(4) of the Act. In my view, the respondent did not thereby lose jurisdiction or commit an error of law. Subsection 6(4) is directory not mandatory. The respondent still had a discretion to allow the employer to intervene despite non-compliance. I am unable to find that the respondent exercised that discretion improperly.

9 5 [9] For the sum of the forgoing reasons, each of the appeals is dismissed. Costs may be spoken to at a later date. I AGREE: Hon. Chief Justice N.H. Carruthers Hon. Mr. Justice G.E. Mitchell I AGREE: Hon. Mr. Justice J.A. McQuaid