COURT OF APPEAL FOR ONTARIO
WEILER, ROULEAU and WATT JJ.A.
BETWEEN:
DENNIS MILLS
Applicant (Respondent)
and
WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL
Respondent (Appellant)
David W. Stratas, Brad Elberg and Daniel Revington for the appellant
Steven M. Barrett and Cindy Trower for the respondent
Heard: February 1, 2008
On appeal from the order of the Divisional Court (Chief Justice Heather Forster Smith, Justice Kent and Justice Pierce) dated November 15, 2006.
1This is an appeal from a decision of the Divisional Court allowing the respondent’s application for judicial review of a decision of the Workplace Safety and Insurance Appeals Tribunal (the Tribunal).
2The respondent was denied worker compensation benefits. He appealed this denial to the Tribunal. That appeal was unsuccessful as was a subsequent request for reconsideration. At issue was the factual determination of whether the respondent’s back problems stem from a back injury he sustained in 1979 when working for a dairy company.
3As framed by the parties the issue in this court is whether the Divisional Court, having correctly identified the standard of review as being patent unreasonableness, erred in the application of this standard to the Tribunal’s decision. Subsequent to the hearing of this appeal, the Supreme Court of Canada released its decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that decision, at para. 34, the Supreme Court of Canada determined that there should now only be two standards of review – correctness and reasonableness. The two variants of reasonableness review, reasonableness simpliciter and patent unreasonableness, are now collapsed into a single form of “reasonableness” review: Dunsmuir at para 45. Both parties agree that the standard of reasonableness as described in Dunsmuir applies in reviewing the Tribunal’s decision. As a result, I must determine whether the decision of the Tribunal meets the standard of reasonableness as described in the Dunsmuir decision.
FACTS
The injury
4The respondent hurt his back in 1979 while employed as a driver at a dairy. He was in the process of unloading a freezer from a truck when the tailgate collapsed. The respondent was supporting the freezer at the time and he was thrown to the ground describing the incident as “pulling everything” in his back.
5The respondent filed a workers’ compensation report, took two weeks off (but received no benefits as they were taken as holidays) and returned to work, eventually to regular assignments. In 1988, he was laid off and bought an interest in a grocery store, where he worked for three years. From 1990 to 1993, he worked as a truck driver.
6In 1990, the respondent’s family doctor referred him to an orthopaedic specialist, Dr. Jacqmin, because of complaints of back pain. In 1991, he was treated for severe back pain and diagnosed with a disc protrusion. In 1993, the respondent’s request to the Workers’ Compensation Board for benefits was denied.
The Tribunal hearing
7Before the Tribunal, the respondent testified that he suffered continuous pain after the 1979 incident. He explained that his medical record made no mention of back pain from 1979 to 1990 because he had told his family doctor not to note his complaints of back pain in the record for fear that it would interfere with his truck driver’s license, and in any event, his doctor had told him that there was nothing that could be done about the pain. His family doctor died prior to the Tribunal hearing and, consequently, only his medical records in respect of the respondent were available in the proceedings before the Tribunal.
8The respondent also called as witnesses two friends who had had periodic contact with him during the 1979 to 1990 period. They testified that the respondent had curtailed some activities due to his back condition but that he was “not a complainer”.
9A report prepared by Dr. Jacqmin was also filed. It expressed the view that the 1979 incident had made a significant contribution to the respondent’s ongoing low back problems.
10The Tribunal did not accept Dr. Jacqmin’s opinion and rejected the respondent’s claim. The Tribunal determined that a causal relationship between the respondent’s 1979 injury and his current back condition had not been made out on the record before it. The Tribunal noted that no fracture or degenerative disease had been identified in 1979, that the respondent continued to work at the same job for nine of the twelve following years and that he regularly underwent medical examination with no back problems being recorded. The Tribunal also noted that the respondent continued to enjoy snowmobiling and hunting – sports which the Tribunal felt were not compatible with a history of back pain.
The Divisional Court’s reasons
11On the judicial review application, the Divisional Court found that the applicable standard of review was patent unreasonableness meaning that the Tribunal is to be accorded the highest degree of deference. In its reasons, the Divisional Court undertook a detailed review of the Tribunal’s reasons concluding that the Tribunal had made several errors in fact-finding. Taken individually, these errors were small, however, the cumulative effect of the errors was to undermine the conclusion reached by the Tribunal.
12In the Divisional Court’s view, the Tribunal did not decide the case based on the evidence. Specifically, the Divisional Court found that there was no basis in the record upon which the Tribunal could rely to reject Dr. Jacqmin’s medical opinion as to causation. In the result, the Divisional Court concluded that Dr. Jacqmin’s opinion was determinative, that the Tribunal’s decision should be set aside and the respondent’s benefits claim allowed.
