SUPREME COURT OF NOVA SCOTIA Citation: Hyson v. Nova Scotia (Public Service LTD), 2016 NSSC 153

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1 SUPREME COURT OF NOVA SCOTIA Citation: Hyson v. Nova Scotia (Public Service LTD), 2016 NSSC 153 Date: Docket: Hfx No Registry: Halifax Between: Annette Louise Hyson Applicant v. Nova Scotia Public Service Long Term Disability Plan Trust Fund and Dr. Colin F Davey Respondents LIBRARY HEADING Judge: Heard: Subject: Summary: The Honourable Justice James L. Chipman April 28, 2016 in Halifax, Nova Scotia Judicial review Appeal Board s consideration of extrinsic evidence in denying LTD benefits The Applicant is an employee of the Nova Scotia Department of Natural Resources, insured for long term disability under the Nova Scotia Public Services Long Term Disability Plan. She applied for LTD benefits and was denied. The Applicant made further submissions and the denial was maintained. She appealed and the matter was referred to an Appeal Board. The Appeal Board conducted its own research and denied the appeal.

2 Issues: (1) Was the Applicant owed procedural fairness? (2) Did the Appeal Board s reliance on outside sources result in a breach of the duty of fairness? Result: As an administrative decision-maker, the Appeal Board owed Ms. Hyson procedural fairness, which is a sufficient basis for judicial review. The Appeal Board s use of independent research, without giving the Applicant an opportunity to respond, violated the duty of fairness. Procedural fairness is a fundamental tenet of judicial review and should not in any circumstances be ignored. In this case, it is apparent that the outside research significantly influenced the result. Accordingly, the decision of the Appeal Board was set aside and Ms. Hyson s appeal was referred to a newly constituted Appeal Board. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET.

3 SUPREME COURT OF NOVA SCOTIA Citation: Hyson v. Nova Scotia (Public Service LTD), 2016 NSSC 153 Date: Docket: Hfx No Registry: Halifax Between: Annette Louise Hyson Applicant v. Nova Scotia Public Service Long Term Disability Plan Trust Fund and Dr. Colin F. Davey Respondents Judge: Heard: The Honourable Justice James L. Chipman April 28, 2016, in Halifax, Nova Scotia Counsel: Nicolle A. Snow, for the Applicant Colin D. Bryson, Q.C. and Kristin Pike, for Nova Scotia Public Service Long Term Disability Plan Trust Fund Dr. Colin F. Davey, not appearing

4 Page 2 By the Court: Introduction [1] The Applicant is an employee of the Nova Scotia Department of Natural Resources. Ms. Hyson is insured for long term disability under the Nova Scotia Public Services Long Term Disability Plan. She applied for LTD benefits and was denied. The Applicant made further submissions and the denial was maintained. She appealed and the matter was referred to an Appeal Board. The Appeal Board denied the appeal. [2] By amended Notice for Judicial Review, the Applicant requests judicial review of the decision of the Appeal Board. She seeks review on these grounds: a) the decision maker applied the wrong test and considered the wrong factors when determining whether the applicant was disabled within the meaning of the Plan; b) the decision maker referenced documents and information that were not admitted into evidence and were not properly before the Medical Appeal Board in the decision making process; c) the decision maker made findings of fact based on information and documents that were not admitted into evidence and were not properly before the Appeal Board, and applied those findings of fact in his determination; d) the decision maker gave evidence in the course of the decision making process; and e) the decision maker ignored or disregarded important medical opinions and evidence that were properly before the Appeal Board, causing the Appeal Board to come to a wrong determination. [3] The decision maker referred to above is the Respondent, Dr. Colin F. Davey. Dr. Davey sat as a sole member of the Appeal Board and his decision was provided to the Applicant s lawyer on December 16, 2015.

5 [4] By amended Notice of Participation, the Respondent, Nova Scotia Public Service Long Term Disability Plan Trust Fund, says the Application should be dismissed on grounds that the Appeal Board: a) applied the correct test; b) did not consider incorrect factors; c) did not inappropriately reference evidence not before the Appeal Board; d) did not make findings of fact on evidence not properly before the Appeal Board; and e) did not give evidence. [5] The parties filed briefs and books of authorities and presented oral arguments. Books of records comprising nearly 1700 pages formed the Record before the Court. The Appeal Board Decision Page 3 [6] The Trustees to the LTD Plan and Dr. Davey entered into an agreement for Dr. Davey to act as the Appeal Board. The second recital of the agreement says the Appeal System is contained in s. 6 of the LTD Plan, which includes: a) The appeal will be limited to determining whether or not the employee is disabled, as defined herein. [7] Subpara. 1(ca) of the LTD plan provides as follows: disability / disabled means, for employees whose elimination period commences on or after May 1, 2002 and who make a claim under the Plan, the complete inability, as defined from time to time in Guidelines made pursuant to this Plan, of an employee, because of illness or injury, to perform the regular duties of his/her occupation during the applicable elimination period and the next 24 months of any period of disability. Thereafter, an employee remains disabled if he/she is unable to engage in any occupation for remuneration or profit for which the employee is or may become fit through education, training, experience or rehabilitation, which occupation pays not less than 75% of the current rate of the position, class and step he/she held prior to disability. [8] The parties agree, as I find, that the Appeal Board was tasked with determining on a balance of probabilities, whether Ms. Hyson s diagnoses disabled her from her own occupation.

