Jun 23, 2016

AREAS OF LAW: Employment; Workers’ compensation; Judicial review; Standard of review

Boyd v JBS Foods Canada Inc., 2015 ABCA 380 (CanLII)

Where a judicial review court examines and reweighs evidence, it is applying a correctness standard of review and may be improperly substituting its own conclusion for that of the tribunal under review.~

BACKGROUND: The Respondent, Larry Boyd, worked for the Appellant, JBS Foods Canada Inc., and its predecessor from 2000. In 2011 he worked as a down-pull operator at the Appellant’s meat processing facility. This employment required him to transfer cow hides from a moving conveyor to another machine to be processed. When the transferring machine was not working, the Respondent manually transferred the hides. On February 10, 2011, the Respondent complained of an injury from this activity. The following day the Appellant filed an injury report. The report indicated that the Respondent experienced pain in his upper and middle back, right shoulder and neck. The Respondent filed a workers’ compensation (“WCB”) claim to receive compensation for his injuries. The Appellant prepared a physical demands analysis setting out the physical requirements for a down-pull operator, in which it classified the work as requiring light physical activity including occasionally handling less than 10 kgs. The Respondent disagreed, and obtained a critical job demands summary (“CJDS”) from LifeMark Health Centre. The CJDS concluded that the down-pull operator occasionally lifts or manually handles light and medium loads, but also noted that over 300 hides go through the transfer process per hour and a down-pull operator may have to perform 50 manual transfers per day. The Respondent participated in a return-to-work planning meeting but also submitted a description of his job in which he disagreed with the CJDS assessment. He felt the assessment more accurately reflected his work during the summer but not the winter. In the winter hides were significantly heavier and he had to lift, twist, and pull the hides to transfer them. He also stated that in winter he had to do manual transfers very often, because the machine did not properly pick the hides up. The doctor at the processing facility diagnosed the Respondent with bilateral shoulder tendonitis, while the Respondent’s family doctor diagnosed cervical radiculopathy at C4-C6. He ordered an MRI, which showed disc narrowing, disc protrusion, and hypertrophy. In light of the conflicting medical opinions, WCB sought an opinion from its own medical consultant. The WCB doctor noted that the MRI findings did not correlate with symptoms according to medical reporting, and concluded that the symptoms and the MRI findings were inconsistent with the physical demands of the job. The Respondent also received treatment from a chiropractor, who took the opinion that employment duties could have contributed to the Respondent’s pain. The chiropractor reached this conclusion after a review of the other medical reports and a statement from the Respondent that he was required to lift up to 60 lbs on a regular basis. The matter proceeded through WCB case management, dispute resolution, the WCB decision review body, and finally the WCB Appeals Commission. At each stage the decision makers found that the Respondent’s injuries did not arise out of or occur in the course of employment as required by the legislation and the applicable WCB policies. On judicial review, the Court of Queen’s Bench found the Appeals Commission’s conclusion unreasonable because it based its analysis on a faulty understanding of the Respondent’s job. In particular, the judicial review judge noted that the Appeals Commission was fixated on the number of manual transfers the Respondent would perform on a typical day, but did not account for days of prolonged machine failure when significantly more manual transfers would be required. The judge also found the decision unreasonable because the Appeals Commission relied on the WCB doctor’s opinion to the exclusion of the other expert opinions, when the WCB doctor was the only one who received and commented on the CJDS. The matter was remitted back to the Appeals Commission for a new hearing.

APPELLATE DECISION: The appeal was allowed. The questions on appeal were whether the reviewing court applied the appropriate standard of review, and whether the Appeals Commission’s decision met the applicable standard. It was clear that the reviewing court properly selected reasonableness as the appropriate standard of review, but the Court of Appeal found that it was de facto applying a correctness standard of review when it overtly examined and reweighed the factual evidence before the Appeals Commission. There was no evidence on the record to show that the Appeals Commission misunderstood the evidence regarding the nature of the Respondent’s job. The reviewing court also improperly speculated and extrapolated from the evidence that was before the Appeals Commission. There was no reason the Respondent could not have provided the CJDS to his medical expert if he wanted a second opinion based on it. The Appeals Commission’s interpretation and application of its own statute, and its conclusion, were reasonable, transparent, and intelligible.