ISSUE
13The only issue in this appeal is whether the Divisional Court erred in setting aside the Tribunal’s finding that the respondent’s present back problems are not causally connected to the 1979 workplace injury. Because the Divisional Court applied the patently unreasonable standard, my analysis will include both a review of the Divisional Court’s decision applying that standard and a determination as to whether the Tribunal’s decision met the reasonableness standard as currently defined by the Supreme Court of Canada in Dunsmuir.
DISCUSSION
The law
14As noted, both parties agree that, in accordance with the Supreme Court of Canada’s recent decision in Dunsmuir, the standard of reasonableness applies to the review of the Tribunal’s decision. Reasonableness is concerned “with whether the decision falls within a range of possible, acceptable outcomes” depending on the particular legal and factual context. Dunsmuir at para. 47. Where the parties diverge is on the level of deference to be accorded to the decision within the “reasonableness” standard. In essence, the appellant submits that, within the reasonableness standard, there are varying degrees of deference that apply. The level of deference to be accorded will be determined by reference to existing jurisprudence. In this case, the jurisprudence has established that the highest level of deference applies to Tribunal decisions.
15In contrast, the respondent submits that the “reasonableness standard” does not contain varying degrees of deference. He relies on the decision in Law Society of New Brunswick v. Ryan (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.), which rejected the argument that “it is sometimes appropriate to apply the reasonableness standard more deferentially and sometimes less deferentially depending on the circumstances.” (para. 43).
16The appellant argues that Law Society of New Brunswick v. Ryan predates the decision in Dunsmuir and therefore has not considered the approach to deference when the standards of reasonableness and patent unreasonableness have been collapsed into a single standard. Although the majority in Dunsmuir did not offer specific comment on whether there are varying degrees of deference within the reasonableness standard, the appellant relies on the views expressed by Binnie J. in his concurring opinion. At para. 139, Binnie J. notes that the decision to collapse reasonableness simpliciter and patent unreasonableness served to “shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference.” [Emphasis in original.]
17The appellant argues that the reference in paragraph 62 of the majority reasons to the “degree of deference” lends further support to its submission. There, the majority set out the two step approach to judicial review as follows:
First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [Emphasis added.]
Although the respondent submits that this is simply a reference to the two standards, correctness and reasonableness, the appellant suggests reference to the “degree of deference” is confirmation that the majority shares Binnie J.’s view that there are different degrees of deference within the reasonableness standard.
18I understand the majority in Dunsmuir to be referring now to only two degrees of deference, correctness, where no deference is accorded, and reasonableness, where deference is accorded. It is not necessary or appropriate to then assess the degree of deference within the reasonableness standard.
19In my view, by collapsing the patently unreasonable standard and the reasonable standard, the majority has not set aside the court’s earlier decision in Law Society of New Brunswick v. Ryan, nor has it signalled that courts must now puzzle over the degree of deference to give to a tribunal within the reasonableness standard. The existence of varying degrees of deference within the single reasonableness standard suggests that a decision made by a tribunal will be found to be unreasonable if the court accords the tribunal a low degree of deference but that same decision will be found to be reasonable if the court decides to accord the tribunal a high degree of deference. I do not read the decision of the majority in Dunsmuir as encompassing any such approach.
20As the majority explained that para. 42:
[E]ven if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable from a merely irrational decision, it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough. It is also inconsistent with the rule of law to retain an irrational decision. As LeBel J. explained in his concurring reasons in Toronto (City) v. C.U.P.E., at para. 108:
In the end, the essential question remains the same under both standards: was the decision of the adjudicator taken in accordance with reason? Where the answer is no, for instance because the legislation in question cannot rationally support the adjudicator’s interpretation, the error will invalidate the decision, regardless of whether the standard applied is reasonableness simpliciter or patent unreasonableness. …
21The “revised system” established in Dunsmuir was designed in part to make the approach to judicial review of administrative decisions “simpler and more workable” (para. 45). An analysis of the varying degrees of deference to be accorded to the tribunal within the reasonableness standard, as submitted by the appellant, fails to comply with this objective.
22My conclusion does not signal that factors such as the nature and mandate of the decision-maker and the nature of the question being decided are to be ignored. Applying the reasonableness standard will now require a contextual approach to deference where factors such as the decision-making process, the type and expertise of the decision-maker, as well as the nature and complexity of the decision will be taken into account. Where, for example, the decision-maker is a minister of the Crown and the decision is one of public policy, the range of decisions that will fall within the ambit of reasonableness is very broad. In contrast, where there is no real dispute on the facts and the tribunal need only determine whether an individual breached a provision of its constituent statute, the range of reasonable outcomes is, perforce, much narrower.