6 Page 4 [9] At page one of Dr. Davey s 28 page decision, he states: The issue before the Medical Appeal Board is whether or not Annette Hyson meets the criteria for disability benefits under the own occupation definition of disability. [10] On the last page, he concludes: In conclusion the Medical Appeal Board having considered all of the above information finds Ms. Annette Hyson diagnoses do not meet the criteria for functional capacity impairment limitation based on the objective evidence. The functional capacity restriction is based on reported side effects or symptoms. There is insufficient information to recommend restricting activities beyond a sedentary to light level of work demand. The Plan definition states the complete inability to meet job requirements warrants total disability. Ms. Hyson does not meet the criteria for total disability. Ms. Hyson s Appeal for Long Term Disability benefits under the own occupation clause is denied. [11] The Applicant is now into the any occupation period as the change of definition date occurred on January 1, Jurisdiction [12] The LTD Plan (s. 6(1) and (2)) states that an Appeal Board decision is final. This is reiterated in the LTD Plan s Appeal Guidelines under no. 17: The Appeal Board s decision is final and binding and not open to judicial review. [13] Notwithstanding the wording of the LTD Plan, the parties agree, and I find, that the Court has jurisdiction to review the Appeal Board decision. The jurisdiction comes from the Supreme Court of Canada s leading decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190 (see paras ). In the wake of this decision, courts have consistently held that a privative clause (such as s. 6(1) and (2)) cannot remove the judiciary s power to review actions and decisions of administrative bodies for legality, fairness and reasonableness.

7 Page 5 Grounds of Review in Context [14] When I consider the five grounds of review in the context of the record and counsels argument, it is clear that the main ground relates to the allegation that the Appeal Board considered evidence that was not properly before it. For reasons that will become apparent, I have decided to firstly deal with this ground or issue. Standard of Review Applicable to the Issue of the Appeal Board Considering Extrinsic Evidence [15] As our Court of Appeal stated in Jono Developments Ltd. v. North End Community Health Association, 2014 NSCA 92, at para. 41, no standard of review analysis governs judicial review, where the complaint is based upon a denial of natural justice or procedural fairness. [16] In Labourers International Union of North America, Local 615 v. CanMar Contracting Ltd., 2016 NSCA 40, Justice Fichaud had cause to review the above passage from Jono Developments Ltd. At para. 46, Justice Fichaud noted that the Jono decision relied on the earlier Nova Scotia Court of Appeal decision of Nova Scotia (Community Services) v. T.G., 2012 NSCA 43 at para. 90: [90] A court that considers whether a decision maker violated its duty of procedural fairness does not apply a standard of review to the tribunal. The judge is not reviewing the substance of the tribunal s decision. Rather the judge, at first instance, assesses the tribunal s process, a topic that lies outside standard of review analysis: Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, at para. 74, per Arbour J.; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paras , per Binnie J.; Creager v. Nova Scotia (Provincial Dental Board), 2005 NSCA 9, paras ; Kelly v. Nova Scotia Police Commission, 2006 NSCA 27 [Burt v. Kelly], para. 19; Nova Scotia (Community Services) v. N.N.M., 2008 NSCA 69, para. 39; Allstate Insurance Company v. Nova Scotia (Insurance Review Board), 2009 NSCA 75, para. 11; Communications, Energy and Paperworkers Union of Canada, Local 141 v. Bowater Mersey Paper Co. Ltd., 2010 NSCA 19, paras [Justice Fichaud s bolding included.] [17] Fichaud, J.A. continued in Labourers International Union of North America, Local 615 at para. 47: [47] The reason there is no standard of review for a matter of procedural fairness is that no tribunal decision is under review. The court is examining how

