Court File and Parties

CITATION: Chenard v. WSIAT, 2014 ONSC 6178

COURT FILE NO.: 971-14

DATE: 20141027

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

BETWEEN: MARCEL CHENARD, Applicant

• and - WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL, Respondent

BEFORE: MARROCCO A.C.J.S.C.O., D.L. CORBETT and HORKINS JJ.

COUNSEL: Claudia Lafreniere, on behalf of her uncle, Mr Chenard Andrew Lokan, for the Respondent

ENDORSEMENT

D.L. CORBETT J.

[1] We were advised at the outset that Mr Chenard had just been taken to hospital suffering from chest pains. Ms Lafreniere advised that Mr Chenard wished that the application proceed and that she present Mr Chenard’s argument. It was evident that Ms Lafreniere was familiar with the application materials. She assisted her uncle, Mr Chenard, to prepare them, and was well positioned to make the argument on his behalf. We were satisfied that it was in the interests of justice to proceed in this fashion. We were mindful throughout that if we developed concerns that we were not getting full argument on behalf of Mr Chenard, we could adjourn the application to a later date. We were satisfied that Ms Lafreniere put the argument fully and fairly, and that Mr Chenard was very well served by his niece’s persuasive presentation on his behalf.

[2] The respondent raised two preliminary concerns. First, it argued that the application should be dismissed for delay. Second, it argued that many materials filed before us by Mr Chenard had not been before the WSIAT. No application had been made to adduce fresh evidence, and it was evident that the proposed fresh evidence would not meet the stringent test established in the Palmer case.[^1] These arguments have considerable merit, but we prefer to rest our decision on the merits of the application rather than these preliminary issues. We should not be taken to have decided these preliminary issues on the merits.

[3] Mr Chenard worked for roughly 30 years in the mining industry. In 2004, he developed considerable pain in his right arm. He was diagnosed with an elbow injury, which his medical advisors attributed to repetitive stress arising from his use of heavy drilling equipment during the course of his employment. He applied for and received benefits for this condition for about eleven months. Mr Chenard received medical treatment for his elbow injury, including surgery in April 2005. Dr Chenard’s doctors considered that his elbow injury was fully resolved after he had recovered from his elbow surgery, and that he was able to return to work, without restrictions on account of his elbow injury, by late September 2005.

[4] Mr Chenard also developed a problem in his right shoulder. He claimed for benefits arising from this condition. This claim was denied. This denial was appealed, eventually to the WSIAT. By the time the issues reached the WSIAT, the issues to be decided were:

(a) whether the shoulder injury was caused by the elbow injury (in which case it was compensable); and

(b) if the shoulder injury was not caused by the elbow injury, did it arise from Mr Chenard’s employment as a result of an “accident”.

[5] The Tribunal reviewed the medical evidence and the other evidence before it in considerable detail. It concluded that the elbow injury arose after Mr Chenard stopped working because of his elbow injury. Thus it concluded that unless it was caused by the elbow injury, it did not arise from his employment.

[6] The Tribunal also considered whether it could be said that the shoulder injury, even though it arose after the elbow injury, was nonetheless caused by an “accident” at work.

[7] The Tribunal concluded that the answers to both questions were “no”.

[8] Mr Chenard disagrees with the Tribunal’s decision, including its factual determination that the injury to the shoulder arose after the injury to the elbow. He argues that he always complained about pain in his “upper arm”, and that, not being a doctor, he did not know whether the pain originated from an injury to his elbow, to his shoulder, or to both.

[9] The record could support both theories of the facts. There is no medical opinion in the record that assists with the timing of the shoulder injury. Rather, the Tribunal reached its conclusion on the basis of its reading of notes of reports made by Mr Chenard to his physicians, and other evidence of Mr Chenard’s contemporaneous reports of his injuries. On the Tribunal’s reading of all of this evidence, it concluded that it is more likely than not that the shoulder pain first arose during the summer of 2005, when Mr Chenard is first recorded to have made specific complaint about it.

[10] This kind of determination lies at the very core of the Tribunal’s mandate and competence. It is a finding of fact made on the basis of a detailed review and weighing of the evidence. The Tribunal made no error of law in arriving at this conclusion. And while there is evidence on both sides of this question, the Tribunal’s conclusion cannot be said to have been made without evidence or as a result of a fundamental mischaracterization of the evidence. We are not entitled to substitute our view of the evidence for that of the Tribunal, even if we consider that we might have come to a different conclusion.

[11] The factual determination of the timing of the shoulder injury is not, in any event, crucial to the Tribunal’s decision, in the sense that the result would have been the same even if the Tribunal had concluded that the shoulder pain had arisen earlier, or if the Tribunal had not been satisfied that it could say when the shoulder pain arose. The case really turns on the issue of causation.

[12] On the causation issue, the Tribunal correctly stated the legal test. Although it did not expressly state the presumption of causation in s.13(2) of the Workplace Safety and Insurance Act, it is clear from the Tribunal’s reasons that it was mindful of and applied this presumption.[^2] Mr Chenard’s own family physician declined to draw a causative link between the elbow injury and the shoulder injury, a position with which Board experts agreed. Mr Chenard’s family physician speculated that the shoulder injury could have been caused by a fall Mr Chenard had at work (an “accident” that did not cause the elbow injury). However, that speculation, in one clinical note, was withdrawn by the family physician when asked about it directly. In this follow up, the family physician also advised that he did not consider that this injury could be attributed to any other accident Mr Chenard had suffered at work. Board experts were of the view that the shoulder condition was not work-related.

[13] An adjournment of the Tribunal hearing in 2008 (at the applicant’s request) led to a resumption of the hearing in 2012, at which time Mr Chenard was permitted to present new evidence. There was ample time for Mr Chenard to present evidence showing that his shoulder injury arose from his employment. He did not do so. The evidence to the contrary before the Tribunal was sufficient to rebut the statutory presumption in s.13(2) of the Act. I see no error of law and no palpable and overriding error of fact. Therefore, I would dismiss the application.

[14] In all of the circumstances of the case, WSIAT does not request costs from Mr Chenard, a position that I consider appropriate in all the circumstances. There is no order as to costs.

[15] I repeat our comments to Ms Lafreniere at the conclusion of the hearing. The materials she helped her uncle prepare were written very well, and fairly and thoroughly stated her case. Her oral argument was persuasive and effective. She should be proud of her efforts on her uncle’s behalf.

[16] Finally, I am indebted to Mr Lokan for his excellent written and oral submissions.

D.L. CORBETT J.

MARROCCO A.C.J.S.C.O.

HORKINS J.

Date: October 27, 2014

[^1]: R. v. Palmer, 1979 SCC 8, [1980] 1 S.C.R. 759. [^2]: Workplace Safety and Insurance Act, S.O. 1997, c.16.