23My interpretation on this issue is strengthened by the majority description of “reasonableness”. The description provided by the majority did not articulate varying degrees of deference, but instead referred simply to a deferential standard that mandates respect for the “decision-making process of adjudicative bodies with regard to both the facts and the law.” Dunsmuir at para. 48. The concept of reasonableness does not turn on a detailed analysis of whether the tribunal’s decision is subject to a high or low degree of deference. In defining the concept of reasonableness, the majority in Dunsmuir instead emphasized the following at para. 47:
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.
24In the present case, the issues raised on appeal relate to findings of fact made by the Tribunal. These findings fall squarely within the Tribunal’s area of experience and expertise and the basis for the findings is articulated in the Tribunal’s reasons. It is in this context that the guiding principles from Dunsmuir are to be applied to review the reasonableness of the Tribunal’s decision.
The appellant’s position
25In this court, the appellant submitted that, contrary to the Divisional Court’s view, there was an evidentiary basis for rejecting Dr. Jacqmin’s opinion on causation. Each of the Tribunal’s factual determinations was supported by the evidence and was a finding that it was entitled to make. In fact, says the appellant, it is the Divisional Court that made errors in its assessment of the evidentiary record.
26The appellant maintains that the Divisional Court, after correctly identifying the standard of review as being patent unreasonableness, then undertook a wholesale review and reweighing of the evidence. After this review and reweighing, the Divisional Court, according no deference to the Tribunal’s decision, simply reached a different conclusion than the Tribunal. At the hearing of the appeal, before Dunsmuir collapsed the two variants of unreasonableness review, the appellant submitted that the Tribunal’s decision would even have met the then lesser standard of reasonableness simpliciter. In the appellant’s view, the Divisional Court erred in substituting its own findings of the facts and reversing the Tribunal’s decision.
The respondent’s position
27In contrast, the respondent takes the position that, when the evidence is identified and accurately stated, it is clear that the Tribunal’s decision that the respondent’s workplace accident did not contribute to his degenerative disc disease was contrary to the evidence and patently unreasonable. The medical evidence before the Tribunal supported a causal link.
28The respondent further submits that there were also non-medical facts found by the Tribunal that were not supported by the evidence or could not support an inference that the respondent did not suffer back pain from 1979 to 1990. These included the assumption that the respondent’s complaints to his family doctor would have been recorded, the finding that he could not suffer from back pain because he continued to work, and the assumption that a person with back pain would not go hunting or ride a snowmobile.
29Lastly, the respondent relies on s. 124(2) of the Workplace Safety and Insurance Act 1997, S.O. 1997, c. 16, which requires that, where the evidence for and against a disputed compensation issue is of equal weight, it should be resolved in favour of the worker. According to the respondent, the Tribunal failed to comply with this statutory provision in this case.
The Divisional Court erred
30For the reasons that follow, I agree with the appellant that the Divisional Court committed several errors in its analysis of the evidence and, as a result, it erred in setting aside the findings and conclusions of the Tribunal.
31I readily concede that, on this record, one could well justify reaching a different result than the one reached by the Tribunal. There is much in this record that favours the respondent. This, however, is not the standard of review that I am to apply. The essence of the Divisional Court’s decision is its disagreement with the Tribunal’s conclusion in two respects: 1) Its finding that there was no history of continuing back pain, and 2) The rejection of Dr. Jacqmin’s opinion. Having erred in this respect, the Divisional Court found that the Tribunal’s decision was patently unreasonable. In my opinion, these two key aspects of the Tribunal’s decision have a sufficient evidentiary basis and provide a rational basis for its decision. The decision of the Tribunal was entitled to deference and the decision was neither patently unreasonable as the test then existed nor was it unreasonable when the current standard of review is applied.
32Further, the respondent’s submission respecting s. 124(2) of the Workplace Safety and Insurance Act 1997 has no application on this case.1 From its reasons, it is apparent that the Tribunal concluded that, on the whole, there was more in the evidence that favoured the determination that the 1979 accident was not the cause of the respondent’s current back problems. As a result, the evidence for and against the claim cannot be characterized as being approximately equal in weight. The Tribunal’s decision is to be assessed against a reasonableness standard which mandates deference. On this basis, and considering that this is a highly specialized expert Tribunal, it can be assumed that the Tribunal was aware of the policy that applies when the evidence is evenly balanced, but developed the view that the policy was not applicable in light of the evidence in this case.