8 the tribunal acted, not the end product. If, on the other hand, the applicant asks the court to overturn a tribunal s decision including one that discusses procedure a standard of review analysis is needed. The reviewing court must decide whether to apply correctness or reasonableness to the tribunal s decision. (e.g. Coates, supra, paras ) Page 6 [18] In the matter before the Court, Dr. Davey s decision is, of course, under review. Nevertheless, part of grounds (b) and (c) relate to how the Appeal Board acted. Once again, the Applicant alleges Dr. Davey referred to materials or admitted into evidence documents that were not properly before him. [19] In her rebuttal brief and in oral argument, the Applicant gives specific examples of Dr. Davey s reliance on outside information, referring to: a) Hill s criteria for causation; b) notifbutwhen.ca; c) drugbank.ca; d) New England Journal of Medicine; e) AMA Guides to the Evaluation of Permanent Impairment, 6 th edition; and f) CDC Guidelines. [20] Referring to the above, Ms. Hyson asserts she had, absolutely no opportunity to respond to the evidence and information the decision maker referred to and relied on in coming to a decision. This is plainly wrong. [21] Ms. Hyson characterizes this as a breach of procedural fairness, referring to Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, at p. 661, Edmonton Police Association v. Edmonton (City of), 2007 ABCA 184 at paras. 3 and 4, and Brant v. Nova Scotia (Human Rights Commission), 2013 NSSC 56 at para. 10. [22] The above cases address the importance of procedural fairness, albeit do so without directly dealing with the issue of a decision maker relying on outside sources. In any event, Article 2 of the agreement between Dr. Davey and the Trustees is entitled Operation of the Appeal Board and states as follows at 2.08: The Appeal Board members shall render decisions in an independent manner and shall only receive and consider submissions from the Claims Administrator, staff of the LTD office or the appellant and his/her representatives at hearings scheduled and conducted in accordance with the appeal procedures set out in the Plan, the Appeal Guidelines, this Agreement and the Guidelines made pursuant to the Plan. Both the Trustees and the appellant, directly or through their

9 Page 7 representatives, shall be given adequate notice and full opportunity to present their respective cases to the Appeal Board. [emphasis added] [23] In response to the allegation of procedural unfairness, the Respondent argues that Dr. Davey s consultation with outside sources is akin to a Judge referring to legal authorities (not referenced by the parties) in deciding a case. For example, at para. 93 of his brief, Mr. Bryson asserts: The Appeal Board consists of a doctor who, by virtue of his profession, clearly has medical expertise. It is submitted that it is expected that this Appeal board will use its expertise to evaluate the evidence and arrive at a conclusion. It is submitted that it is expected that the Appeal Board will use its general knowledge and ability to draw upon other relevant sources to make a decision that is factually and medically sound and supported by the evidence. Just as Justice of this Court would not be validly criticized for referring to a dictionary, case law or legal treatise not referenced by the parties in making a decision, the Appeal Board should not be criticized for referencing the above sources. Doing so is not a reviewable error. [24] The Respondent goes on to cite authority for the proposition that an arbitrator may update caselaw presented to him or her (see Greater Toronto Airport Authority v. Public Service Alliance Canada, Local 0004, 2011 ONSC 487, at paras ). Further, the Respondent refers to caselaw to the effect that a tribunal should be expected to use its background, experience, skill and specialized knowledge in analyzing and evaluating evidence. [25] With respect, when I review the totality of the outside sources reviewed by Dr. Davey, I find they amount to far more than the analogy to updating caselaw. Indeed, I am drawn to the Applicant s submission that Dr. Davey s independent research violated the principles of procedural fairness by foreclosing Ms. Hyson s ability to respond. [26] In Islam v. Nova Scotia (Human Rights Commission), 2012 NSSC 67, Justice McDougall noted as follows at para. 24: The Commission is free to determine its own procedures. That being said, those procedures must meet minimal demands of procedural fairness. I am not satisfied that denying a right of reply in these circumstances accords with this standard. The distinguishing point is that Dalhousie's submission ignored the issue upon which it was invited to provide its views prejudice to the University arising

