A Workers’ Compensation policy on new evidence is within the specialized area of the decision-maker.

Gallant v. Alberta (Workers’ Compensation Board), [2017] A.J. No. 889, 2017 ABQB 520, Alberta Court of Queen’s Bench, August 25, 2017, D.L. Shelley J.

On February 21, 2012, the respondent, Mr. Tanguay, was involved in an automobile accident with the applicants. The applicant sustained injuries as a result of the accident and had claims approved by the Worker’s Compensation Board (“WCB”). Mr. Tanguay did not file a claim with WCB. Nonetheless, the WCB determined that Mr. Tanguay was not in the course of his employment at the time of the accident. Mr. Tanguay did not receive the WCB decision as it was only sent to his liability insurer. On February 19, 2014, the applicants filed actions, claiming substantial damages, against Mr. Tanguay.

On December 4, 2014, Mr. Tanguay requested the WCB determine his status at the time of the accident. WCB replied that a decision had been made on this issue and that the one-year limitation period to appeal the decision expired on April 4, 2013. Mr. Tanguay submitted new evidence that he had received proper notice and sought to appeal the earlier determination. The WCB initially denied his request but on September 15, 2015, issued a new decision (the “Decision”) granting Mr. Tanguay an extension of time. The applicants sought a judicial review of the Decision.

The parties differed in their position on the appropriate standard of review. The applicant’s argued correctness ought to apply while Mr. Tanguay submitted that reasonableness applies. The Court held that a WCB policy on new evidence is within the specialized area of the decision-maker and, as such, reasonableness was applied as the standard of review.

The Court considered if the Decision erred in admitting Mr. Tanguay’s fresh evidence as “new evidence” under the policy. The Court held that the WCB transparently and intelligibly rectified its previous error that proper service was effected which met the reasonableness standard of review. The Court considered the phrase “advise in writing” under the governing legislation meant that the worker must be notified “through an actual and direct delivery of the decision” on entitlement to compensation.

In the result, the Court concluded that the Decision was transparent, intelligible and justifiable and fell within a range of possible, acceptable outcomes which are defensible in both fact and law. Accordingly, the application for judicial review was dismissed.