33In the balance of these reasons, I will review the evidentiary basis for the Tribunal’s finding that there was no history of continuing back problems and, in the course of this review, identify errors in the Divisional Court’s analysis of the evidence. I will then review the basis upon which the Tribunal was entitled to reject Dr. Jacqmin’s opinion.
Was there an evidentiary basis for the Tribunal’s finding that there was no history of continuing back problems?
34In support of its conclusion that there was no history of continuing back problems, the Tribunal referred to several facts. The most significant among these were the following:
The respondent underwent regular medical examinations due to his employment and no back-related complaints were recorded;
The respondent continued to work for the dairy until 1987 as a driver and in the course of his functions, he “dragged” cases on ramps rather than carrying them;
From 1990 to 1993, the respondent drove a heavy truck carrying ore and “occasionally shoveling ore in a blast furnace”; and
The respondent continued to enjoy snowmobiling and hunting, sports which are not compatible with long histories of back pain.
35The Divisional Court characterized each of these findings as being “errors in fact finding”. I disagree. In each case the record provided a basis for these findings.
1) No record of back-related complaints
36The records of the respondent’s family physician contain no reference to back complaints prior to 1990. The Divisional Court determined that the absence of any reference should be given little or no weight because of the respondent’s explanation that he had asked his family physician not to make a note of his back problems out of concern that such a notation might have an impact on his truck operator’s license. The respondent also explained that, in any event, he was told that little could be done for a back problem of that kind. He would simply treat himself with Tylenol.
37This explanation could, if accepted by the Tribunal, explain the silence in the medical records. However, the Tribunal clearly did not accept the respondent’s explanation and, having died sometime before the hearing, the respondent’s physician could be of no assistance.
38The Tribunal’s reasons do not specifically address the respondent’s explanation. However, it is clear from the reasons that the Tribunal did not accept his explanation. In my view, it had a rational basis for doing so. A review of the record discloses that the respondent’s explanation as to why there was no notation in his family physician’s records was not given at the time his claim for compensation was made and when the claim was first investigated. The explanation came much later in the course of the appeal process. Further, the respondent’s explanation conflicts with the information he apparently provided to Dr. Jacqmin and upon which Dr. Jacqmin relied for his opinion. Dr. Jacqmin’s report notes that the respondent had been seeing his family physician for his back problems and did so to obtain medication. If the reason for the respondent’s visit to the physician was his back and if medication were being prescribed, the physician would have been required to record any prescription.2
39Although it would have been preferable had the Tribunal’s reasons specifically addressed the respondent’s evidence on this point, the failure to do so does not, in my view, make the Tribunal’s reliance on the silence of the medical records an error.
2) The respondent continued working at the dairy and “dragged” cases on the ramp
40The Tribunal’s reasons refer to the respondent having continued to work as a driver at the dairy and having “dragged” cases on the ramp rather than carrying them. The Divisional Court said that this was an error and that the finding did not accord with the respondent’s unchallenged evidence.
41In reaching this conclusion, the Divisional Court does not appear to have considered information contained in the various reports that were contained in records of the Workplace Safety and Insurance Board. These records were filed as exhibit 1 at the hearing and the reports contained therein constitute evidence on which the Tribunal can rely: Workplace Safety and Insurance Act, 1997, ss. 125(4) and 132(3). Those reports disclose that, following the filing of his claim, the respondent was interviewed by a claims investigator who, in 1993, reported that, while working at the dairy, the respondent “claims he would generally drag more so than lift as there were ramps and rollers. One would have to push or pull trays of milk down a ramp.”
42Contrary to the Divisional Court’s finding, there is, in my view, support in the record for the Tribunal’s finding.
3) The respondent occasionally shoveled ore in a blast furnace
43The Tribunal’s reasons note that, while employed as an inter-city truck driver hauling ore for a mining firm, the respondent had occasionally (on down days) shoveled ore in a blast furnace. The Divisional Court found that there “was no such evidence at the hearing.”
44Again in this instance, the Divisional Court does not appear to have considered the information contained in the reports filed at the hearing. The same 1993 claims investigator’s report of an interview with the respondent set out that, during the time the respondent drove trucks “[i]f there was a down day [the respondent] might have been required to shovel at #7 blast furnace, however, this did not occur often”. In my view, therefore, the Tribunal’s finding had a basis in the evidence.
4) The snowmobiling and hunting evidence
45The Tribunal’s reasons state that the respondent “was able to continue to enjoy snowmobiling and hunting, sports which are not compatible with long histories of back pain”. The Divisional Court criticized this finding by the Tribunal because it did not ask the respondent about the frequency of his snowmobiling and hunting, the kinds of terrain traveled on and whether he was driver or passenger of the snowmobile. Further, the Divisional Court noted that the Tribunal had not mentioned the fact that the respondent now wears a brace when snowmobiling nor did it ask about any accommodations that might have been made to allow the respondent to hunt.