10 from an extension of time for Dr. Islam to file his complaint and instead offered the university's views on exceptional circumstances and the public interest. I am satisfied that procedural fairness demanded that Dr. Islam be given an opportunity to reply to the University's position on these issues. [Emphasis added.] Page 8 [27] Several cases from the Nova Scotia Court of Appeal hold that it is a material error to resort to extrinsic authority (see Nova Scotia (Community Services) v. B.F., 2003 NSCA 119, G.L. v. Children's Aid Society of Cape Breton-Victoria, 2003 NSCA 112, Children s Aid Society and Family Services of Colchester County v. E.Z., 2007 NSCA 99 and R. v. B.M.S., 2016 NSCA 35). Nevertheless, in Gallant v. Gallant, 2009 NSCA 56, the Court of Appeal added that a tangential mention, which does not materially alter the result, is appropriate (see para. 13). [28] When I consider the circumstances of this case coupled with the Baker factors (see Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817) and the procedural fairness jurisprudence, I arrive at the conclusion that the Applicant should have been afforded the opportunity to respond to the independent research. [29] Based on my review of the Record inclusive of Dr. Davey s decision (as will be more fully addressed below), I am of the view that his reliance on the outside sources amounts to much more than tangential mention. Accordingly, I have determined it appropriate to continue my analysis in the context of the Appeal Board decision, as set out in the following section. Standard of Review Applicable to the Appeal Board s Decision [30] Recently, in Nova Scotia Liquor Corporation v. Nova Scotia (Board of Inquiry), 2016 NSCA 28, Justice Bourgeois drew on Supreme Court of Canada authority in explaining when to apply either the standard of correctness or reasonableness to an administrative decision: [27] When to apply the two alternatives, was nicely summarized by Fish, J. in Smith v. Alliance Pipeline Ltd., 2011 SCC 7 as follows: [26] Under Dunsmuir, the identified categories are subject to review for either correctness or reasonableness. The standard of correctness governs: (1) a constitutional issue; (2) a question of general law that is both of central importance to the legal system as a whole and outside the

11 adjudicator s specialized area of expertise (Dunsmuir, at para. 60 citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62); (3) the drawing of jurisdictional lines between two or more competing specialized tribunals; and (4) a true question of jurisdiction or vires (paras ). On the other hand, reasonableness is normally the governing standard where the question: (1) 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 (para. 54); (2) raises issues of fact, discretion or policy; or (3) involves inextricably intertwined legal and factual issues (paras. 51 and 53-54). [emphasis added] [31] On the issue of the Appeal Board consulting outside sources, the parties agree, and I find, that his decision should be reviewed pursuant to a standard of correctness. Page 9 [32] The Applicant says Dr. Davey, in determining she was not disabled, applied the wrong test and considered the wrong factors. She emphasizes that the Appeal Board misdirected itself by straying from the task at hand. Ms. Hyson says that Dr. Davey set out definitions and referenced terms which were not in keeping with the LTD Plan definition of disability (subpara. 1(ca)). [33] I have reviewed Dr. Davey s decision in the context of the extrinsic evidence. Dr. Davey begins by stating that the issue before him is whether the Applicant meets the Plan definition of disabled and then immediately proceeds to consider her diagnoses in the context of the definition of the AMA Guides to the Evaluation of Permanent Impairment. The AMA Guides informs his approach to the distinction between a disease and a syndrome, which leads to his use of Hill s criteria for causation. This piece of extrinsic evidence creates a framework for Dr. Davey assessing the likelihood of Ms. Hyson s Post Treatment Lyme Syndrome (PTLS) diagnosis. Rejection of this diagnosis is central to the dismissal of the appeal and the extrinsic evidence therefore plays a considerable role in Dr. Davey s decision. [34] When I review the decision, it is my finding that the use of the website drugbank.ca was similarly significant. In this regard, the Appeal Board indicated that the Applicant s symptoms could be explained as drug interactions with side-effects, effectively rebutting the diagnosis of PTLS. Accordingly, this extrinsic source was utilized to determine the properties of the drugs Ms. Hyson was taking toward a differential diagnosis. In my view, this significantly

12 Page 10 influenced the rejection of the probability of PTLS. Similarly, the use of the website notifbutwhen.ca had a significant impact on the finding that Ms. Hyson was not cognitively impaired. This factored heavily into the finding that she was not disabled within the Plan s definition. [35] In the result, it is my finding that Dr. Davey s reliance on outside information was significant and caused him to stray from the task at hand. In so doing, it is my finding that Dr. Davey s decision was incorrect. [36] Given my conclusions on grounds of appeal (b) and (c), it is not necessary for me to address the other grounds raised by the Applicant. Conclusion [37] As an administrative decision-maker, the Appeal Board owed Ms. Hyson procedural fairness, which is a sufficient basis for judicial review. Dr. Davey s use of independent research violated the duty of fairness. [38] Procedural fairness is a fundamental tenet of judicial review and should not in any circumstances be ignored. In this case, it is apparent that the outside research significantly influenced the result. Accordingly, I hereby set aside the decision of the Appeal Board. Further, I order that Annette Louise Hyson s appeal be referred to a newly constituted Appeal Board. [39] If the parties cannot agree on costs, I will receive written submissions within 30 days. Chipman, J.

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