46I agree that the type of inquiries suggested by the Divisional Court may have provided additional useful information. On this point, it is of some significance that the respondent and two witnesses testified that after traveling to a hunt camp in 1991, the respondent’s back pain became so severe as to require his hospitalization. It is not an irrational inference that had the respondent continued to suffer back pain when hunting or snowmobiling he would not have continued these activities. Based on this evidence and drawing on its experience and expertise in processing such claims, it was open to the Tribunal, even in the absence of expert evidence, to view such sports as being incompatible with long histories of back pain.
47Although the Tribunal’s conclusion on the evidence may be disagreed with, it is not as the Divisional Court held, without any evidentiary basis.
Was the Tribunal entitled to reject the opinion of Dr. Jacqmin?
48Dr. Jacqmin’s opinion was that the 1979 injury made a significant contribution to the respondent’s current low back problems. This opinion, however, was premised in part on the information provided to him by the respondent to the effect that over the years he had had persistent back pain and that he saw his family physician on and off for this problem to obtain medication.
49As I have set out above, the Tribunal did not accept the respondent’s testimony in that regard. This substantially undermines the value of the expert opinion.
50Further, the Tribunal had before it a report on the X-ray that was taken shortly after the 1979 injury. That report states that there was no fracture or dislocation shown and that no significant degenerative disc changes were apparent.
51The Tribunal was provided with a report prepared by its own medical consultant. That report opined that the evidence on file did not support a definite relationship between the ongoing back problems since 1990 and the 1979 accident.
52All of this evidence provides an adequate basis for the Tribunal’s rejection of Dr. Jacqmin’s opinion.
53The Divisional Court’s conclusion that the Tribunal had no basis upon which to reject Dr. Jacqmin’s opinion is founded, at least in part, on the Divisional Court’s own view that the evidence established that the respondent’s back problems had been continuous from the day of the accident forward. As I have explained, I have concluded that the Divisional Court erred in setting aside the Tribunal’s finding that the respondent did not have continuing back problems following the 1979 workplace accident. Further, the Divisional Court only makes a passing reference to the X-ray evidence in its reasons and does not address the role that these X-rays may have played in the Tribunal’s rejection of Dr. Jacqmin’s opinion.
54Finally, the Divisional Court discounted the evidence of the Tribunal’s medical consultant. It did so because, in their view, the medical consultant based her report on incorrect information. Specifically, the Divisional Court indicated that the consultant erred when she stated that the respondent did not appear to have lost any time from work due to the accident. In response, the appellant argues that the statement is correct in the sense that the respondent did not suffer any unpaid days as a result of the accident and never collected workplace safety insurance benefits. This is because the respondent, who was absent from work for approximately two weeks, had taken this time as holidays. The appellant submits that the consultant’s comment should be interpreted in this way and should not be taken to be an error. In any event, even if the statement contained in the consultant’s report is considered to be an error, the Tribunal itself was well aware of the correct fact situation and would have given appropriate weight to the consultant’s report.
CONCLUSION
55The Tribunal considered and weighed all of the evidence and made a factual determination on the issue of causation. It concluded that the 1979 accident was not the cause of the respondent’s current back problems. The Tribunal made no significant errors in fact-finding and the reasoning adopted to reach its conclusion is clearly outlined. Neither the reasoning nor the conclusion is unreasonable. The Divisional Court erred in setting aside the Tribunal’s findings and conclusion.
56For these reasons, I would allow the appeal and reinstate the decision of the Tribunal. As the appellant does not seek costs, I would make no order as to costs.
“Paul Rouleau J.A.”
“I agree K.M. Weiler J.A.”
“I agree David Watt J.A.”
RELEASED: June 3, 2008
Footnotes
- Although, as noted by the appellant, s. 124(2) of the Workplace Safety and Insurance Act was not in force at the time of the hearing, a board policy to the same effect was in existence and, pursuant to s. 126 of the Act, that policy was to be applied by the Tribunal.
- See O. Reg. 114/94, made under the Medicine Act, 1991, S.O. 1991, c.30, s. 18(1)7, which requires any member of the College of Physicians and Surgeons to make records for each patient containing a record of the disposition of the patient including “an indication of each treatment prescribed or administered by the member.” The member is also required to obtain a record of the assessment of the patient, including “the particulars of each medical examination by the member.” (s. 18(1)6).
